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, … renting a getaway van, parking the van a block from the bank, and approaching the bank’s door before being thwarted—without having used, attempted to use, or threatened to use force. Would this would-be robber have intended to use, attempt to use, or threaten to use force? Sure. Would he necessarily have attempted to use force? No.”
Id. at *6 (quoting United States v. St. Hubert, 918 F.3d 1174, 1212 (11th Cir. 2019) (Jill Pryor, J., dissenting from denial of rehearing en banc)).
Tucker rejects the government’s argument that an attempt to commit a crime of violence is itself a crime of violence: “Such an absolute rule … seems at odds with the requirements of the categorical analysis,” which considers only the minimum conduct necessary for conviction. Id. Rather, Tucker rules, “given the broad spectrum of attempt liability, ‘the elements of attempt to commit robbery could clearly be met without any use, attempted use, or threatened use of violence.’” Id. (quoting United States v. Alfonso, 2019 WL 1916199, at *3 (D. Conn. Apr. 30, 2019)).
This issue is currently pending in the Second Circuit (in, at least, United States v. Nolan, No. 16–3423). In the meantime, practitioners should preserve objections to the use of attempted Hobbs Act robbery as a § 924(c) predicate.