Section 924(c)– Attempted Hobbs Act robbery does not constitute a “crime of violence” under 18 U.S.C. 924(c) because the elements do not invariably require the use, attempted use, or threatened use of physical force.
Justine Eugene Taylor brought a successive federal habeas petition after he was convicted under 924(c) of using a firearm in furtherance of “crimes of violence,” namely conspiracy to commit Hobbs Act robbery and attempted Hobbs Act robbery. Based on precedent, the Government conceded that conspiracy to commit Hobbs Act robbery is not a “crime of violence” under 924(c), but contended that attempted Hobbs Act robbery is.
On appeal, the Fourth Circuit disagreed, holding that, in light of the Supreme Court striking down the “residual clause” to 924(c), attempts Hobbs Act robbery would have to constitute a “crime of violence” under the “force clause.” Employing the categorical approach and focusing on the elements of the offense (rather than the conduct), the Court concluded that the elements of attempted Hobbs Act robbery did not necessarily and inevitably require force in order to secure a conviction. All the elements require is 1) culpable intent and 2) a substantial step, and that substantial step does not have to be violent or forceful. For example, would-be offenders could conspire to rob a bank, surveil the banks, buy and prepare weapons, and drive to the bank, without engaging in any actual force or threat of force.
The Court criticized other circuits, including the 9th, 7th, and 11th, that categorically held that “when a substantive offense would be a violent felony under 924(e) and similar statutes, an attempt to commit that offense also is a violent felony.” However, the Court explained, an attempt to commit a crime of violence does not necessarily constitute an attempt to use physical force.
Appeal from the Eastern District of Virginia
Opinion by Motz, joined by King and Floyd.
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