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Second Circuit Joins Majority On Circuit Split, Finding Attempted Hobbs Act Robbery Qualifies As Crime of Violence under Section 924(c)

In United States v. McCoy (Kearse, Parker, Sullivan), the Second Circuit held that attempt to commit Hobbs Act robbery qualifies as a crime of violence, siding with the majority of circuit courts, and parting ways with the Fourth Circuit and numerous district courts within the Second Circuit.  The panel decision also drew a fine distinction, holding that aiding and abetting Hobbs Act robbery qualifies as a crime of violence under Section 924(c), while reaffirming that conspiracy to commit Hobbs Act robbery does not qualify as a predicate.  The court also remanded for consideration of a First Step Act question, which may permit the defendants to lessen their astronomical punishments, which were imposed prior to the First Step Act’s enactment.

As the latest in a series of categorial approach cases, McCoy is yet another reminder of the knotty litigation that will continue to bedevil federal courts following Johnson v. United States, 576 U.S. 591 (2015), and its progeny.  In light of the circuit split on attempted Hobbs Act robbery, the Supreme Court may well be forced to take up the issue—or address attempted crimes of violence more broadly.  Given that Justice Gorsuch was recently the swing vote on two categorical approach cases, Sessions v. Dimaya, 138 S. Ct. 1204 (2018), and United States v. Davis, 139 S. Ct. 2319 (2019), and in light of Justice Barrett’s intervening appointment since those cases were decided, changes may be afoot for this area of doctrine. 

Within the Second Circuit, the decision also underscores the extreme importance of diligent research in categorical approach cases.  Defendants are highly unlikely to win these challenges unless they are able to point to specific cases demonstrating that statutes are used in a particular manner.  Just arguing that the statute could be used to prosecute certain non-violent conduct may not be enough for a defendant to prevail.  Here, the defendants argued that the text of the statute encompassed certain minimum, non-violent conduct—but the Second Circuit faulted defendants for not unearthing cases reflecting those facts.  Yet it is distinctly possible that such cases did exist: numerous district courts within the Second Circuit have pointed to minimum conduct cases that they believed demonstrated that attempted Hobbs Act robbery could be committed without the requisite force.  The fact that the panel here did not grapple with these other potential minimum conduct cases is all the more noteworthy, given that—as in all categorical approach cases—the ramifications of this decision will extend far beyond this particular case, affecting all defendants within the Second Circuit charged with these same offenses. 

Background

The case centered on a series of home invasions in the Rochester, NY area.  The two defendants principally targeted drug dealers and others that they believed were unlikely to alert the authorities.  The operation was fairly complex, with each burglary involving multiple actors, and the defendants going so far as to place tracking devices on some victims’ cars.  In at least some instances, victims were at home when the burglaries occurred—thereby converting the burglary into a robbery—and the victims were tied up and/or beaten.

The two defendants were charged with, inter alia, a series of Hobbs Act offenses and firearm-related offenses under Section 924(c).  The district court instructed that both defendants were charged as principals and as aiders and abettors, who are “just as guilty of that offense as if they had committed it themselves.” 

The jury convicted on all counts.  The two defendants were given the enormous sentences of 155 and 135 years, respectively.  The sentences derived largely from “stacking” the firearms counts, with the imposition of 25 consecutive years for each 924(c) conviction.

The Categorical Approach

Readers of this blog are no doubt familiar with the flood of litigation flowing from Johnson, 576 U.S. 591.  For further general background, see prior coverage here, and, for discussion of Section 924(c) specifically, see our previous post here.

Hobbs Act Robbery Crimes of Violence under Section 924(c)

Section 924(c) imposes longer sentences for defendants who use or carry firearms in relation to drug trafficking crimes or crimes of violence.  Section 924(c)(3)(A)—the elements clause—defines “crime of violence” to be an offense that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”  Section 924(c)(3)(B)—the residual clause—was held invalid by the Supreme Court in Davis, meaning that courts must now decide whether specific statutes qualify as crimes of violence under the elements clause alone.  The length of the sentence—which is to be imposed consecutively to the sentence imposed on the underlying crime—depends on whether the firearm was possessed (five years), brandished (seven years), or discharged (ten years).  18 U.S.C. § 924(c)(1)(A).

The McCoy panel was not the first to reach some of the Hobbs Act robbery questions.  In United States v. Barrett, 937 F.3d 126 (2d Cir. 2019), a panel already decided that, following Davis, conspiracy to commit Hobbs Act robbery does not fall within Section 924(c)’s elements clause.  Thus in McCoy, the panel simply reaffirmed this holding.  Similarly, the pre-Davis decision United States v. Hill, 890 F.3d 51 (2d Cir. 2018), held that that substantive Hobbs Act robbery qualifies under 924(c)’s elements clause, and the McCoy panel again reaffirmed this holding, expending little energy on the subject. 

  1. Attempt

The main question here was whether attempted Hobbs Act robbery qualifies as a predicate offense.  Other circuits have split, though the majority have found it to be a crime of violence.  Compare United States v. Walker, 990 F.3d 316 (3d Cir. 2021) (finding attempted Hobbs Act robbery to be a crime of violence under Section 924(c)); United States v. Dominguez, 954 F.3d 1251 (9th Cir. 2020) (same); United States v. Ingram, 947 F.3d 1021 (7th Cir. 2020) (same); United States v. St. Hubert, 909 F.3d 335 (11th Cir. 2018) (same); with United States v. Taylor, 979 F.3d 203 (4th Cir. 2020) (holding to the contrary). 

The McCoy court acknowledged the minority view espoused by the Fourth Circuit, but rejected it for two reasons.  First, Section 924(c) expressly defines a crime of violence as a crime involving the “attempted use … of physical force.”  Thus the court reasoned that, “for substantive crimes of violence that include the use of physical force as an element, defendants also commit crimes of violence when commission of those crimes is attempted.”  (For a straightforward textual analysis of this issue, see Walker, 990 F.3d at 329-30.)

Second, the panel considered but rejected the defendants’ minimum conduct argument.  The defendants had asserted that attempted Hobbs Act robbery could be committed by an “attempt to threaten force,” which would not require an attempted use of force.  The panel accepted that such a prosecution was “theoretically possible,” and that such a case would not require the force contemplated by Section 924(c)’s elements clause.  But the panel emphasized that the defendants had not pointed to particular cases where attempted Hobbs Act robbery had been charged on such facts.  Thus, the panel held, the defendants had not shown a “realistic possibility” that such a conviction might exist. 

Yet district courts within the Second Circuit had previously pointed to particular cases that they believed demonstrated that attempted Hobbs Act robbery could be committed without attempted use of physical force.  See, e.g., United States v. Culbert, 453 F. Supp. 3d 595, 598 (E.D.N.Y. 2020); Lofton v. United States, 2020 WL 362348, at *8 (W.D.N.Y. Jan. 22, 2020).  And other advocates have mined other cases for fact patterns that may demonstrate a lack of the requisite force.  See Matt Larsen, Federal Defenders of New York Blog, Another Court Rules Attempted Hobbs Act Robbery is NOT a “Crime of Violence” (Jan. 23, 2020) (citing to United States v. Pica, E.D.N.Y. 08-559, where the defendant committed attempted Hobbs Act robbery by “bluffing” about intent to use force).  McCoy was initially argued in 2019, and, during its lengthy pendency, numerous 28(j) letters were filed, some citing to these authorities.  Nonetheless, the panel was apparently unmoved, and found that the defendants failed to highlight any relevant minimum conduct cases.  Thus the panel did not grapple with the minimum conduct these real-world—even if comparatively rare—cases presented. 

  1. Aiding and Abetting

The next novel question confronted by the panel was whether aiding and abetting Hobbs Act robbery qualified as a predicate crime.  The panel dispensed with the issue quickly, finding that “[t]he crime charged in a prosecution for aiding and abetting a Hobbs Act robbery is . . . Hobbs Act robbery,” because “[t]here is no culpable aiding and abetting without an underlying crime committed by some other person; and aiding and abetting itself is not the predicate crime.”  Thus despite the fact that Hobbs Act robbery is “committed by someone other than the defendant,” the panel nonetheless found that the aider and abettor “used” force all the same.  Here, however, there does not appear to be much discord, as “all federal circuit courts that have addressed the issue have held that aiding and abetting Hobbs Act robbery remains a ‘crime of violence.’”  United States v. Wilkerson, 828 F. App’x 904, 905 (4th Cir. 2020).

First Step Act

The panel also addressed the narrow question of whether a defendant, whose sentence was imposed before the First Step Act was enacted, but whose conviction has not yet been heard on appeal, may benefit from the protections of the First Step Act.  Generally, the First Step Act provides relief going forward, and thus applies to defendants who were not sentenced by the time of the Act’s passage.  But the panel harbored enough doubt on the timing question to remand—noting that the defendants’ convictions under Section 924(c) for conspiracy to commit Hobbs Act Robbery were reversed, and, as a result, resentencing was already required.  The First Step Act eliminated the imposition of consecutive twenty-five year sentences for each second and successive Section 924(c) conviction in most instances, meaning that its application to these defendants would significantly reduce their enormous, more than 100-year-long sentences. 

Analysis

The continued stream of vexing litigation on the categorical approach continues to be a major source of concern—for the defendants themselves facing mandatory minimums based on these decisions, for the courts’ crowded dockets, and for advocates.  Any given case may ultimately decide whether a particular statute qualifies as a predicate offense—meaning that one case will play a major role in the sentencing of untold numbers of defendants.  This reality places great pressure on individual litigators.  Here, if the minimum conduct cases examined by the district courts and other attorneys had been brought to the panel’s attention earlier in the case, the result may well have been different.  In addition, the panel’s focus on whether cases with unusual fact patterns have been brought seems to go somewhat outside of the categorical approach, which traditionally has focused on the question of whether a particular statute could be used to prosecute non-violent conduct rather than whether it actually has been used in this manner.  In addition, information about whether a statute has been used in a particular way is imperfect; if the cases did not result in a published decision, it is nearly impossible for an attorney to conduct the research needed to answer the question.

More broadly, the extreme length of the defendants’ sentences—135 and 155 years—demonstrates concretely the need for significant sentencing reform.  While the First Step Act improved the landscape somewhat, it fell short of eliminating all excessive mandatory minimums and sentencing ranges that lead to these colossal punishments.  And, here, it remains to be seen whether these particular defendants will get the benefit of the First Step Act at all.  Thus this case serves as a clear reminder of the remaining reform that is urgently needed. 

By Abigail Marion and Harry Sandick