The main event was the split decision on whether attempted Hobbs Act Robbery is a crime of violence for purposes of 18 U.S.C. § 924(c)(3)(A). The majority held it was: "Because completed Hobbs Act robbery is a crime of violence under § 924, attempted Hobbs Act robbery is also a crime of violence. In so holding, we agree with the Seventh and Eleventh Circuits that, when a substantive offense would be a crime of violence under 18 U.S.C. § 924(c)(3)(A), an attempt to commit that offense is also a crime of violence."
Judge Nguyen filed a compelling dissent on this issue:
Attempted Hobbs Act robbery is not a crime of violence because a substantial step toward completing a Hobbs Act robbery need not involve the use, attempted use, or threatened use of physical force. Compare three examples:
1. A man stops an armored vehicle and shoots and injures the driver. But the driver escapes with the money.
2. A man intercepts an armored vehicle by standing in front of it with his gun pointed at the driver. He pulls the trigger, intending to strike and injure the driver, but the gun jams. The driver escapes with the money.
3. A man plans a robbery, buys the necessary gear, and drives toward the target, but returns home after seeing police in the vicinity. Each scenario describes an attempted Hobbs Act robbery.
In (1), the man uses physical force. In (2), the man attempts to use physical force. In (3), the man does not use, attempt to use, or threaten to use physical force, even though he intended to commit a robbery and took a substantial step toward committing it. This last scenario—a possible “least serious form” of attempted Hobbs Act robbery—shows that an attempted Hobbs Act robbery does not qualify as a crime of violence under the elements clause.
A PFR will be forthcoming. Stay tuned.
