Second Circuit Holds that Attempted Hobbs Act Robbery Is a § 924(c) “Crime of Violence.”

The Circuit ruled today in United States v. McCoy, No. 17‑1315(L) (Kearse, Parker, and Sullivan, JJ.), that the crime of attempting to commit a Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), remains a “crime of violence” under 18 U.S.C. § 924(c), even after United States v. Davis, 139 S. Ct. 2319 (2019). The Circuit had previously held that a completed Hobbs Act robbery is a “crime of violence,” United States v. Hill, 890 F.3d 51 (2d Cir. 2018), but that a conspiracy to commit Hobbs Act robbery is not, United States v. Barrett, 927 F.3d 126 (2d Cir. 2019).

In McCoy, the Circuit rejected the defendants’ argument that attempted Hobbs Act robbery, like conspiracy to commit Hobbs Act robbery, does not qualify as a “crime of violence” because it does not necessarily have “as an element the use, attempted use, or threatened use of physical force against the person or property of another,” as required by 18 U.S.C. § 924(c)(3)(A). Judge Kearse’s opinion for the Court reasoned: “To be guilty of Hobbs Act attempted robbery, a defendant must necessarily (1) intend to commit all of the elements of a substantive robbery, including the use of physical force, and (2) take a substantial step towards Committing the substantive robbery, which logically includes taking a substantial step towards completing all of its elements, including the use of force.”

McCoy is also noteworthy for an additional holding. The Circuit ruled that the offense of aiding and abetting either a completed Hobbs Act robbery or an attempted Hobbs Act robbery qualifies as a § 924(c) “crime of violence.”

The Circuit’s opinion, however, may not be the final word on these subjects. The Fourth Circuit holds that attempted Hobbs Act robbery does not qualify post-Davis as a “crime of violence.” United States v. Taylor, 979 F.3d 203, 210 (4th Cir. 2020). So the Supreme Court may have to resolve the split. As a result, you should continue to preserve the issue of whether attempted Hobbs Act robbery (or aiding and abetting an attempted Hobbs Act robbery) is a “crime of violence,” even though the issue is now foreclosed in the Second Circuit.