In the Second Circuit, a substantive Hobbs Act robbery qualifies as a “crime of violence” for purposes of § 924(c) under its elements (or force) clause, § 924(c)(3)(A). See United States v. Hill, 890 F.3d 51 (2d Cir. 2018). But a conspiracy to commit Hobbs Act robbery does not qualify as a crime of violence for purposes of § 924(c), because United States v. Davis, 139 S. Ct. 2319 (June 24, 2019), invalidated the residual clause of § 924(c)(3)(B) as unconstitutionally vague (and a conspiracy does not qualify under the elements clause).
That leaves the question of whether attempted Hobbs Act robbery qualifies as a § 924(c) crime of violence after Davis. The Second Circuit has not answered this question — i.e., whether attempted Hobbs Act robbery “has as an element the use, attempted use, or threatened use of physical force against the person or property of another” — in a published decision.
There is a strong argument that attempted Hobbs Act robbery does not qualify as a § 924(c) crime of violence after Davis. Here is the gist.
There are only two elements of a federal attempt offense: “[T]he defendant ‘(a) had the intent to commit the object crime and (b) engaged in conduct amounting to a substantial step towards its commission.’” United States v. Anderson, 787 F.3d 51, 73 (2d Cir. 2014) (quoting United States v. Farhane, 634 F.3d 127, 145 (2d Cir. 2011)). And for a defendant to have taken a “substantial step,” he “must have engaged in more than ‘mere preparation,’ but may have stopped short of ‘the last act necessary’ for the actual commission of the substantive crime.” Id. at 74 (quoting United States v. Celaj, 649 F.3d 162, 171 (2d Cir. 2011)). Thus, “[a] defendant may be convicted of attempt even where significant steps necessary to carry out the substantive crime are not completed, so that ‘dangerous persons [may be apprehended] at an earlier stage . . . without immunizing them from attempt liability.’” United States v. Yousef, 327 F.3d 56, 134 (2d Cir. 2003) (quoting United States v. Jackson, 560 F.2d 112, 120 (2d Cir. 1977)).
The Second Circuit, like every other federal appellate court, has adopted the Model Penal Code’s definition and standards for federal attempt. Jackson, 560 F.2d at 117-18. See generally Leonard B. Sand et al., Modern Federal Jury Instructions (Criminal) ¶ 10.1 at 10-3 (2018). In defining what constitutes a “substantial step,” the MPC lists several examples of conduct or circumstances it deems legally sufficient (so long as they are “strongly corrobative of the actor’s criminal purpose,” the first element of attempt). See MPC § 5.01(2). Conduct qualifying as a “substantial step” includes “reconnoitering the place contemplated for the commission of the crime”; “possession of materials to be employed in the commission of the crime, which are specifically designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances”; and “soliciting an innocent agent to engage in conduct constituting an element of the crime.” Id. § 5.01(2)(c), (e) & (g), discussed in Jackson, 560 F.2d at 118 and United States v. Stallworth, 543 F.2d 1038, 1040-41 n. 5 (2d Cir. 1976).
Jackson is instructive. There, defendants were charged with two counts of attempted bank robbery (based on two separate attempts to rob the same bank) and argued on appeal that the evidence was insufficient to sustain those convictions. The evidence showed that “[o]n two separate occasions, appellants reconnoitered the place contemplated for the commission of the [robbery] and possessed the paraphernalia to be employed in the commission of the crime — [several firearms, handcuffs, and masks] — which was specially designed for such unlawful use and which could serve no lawful purpose under the circumstances.” 560 F.2d at 120.
Relying on the MPC, the Second Circuit rejected defendants’ arguments: “Under the Model Penal Code formulation, . . . either type of conduct was sufficient as a matter of law to constitute a ‘substantial step’ if it strongly corroborated their criminal purpose.” Id. (emphasis added). That defendants “reconnoitered the place contemplated for the commission of the” crime was sufficient to establish the actus reus of attempted bank robbery. Id.
Therefore, a defendant who intends to rob a gas station, discusses his plans with a confederate, gathers some masks and gloves, and then carefully reconnoiters a particular location as his target is guilty of attempted Hobbs Act robbery. He “(a) had the intent to commit the object crime and (b) engaged in conduct amounting to a substantial step towards its commission.” Farhane, 634 F.3d at 145. Under Jackson and the MPC, his conduct constitutes a “substantial step” “as a matter of law” — “reconnoitering the place contemplated for the commission of the crime.” 560 F.2d at 118 (quoting MPC § 5.01(2)(c)).
One can therefore commit attempted Hobbs Act robbery without using, threatening to use, or attempting to use physical force. Preparing for a robbery by reconnoitering a potential target does not require any use of force. At least three judges of the Eleventh Circuit agree. See, e.g., United States v. St. Hubert, 918 F.3d 1174, 1210–13 (11th Cir. 2019) (Jill Pryor, J., joined by Wilson and Martin, JJ., dissenting from denial of rehearing en banc) (attempted Hobbs Act robbery is not a § 924(c) “crime of violence” because it does not have “as an element the use, attempted use, or threatened use of physical force against the person or property of another”); see also Hylor v. United States, 896 F.3d 1219, 1225-26 (11th Cir. 2018) (Jill Pryor, J., concurring) (attempted Hobbs Act robbery does not qualify under elements clause because one can commit this offense by “renting a getaway van, parking the van a block from the bank, and approaching the bank door before being thwarted — without having used, attempted to use, or threatened to use force.”).
And while the Second Circuit has ruled that attempted New York robbery qualifies as a “violent felony” under the (very similar) elements clause of the Armed Career Criminal Act (ACCA), United States v. Thrower, 914 F.3d 770, 776–77 (2d Cir. 2019), it has not issued a precedential decision resolving whether attempted Hobbs Act robbery qualifies under the elements clause of § 924(c). Indeed, Thrower distinguished federal attempt from New York attempt, explaining that “the federal ‘substantial step’ test ‘ushered in a broader view of attempt’ than that employed at common law” and under New York’s “dangerously near” formulation. Id. at 777 (quoting Farhane, 634 F.3d at 146); see also United States v. Pereira–Gomez, 903 F.3d 155, 166 (2d Cir. 2018) (holding that attempted New York robbery qualifies as a “crime of violence” under Guidelines because “criminal attempt under New York law … requires that the action taken by an accused be ‘so near to its accomplishment that in all reasonable probability the crime itself would have been committed, but for timely interference’”) (quoting People v. Mahboubian, 74 N.Y.2d 174, 196 (1989)). Thrower even quoted People v. Acosta, 80 N.Y. 2d 665, 670 (1993), for the proposition that “New York’s attempt statute is ‘more stringent’ than the ‘substantial step test . . . adopted by [the Second Circuit].'” Thus, there is a substantial argument that attempted Hobbs Act robbery, like conspiracy to commit Hobbs Act robbery, does not qualify as a § 924(c) “crime of violence” after Davis.