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Thursday, October 15th, 2020

Fourth Circuit: Attempted Hobbs Act Robbery Is Not A 924(c) Crime Of Violence

In United States v. Taylor, the Fourth Circuit became the first court of appeals to hold that attempted Hobbs Act robbery is not a crime of violence under 18 U.S.C. § 924(c)(3)(A)’s elements clause.

Taylor granted a successive 28 U.S.C. § 2255 motion and vacated the movant’s § 924(c) conviction, which had been predicated on both conspiracy to commit Hobbs Act robbery (not a crime of violence under Fourth Circuit precedent, nor under the Second Circuit’s decision in United States v. Barrett, 937 F.3d 126 (2d Cir. 2019)); and (attempted Hobbs Act robbery.

Taylor reasons that one may attempt Hobbs Act robbery by (i) intending to commit a robbery through a threat of force, and (ii) taking a nonviolent substantial step toward that objective, such as planning the robbery or reconnoitering the target. “Where a defendant takes a nonviolent substantial step toward threatening to use physical force—conduct that …

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Wednesday, June 3rd, 2020

The Second Circuit vacates and remands for resentencing because of the erroneous application of the Sentencing Guidelines enhancements for possessing a “dangerous weapon” (§ 2B3.1, cmt. n.2) and “physical restraint” (§ 2B3.1(b)(4)(B)) – – which increase the offense level for robbery offenses. United States v. Taylor, No. 18-1710,  __F.3d__, 2020 WL 2745536  (May 27,  2020). 

In United States v. Taylor, the Circuit interprets two provisions of the Sentencing Guidelines that increase the offense level for robbery. It concludes that the sparse facts “set forth in the Presentence Report (PSR), upon which the district court relied at sentencing, are insufficient to support the application of either enhancement.” 2020 WL 2745536 at *1.

First, the Circuit holds that a defendant’s “hand” doesn’t become an “object” qualifying for the “dangerous weapon” enhancement when he gestures (with his hand) that he has a gun in his belt, but he’s actually unarmed and doesn’t have an object that “resembles” a gun. See U.S.S.G.§ 2B3.1(b)(2)(E).

Second, on the physical restraint enhancement, the Circuit holds that a robber’s act of ordering  a person to move from one room into another room — without actually retraining the person or locking the person in a room — doesn’t qualify as “physical[] restrain[t]” under …

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Categories: breach, guideline, robbery

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Thursday, January 23rd, 2020

Another Court Rules Attempted Hobbs Act Robbery is NOT a “Crime of Violence”

As blogged about here, Judge Johnson of the E.D.N.Y. has ruled that attempted Hobbs Act robbery is not a “crime of violence” under 18 U.S.C. § 924(c).

He’s just been joined by Judge Telesca of the W.D.N.Y.  “[A]ttempted Hobbs Act robbery does not categorically entail the use, threatened use, or attempted use of force.”  Lofton v. United States, 2020 WL 362348, at *9 (W.D.N.Y. Jan. 22, 2020).  That is because the “requisite categorical approach,” by “which a court must examine ‘the minimum criminal conduct necessary for conviction,’” shows that the crime can be committed “‘without any use, attempted use, or threatened use of violence.’”  Id. at *7 (citations omitted).

As briefed in a pending case, United States v. Pica, E.D.N.Y. 08-559, the minimum conduct for attempted Hobbs Act robbery is surveilling a target with the intent to rob him but not actually use force: in short, to bluff.  …

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Friday, January 10th, 2020

EDNY: Attempted Hobbs Act Robbery Is Not A § 924(c) Crime of Violence.

In United States v. Tucker, 2020 WL 93951 (E.D.N.Y. Jan. 8, 2020), the district court (Johnson, J.), held that attempted Hobbs Act robbery is not a crime of violence under 18 U.S.C. § 924(c), and granted defendant’s pretrial motion to dismiss a § 924(c) count predicated on that offense.

Tucker reasons as follows: An attempt requires only a substantial step toward completing the object crime, and for Hobbs Act robbery, “the Second Circuit has found ‘reconnoitering the place contemplated for the commission of the crime’ or possession of ‘paraphernalia to be employed in the commission of the crime’ to be sufficient to constitute a ‘substantial step.’” Tucker, 2020 WL 93951, at *5 (quoting United States v. Jackson, 560 F.2d 112, 120 (2d Cir. 1977)). Such conduct is not necessarily forceful or violent:

“[A] person may engage in an overt act—in the case of robbery, for example, … …

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Friday, November 1st, 2019

Connecticut First-Degree Robbery is a Crime of Violence Under Section 16(a)

Continuing to develop its “crime of violence” jurisprudence, the Second Circuit held that Connecticut first-degree robbery, Section 53a-134(a)(4), is a crime of violence under 18 U.S.C. § 16(a).

In Wood v. Barr, 17-514-ag (2d Cir. Nov. 1, 2019), a lawful permanent resident facing deportation argued that his Connecticut robbery conviction was not a “crime of violence,” and therefore not an aggravated felony.

Since the Supreme Court struck down Section 16(b)’s so-called residual clause in Sessions v. Dimaya, the Second Circuit focused on Section 16(a)’s elements clause. This provision defines a “crime of violence” as an offense that has an element requiring “the use, attempted use, or threatened use of physical force against the person or property of another.” The Circuit adopted its rationale in an earlier decision, United States v. Bordeaux, 886 F.3d 189 (2d Cir. 2018), which addressed New York first-degree robbery. The Circuit noted that …

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Wednesday, January 16th, 2019

Loss in Stokeling

Yesterday, in Stokeling v. United States, the Supreme Court held that Florida robbery is a violent felony under the Armed Career Criminal Act (ACCA). In doing so, the Court modified Johnson‘s understanding of the degree of “force” necessary for to satisfy the ACCA’s force clause. The excellent summary below is courtesy of Aamra Ahmad, of the Sentencing Resource Counsel Project, and Paresh Patel, Appellate Chief for the District of Maryland Federal Defenders:

Today, in Stokeling v. United States (17-5554), the Court revisited the meaning of the term “physical force” as it is used in the elements clause of the ACCA statute. In Johnson v. United States, 559 U.S. 133, 140 (2010), the Court defined “physical force” as a quantity of “force capable of causing physical pain or injury.” But in Johnson, the Court also used words such as “severe,” “extreme,” “furious,” or “vehement” to define “physical …

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Categories: ACCA, categorical approach, robbery

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Friday, October 12th, 2018

ACCA Oral Arguments in Stokeling & Stitt (and FDNY nondelegation argument in Gundy!)

This week the Supreme Court heard oral arguments in two cases addressing whether specific state offenses are violent felonies within the meaning of the Armed Career Criminal Act (ACCA): Stokeling v. United States (Florida robbery statute that punishes takings by slight force), and United States v. Stitt (state burglary statutes that punish vehicle break-ins). The statutes at issue are similar to the New York robbery and burglary statutes in their scope.

For a detailed analysis of the arguments in these cases, see Rory Little’s analysis at SCOTUSBlog.

The transcript in Stokeling is available here.

The transcript in Stitt, which featured a masterful oral argument by Jeffrey Fisher, is available here.

Speaking of masterful, the FDNY’s Sarah Baumgartel recently argued before the Supreme Court in United States v. Gundy on the question of whether SORNA’s delegation of authority to the Attorney General under 42 U.S.C. § 16913 …

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Categories: ACCA, burglary, categorical approach, robbery, Sex offender registration

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Friday, September 7th, 2018

Second Circuit Holds that all Degrees of New York Robbery Are Crimes of Violence

A Second Circuit panel held today that, under the force clause of the subsequently revised U.S.S.G. § 2L1.2 (2014), all degrees of New York robbery are crimes of violence. United States v. Pereira-Gomez, No. 17-952 (2d Cir. 2018) (Cabranes, Carney, Caproni (SDNY)) (appeal from Azrack, J., EDNY), opinion available here. Despite this holding, practitioners are urged to preserve the argument that New York robbery is not a crime of violence under the force clause, as the Supreme Court will soon be deciding this issue in Stokeling v. United States, No. 17-5554.

Mr. Pereira-Gomez was convicted of illegal reentry, in violation of 8 U.S.C.§§ 1326(a) and 1326(b)(2). The version of U.S.S.G. § 2L1.2 then in effect provided for a sentencing enhancement if the defendant had a prior conviction for an offense that “has as an element the use,attempted use, or threatened use of physical force against …

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Monday, August 27th, 2018

Judge Gold Holds that New York Third Degree Robbery Is Not a Violent Felony Under the ACCA

Magistrate Judge Gold (SDNY) recently issued a Report & Recommendation (R&R), available here, concluding that third degree New York robbery, N.Y. Penal Law §160.05, is not a violent felony under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). See Baldwin v. United States, No. 16-CV-3350. Judge Korman has adopted the R&R.

Judge Gold’s reasoning will be familiar to those who have read opinions by the First Circuit, Judge Rakoff, and others reaching the same conclusion. Significantly, Judge Gold rejects the reasoning of a Sixth Circuit opinion, Perez v. United States, 885 F.3d 984, 990 (6th Cir. 2018), holding that third degree NY robbery is a crime of violence under the ACCA. The Sixth Circuit’s holding, Judge Gold explains, relies on a recent New York Court of Appeals case for the proposition that New York robbery cannot be “a taking” “by sudden or stealthy …

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Thursday, March 8th, 2018

Second-Degree NY Robbery Is A Crime of Violence Under the Pre-2016 Career Offender Residual Clause

Today, in a short opinion, the Second Circuit confirmed that second-degree robbery in New York is categorically a crime of violence under the residual clause of the pre-2016 Career Offender Guideline (COG). See U.S.S.G. § 4B1.2 (2015). The opinion in United States v. Smith, No. 15-3313 (2d Cir. 2018) (Winter, Cabranes, Restani) (appeal from Failla, J., SDNY), is available here.* (A separate panel reached the same conclusion, with less analysis, earlier this week in United States v. Dove.)

Its decision, the Smith panel held, was compelled by Jones II, where the Second Circuit held that under Beckles first-degree robbery is a crime of violence under the pre-2016 COG’s residual clause. See Smith, slip op. at 9-10 (“The rationale of Jones is directly applicable to this case. In New York law, the first element of second-degree robbery is the same as the first element of …

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Thursday, December 21st, 2017

Second Circuit Holds that First-Degree Robbery is a Violent Felony Under the ACCA

In a disappointing but relatively narrow opinion, the Second Circuit held yesterday that first-degree New York robbery is a violent felony for purposes of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The opinion in United States v. Stuckey, No. 16-4133 (Chin, Droney, Restani (Ct. Intl. Trade) (appeal from Oetken, J., SDNY), is available here. Significantly, the panel expressly declined to address whether second- or third-degree New York robbery is a violent felony under the ACCA — and its holding does not speak to those questions.

The issue in Stuckey is whether, in order to constitute a violent felony under ACCA, an offense must require that a defendant intend to use violent force. Specifically, the issue is whether an offense can constitute a violent felony under the ACCA if it involves the degree of force required under Johnson v. United States (“Johnson I”), …

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