In two direct appeals, the Second Circuit addressed follow-on issues arising from United States v. Taylor, 142 S. Ct. 2015 (2022) (holding that attempted Hobbs Act robbery is not an 18 U.S.C. § 924(c)(3)(A) crime of violence).
In United States v. Collymore, No. 19-596 (2d Cir. March 7, 2023) (per curiam) (Sullivan, Park, Nardini), the Circuit, on direct appeal, vacated 18 U.S.C. §§ 924(c) and 924(j)(1) convictions predicated on attempted Hobbs Act robbery in light of Taylor. Taylor itself required vacatur of the § 924(c) conviction, and the Circuit reasoned that because a § 924(c) violation is an element of a § 924(j)(1) offense, Taylor also required vacatur of the latter conviction.
However, the Circuit rejected, on plain-error review, Collymore’s argument that his guilty plea was invalid. At Collymore’s Rule 11 colloquy, the magistrate judge had advised him—correctly, under pre-First Step Act law—that his §§ 924(c) and 924(j)(1) counts stacked and carried a 30-year mandatory minimum. However, by the time of Collymore’s sentencing, the First Step Act had eliminated stacking and reduced the mandatory minimum to 15 years. Despite this change, Collymore did not ask to withdraw his guilty plea or go to trial, and instead proceeded to sentencing. On appeal, therefore, the Circuit concluded that he had failed to satisfy the third plain-error prong, as he had not shown a reasonable probability that he would not have pleaded guilty if he had been told that the mandatory minimum was only 15 years.
In United States v. Morris, No. 16-6 (2d Cir. March 7, 2023) (Cabranes, joined by Menashi; Lohier concurring), the Circuit, on direct appeal, vacated a § 924(c) conviction predicated on attempted Hobbs Act robbery in light of Taylor, but affirmed a § 924(c) conviction predicated on VICAR assault with a deadly weapon, 18 U.S.C. § 1959(a)(3), which was in turn predicated on N.Y. Penal Law §§ 120.05(2) and 120.10(1).
As to the affirmance, the Circuit explained:
(i) VICAR assault, § 1959(a)(3), is divisible as between assault with a deadly weapon and assault resulting in serious bodily injury, and the Shepard documents established that Morris had been convicted of the former.
(ii) VICAR assault with a deadly weapon is further divisible as among the possible state or federal predicates, and the Shepard documents established that Morris had committed second-degree assault, § 120.05(2) (with intent to cause bodily injury, causes such injury with a deadly weapon), and perhaps first-degree assault, § 120.10(1) (with intent to cause serious bodily injury, causes such injury with a deadly weapon).
(iii) Both New York assaults are § 924(c)(3)(A) crimes of violence. See United States v. Laurent, 33 F.4th 63, 92 (2d Cir. 2022) (§ 120.05(2)); Singh v. Garland, 58 F.4th 34, 36-37 (2d Cir. 2022) (§ 120.10(1) under 18 U.S.C. § 16(a) elements clause).
In footnote 9, the majority (Cabranes, joined by Menashi), expressed dissatisfaction with the categorical approach and urged Congress to provide a legislative solution. Judge Lohier concurred as to all of the majority opinion except that footnote, and wrote separately to comment that there is “some wisdom” in the categorical approach. In Judge Lohier’s view, the categorical approach “promotes judicial and administrative efficiency by precluding the relitigation of past convictions,” and “is more protective” of defendants’ Fifth and Sixth Amendment rights at sentencing.