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 undoubtedly satisfies the elements of attempted Hobbs Act robbery—the defendant has not used, attempted to use, or threatened to use physical force. Rather, the defendant has merely attempted to threaten to use physical force. The plain text of § 924(c)(3)(A) does not cover such conduct.” Slip op., at 8.
With Taylor, the Fourth Circuit creates a split with the Seventh, Ninth, and Eleventh Circuits, all of which have held that attempted Hobbs Act robbery is a § 924(c)(3)(A) crime of violence. United States v. Ingram, 947 F.3d 1021 (7th Cir. 2020); United States v. Dominguez, 954 F.3d 1251 (9th Cir. 2020); United States v. St. Hubert, 909 F.3d 335 (11th Cir. 2018). The question is open in the Second Circuit. See Biba v. United States, 788 F. App’x 70, 72 (2d Cir. 2019). However, several pending Second Circuit appeals present the question. United States v. McCoy, No. 17-3515 (argued 10/23/19); United States v. Collymore, No. 19-596 (argued 6/1/20); United States v. Morris, No. 16-6 (argued 6/25/20).
At least six district courts within the Second Circuit have held that attempted Hobbs Act robbery is not a § 924(c)(3)(A) crime of violence. FNU LNU v. United States, 2020 WL 5237798 (S.D.N.Y. Sept. 2, 2020); United States v. Culbert, 2020 WL 1849692 (E.D.N.Y. Apr. 13, 2020); United States v. Pica, 08 Cr. 559 (CBA) (E.D.N.Y. March 17, 2020), Dkt. No. 378; United States v. Cheese, 2020 WL 705217 (E.D.N.Y. Feb. 12, 2020); Lofton v. United States, 2020 WL 362348 (W.D.N.Y. Jan. 22, 2020); United States v. Tucker, 2020 WL 93951 (E.D.N.Y. Jan. 8, 2020).
The takeaway for practitioners is simple: object to the use of attempted Hobbs Act robbery as a § 924(c) predicate, in whatever posture (pretrial, trial, appeal, § 2255), citing Taylor and the district court cases collected above. Because the Circuit split will persist however the Second Circuit decides the question, Supreme Court review of this question is possible.
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