Attempted Hobbs Act Robbery Not “Crime of Violence”

US v. Taylor: In 2003, Taylor was involved in an unsuccessful robbery of a drug dealer. For his troubles, Taylor was charged with (among other things) using a firearm in connection with a “crime of violence,” namely attempted Hobbs Act robbery and conspiracy to commit Hobbs Act Robbery. He pleaded guilty to the firearm charger and the conspiracy charge and was sentenced to 360 months in prison. In the wake of the Supreme Court’s 2015 decision in Johnson, Taylor got permission to file a second 2255 motion, arguing that his firearm conviction had to be reversed because the residual clause of the “crime of violence” definition was unconstitutional and his Hobbs Act offenses did not otherwise qualify. While the Fourth Circuit had already determined that the residual clause was unconstitutional and conspiracy to commit Hobbs Act robbery was no longer a crime of violence, the district court denied Taylor’s motion, holding that attempted Hobbs Act robbery still was.

The Fourth Circuit reversed the district court’s decision and concluded that attempted Hobbs Act robbery was not a crime of violence. Applying the categorical approach, the court explained that Hobbs Act robbery itself required, at the least, the threatened use of physical force and was still a crime of violence. Attempt, however, “does not invariably require the use, attempted use, or threatened use of physical force,” with the court noting that the “substantial step need not be violent.” The court recognized that other Circuit have come to the opposite conclusion, because they “adopt the same flawed premise that the Government recites here: that an attempt to commit a ‘crime of violence’ necessarily constitutes an attempt to use physical force.” “This,” the court concludes, “is simply not so.” In particular, the court distinguished between attempt offenses that require only the attempted threat of force, versus those that require attempted force itself.

Congrats to the Defender office in the Eastern District of Virginia on the win!