Supreme Court: Attempted Hobbs Act Robbery Not a Crime of Violence under 924(c)(3)(A): Taylor
All, the United States Supreme Court has decided the Taylor case, a case of importance to many. In Taylor, the Supreme Court held that Attempted Hobbs Act Robbery Crimes are not Crimes of Violence under 924(c)(3)(A), otherwise known as the “elements clause.” This is important because many incarcerated persons were waiting on the outcome of this case before filing for relief on their 924(c) cases.
The Syllabus of the Taylor Case
SUPREME COURT OF THE UNITED STATES
UNITED STATES v. TAYLOR
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 20–1459. Argued December 7, 2021—Decided June 21, 2022
For his participation in an unsuccessful robbery during which his accomplice shot a man, respondent Justin Taylor faced charges of violating the Hobbs Act, 18 U. S. C. §1951(a), and of committing a “crime of violence” under §924(c). The Hobbs Act makes it a federal crime to commit, attempt to commit, or conspire to commit a robbery with an inter- state component. §1951(a). Section 924(c) authorizes enhanced punishments for those who use a firearm in connection with a “crime of violence” as defined in either §924(c)(3)(A)—known as the elements clause—or §924(c)(3)(B)—known as the residual clause. Before the District Court, the government argued that Taylor’s Hobbs Act offense qualified as a “crime of violence” under §924(c). Taylor ultimately pleaded guilty to one count each of violating the Hobbs Act and §924(c). The District Court sentenced Taylor to 30 years in federal prison—a decade more than the maximum sentence for his Hobbs Act conviction alone. Taylor later filed a federal habeas petition focused on his §924(c) conviction, which was predicated on his admission that he had committed both conspiracy to commit Hobbs Act robbery and at- tempted Hobbs Act robbery. Taylor argued neither Hobbs Act offense qualified as a “crime of violence” for purposes of §924(c) after United States v. Davis, 588 U. S. ___. In Davis, this Court held that §924(c)(3)(B)’s residual clause was unconstitutionally vague. Id., at ___–___. In his habeas proceeding, Taylor asked the court to apply Davis retroactively and vacate his §924(c) conviction and sentence. The government maintained that Taylor’s §924(c) conviction and sentence remained sound because his crime of attempted Hobbs Act robbery qualifies as a crime of violence under the elements clause. The Fourth Circuit held that attempted Hobbs Act robbery does not qualify as a crime of violence under §924(c)(3)(A). The Fourth Circuit vacated Taylor’s §924(c) conviction and remanded the case for resentencing. In reaching its judgment, the Fourth Circuit noted that other courts have held that attempted Hobbs Act robbery does qualify as a crime of violence under the elements clause.
Held: Attempted Hobbs Act robbery does not qualify as a “crime of violence” under §924(c)(3)(A) because no element of the offense requires proof that the defendant used, attempted to use, or threatened to use force. Pp. 3–13.
(a) The Court applies a “categorical approach” to determine whether a federal felony may serve as a predicate for a conviction and sentence under the elements clause, which poses the question whether the fed- eral felony in question “has as an element the use, attempted use, or threatened use of physical force.” §924(c)(3)(A) (emphasis added). The relevant inquiry is not how any particular defendant may commit the crime but whether the federal felony at issue always requires the government to prove—beyond a reasonable doubt, as an element of its case—the use, attempted use, or threatened use of force. This Court has long understood similarly worded statutes to demand similarly categorical inquiries. See, e.g., Borden v. United States, 593 U. S. ___, ___.
An attempted Hobbs Act robbery does not satisfy the elements clause. To secure a conviction for attempted Hobbs Act robbery, the government must prove that the defendant intended to complete the offense and that the defendant completed a “substantial step” toward that end. See, e.g., United States v. Resendiz-Ponce, 549 U. S. 102, 107. An intention is just that, no more. And whatever a substantial step requires, it does not require the government to prove that the defend- ant used, attempted to use, or even threatened to use force against another person or his property—even if the facts would allow the government to do so in many cases. As the Model Penal Code explains with respect to the Hobbs Act’s common-law robbery analogue, “there will be cases, appropriately reached by a charge of attempted robbery, where the actor does not actually harm anyone or even threaten harm.” ALI, Model Penal Code §222.1, p. 114. But no element of at- tempted Hobbs Act robbery requires proof that the defendant used, attempted to use, or threatened to use force. Pp. 3–6.
(b) The government’s countervailing arguments fail. Pp. 6–13.
(1) The government first argues that the elements clause encompasses not only any offense that qualifies as a “crime of violence” but also any attempt to commit such a crime. But the elements clause only asks whether the defendant did commit a crime of violence as defined by the statute. Pp. 6–7.
(2) The government next argues that the “substantial step” element of attempted Hobbs Act robbery categorically requires it to prove that a defendant used, attempted to use, or threatened to use physical force. But while many who commit the crime of attempted Hobbs Act robbery do use, attempt to use, or threaten to use force, the government’s problem is that no element of attempted Hobbs Act robbery re- quires the government to prove such facts beyond a reasonable doubt. The government maintains that anyone who takes a substantial step toward completing Hobbs Act robbery always or categorically poses a “threatened use” of force because the word “threat” can be used to speak of an abstract risk. The government submits that the elements clause uses the term to require only an objective, if uncommunicated, threat to community peace and order. But when Congress uses the word “threat” in such an abstract and predictive (rather than communicative) sense, it usually makes its point plain. The textual clues in the statute point in the opposite direction of the government’s reading. Moreover, the government’s view of the elements clause would have it effectively replicate the work formerly performed by the residual clause. Under usual rules of statutory interpretation, the Court does not lightly assume Congress adopts two separate clauses in the same law to perform the same work. See, e.g., Mackey v. Lanier Collection Agency & Service, Inc., 486 U. S. 825, 839, n. 14. Pp. 7–10.
(3) The government’s final theory accepts that a conviction under the elements clause requires a communicated threat of force and contends that most attempted Hobbs Act robbery prosecutions involve exactly that. But whatever this argument proves, the theory cannot be squared with the statute’s terms. Congress in the elements clause did not mandate an empirical inquiry into how crimes are usually commit- ted, let alone impose a burden on the defendant to present proof about the government’s own prosecutorial habits. Attempted Hobbs Act robbery does not categorically require proof of the elements § 924(c)(3)(A) demands. That ends the inquiry, and nothing in Gonzales v. Duenas- Alvarez, 549 U. S. 183, suggests otherwise. Pp. 10–13.
979 F. 3d 203, affirmed.
GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and BREYER, SOTOMAYOR, KAGAN, KAVANAUGH, and BARRETT, JJ., joined. THOMAS, J., and ALITO, J., filed dissenting opinions.
A Closer Look: Who is Impacted by the Taylor case and What Should You Do if Taylor Affects You?
Earlier this week the Supreme Court issued a significant decision in United States v. Taylor holding that attempted Hobbs Act robbery categorically fails to qualify as a crime of violence for 18 U.S.C. 924(c) purposes. This decision not only resolved a major circuit split on the issue, but also has far-reaching implications for other inchoate crimes that are used as a predicate “crimes of violence.” I want to take this opportunity to discuss who may be impacted by the Taylor decision, and what options those individuals may have to seek relief.
Who Does Taylor Impact?
The straightforward answer is individuals who were charged with a 924(c) predicated on attempted Hobbs Act robbery. Remember, the Court’s opinion does not change the validity of the attempted offense–only the 924(c) conviction. If you were not charged with a 924(c), then the decision does not affect the attempted robbery conviction.
The Court reasoned that attempted Hobbs Act robbery is not a crime of violence because the government is not required to prove beyond a reasonable doubt the element of use, attempted use, or threatened use of physical force. Instead, all the government must prove to achieve a conviction for attempted Hobbs Act robbery is (1) the defendant intended to commit Hobbs Act robbery, and (2) he completed a substantial step. This, according to the Supreme Court, is insufficient to categorically qualify as a crime of violence under 924(c)(3)(A).
But what about other attempt crimes? Bank robbery under 18 U.S.C. 2113 includes language similar to Hobbs Act robbery regarding attempt. And while not every circuit agrees, several have analyzed attempted bank robbery under the Model Penal Code just as the Supreme Court did in Taylor–an intent to commit bank robbery and a substantial step. Logically, then, the same reasoning that makes attempted Hobbs Act robbery not a crime of violence should extend to attempted bank robbery. Just about every circuit has held attempted bank robbery is a crime of violence under 924(c). But the same was true for attempted Hobbs Act robbery until the Fourth Circuit and Supreme Court decisions in Taylor.
Taylor also raises a question about those convicted of aiding and abetting under 18 U.S.C. 2. In Rosemond v. United States, 134 S.Ct. 1240 (2014), the Court held that a defendant may be convicted of aiding and abetting without proof that he participated in every element of the offense. Aiding and abetting requires an intent and undertaking a requisite act–similar to the elements of attempt under the Model Penal Code. If the government does not have to prove the use of violence beyond a reasonable doubt to achieve a conviction for aiding and abetting, then an argument could be made that the logic of Taylor equally applies to 18 U.S.C. 2.
Of course, Taylor was only recently decided, so whether the holding extends to other offenses is something that will have to be litigated.
How Can An Individual Seek Relief Based on Taylor?
Seeking relief based on Taylor is going to be very case-specific and dependent on the procedural posture of your case. If you are in pretrial, pre-sentencing, direct appeal, or on your first timely 2255 motion, then seeking relief should be a relatively straightforward application of Taylor.
However, many people are either well outside the statute of limitations date for filing a 2255 motion, have already filed a 2255 motion, or have had a 2255 motion adversely decided based on this very issue. Remember, most circuits had held that attempted Hobbs Act robbery is a crime of violence prior to Taylor. So what can one do in this situation?
For starters, once a 2255 motion is decided, the district court does not have jurisdiction to alter or amend its judgment except under Fed. R. Civ. P. 59 and 60. But those Rules generally do not allow for a change in law. In addition, I do not think Taylor would be considered a “new rule of constitutional law” that would allow individuals to seek second or successive 2255 relief.
However, Taylor is a statutory-interpretation case that overturns precedent in many circuits. This means that some individuals may be able to claim “actual innocence” of the 924(c) conviction and bring a 2241 petition. There is a catch, though. A writ of habeas corpus pursuant to 28 U.S.C. 2241 is full of nuances that vary from circuit to circuit. And some circuits, such as the Eleventh, have essentially abolished the ability to bring a 2241 petition challenging a conviction. But other circuits are more hospitable to 2241 claims. For many people, how you seek relief may very well come down to where you are incarcerated since a 2241 is filed in the district of your incarceration.
If none of the above are available to you, a motion pursuant to 18 U.S.C. 3582(c)(1)(A) may be a saving grace. But, again, this depends on the circuit your case is out of. Some circuits have held that sentencing disparity caused by a change in law can be grounds for a sentence reduction under 3582(c)(1)(A). Others have explicitly held otherwise.
Eighth Circuit Reverses 2255 Denial Based on Taylor, Davis: Jones
In 2005, Jones pled guilty to conspiracy to commit Hobbs robbery (Count One) and brandishing a firearm during a crime of violence (Count Four). Jones’ 924(c) charge was predicated on three separate counts: the Hobbs Act conspiracy, aiding and abetting attempted Hobbs Act robbery, and being a felon in possession of a firearm.
Jones admitted in a factual basis in support of his guilty plea that he conspired to rob employees of a clothing store, took the employees hostage in their car, driving the employees to the store to attempt the robbery, and using a firearm in the process. The district court initially sentenced Jones to a term of life imprisonment under 18 U.S.C. 3559(c). However, on direct appeal the government conceded that Jones had not sustained the two necessary prior convictions to justify a life sentence under statute. Jones was resentenced by the district court to 216 months for the conspiracy and 84 consecutive months for the 924(c), for a total sentence of 300 months.
Following the Supreme Court’s decision in United States v. Davis, Jones moved to vacate his 924(c) conviction pursuant to 28 U.S.C. 2255. Jones argued that conspiracy to commit Hobbs Act robbery only qualified as a crime of violence under the now-void residual clause of 924(c)(3)(B). However, the district court concluded that conspiracy to commit Hobbs Act robbery remained a crime of violence for 924(c) purposes and denied Jones 2255 relief. Jones appealed to the Eighth Circuit Court of Appeals.
The Eighth Circuit's Discussion: no predicate crime
The Eighth Circuit began its analysis of Jones’ claim by determining whether the argument had been procedurally defaulted by not raising it at sentencing or on direct appeal. Like most other appellate courts, the Eighth Circuit concluded that Jones could establish cause for not raising the issue prior to Davis due to the law in effect at the time of his appeal.
Turning to prejudice, the court reviewed whether Jones’ 924(c) conviction could be sustained based on any of the three predicate “crimes of violence” listed in the original indictment. The Eighth Circuit held that conspiracy to commit Hobbs Act robbery does not qualify because conspiracy does not have as an element “the use, attempted use, or threatened use of physical force against the person or property of another.” (citing Davis).
The court next addressed Jones’ aiding and abetting attempted Hobbs Act robbery. With the Supreme Court’s recent decision in United States v. Taylor, the Eighth Circuit found that aiding and abetting attempted Hobbs Act robbery cannot qualify as a crime of violence because no element of the attempted robbery offense requires the use, attempted use, or threatened use of force. As to the third predicate, felon in possession, the government conceded that charge was not a crime of violence under precedent predating Davis.
Although none of the three predicates listed as crimes of violence could support Jones’ 924(c) conviction, the government still argued that Jones brandished a firearm during a carjacking and thus during a crime of violence. But the Eighth Circuit correctly noted that the government did not charge Jones with carjacking, and the government could not use an uncharged offense to support an otherwise infirm conviction.
With no valid predicate offense to support the 924(c) conviction, the Eighth Circuit held that Jones established that he likely would not have pled guilty to Count Four, and it would be a miscarriage of justice to not vacate his consecutive 84-month sentence.
Finally, the Eighth Circuit joined the First, Third, Fifth, Sixth, Tenth, and Eleventh Circuits in explicitly holding that Davis is a substantive rule of law that applies retroactively to cases on collateral review. Applying Davis to Jones’ case, Jones’ conviction under 924(c) was unconstitutional. The Eighth Circuit reversed the district court’s denial of Jones’ 2255 motion and remanded with directions to vacate the conviction and Count Four.
Seventh Circuit reverses Denial of 2255 motion based on Taylor: Francies
Over twenty years ago, Francies, Streets and Meachum were convicted of multiple crimes including two counts of using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. 924(c). One of the two 924(c) convictions was predicated on the crime of attempts Hobbs Act robbery under 18 U.S.C. 1951 and conspiracy to violate civil rights in violation of 18 U.S.C. 241. The second 924(c) was premised only on attempted Hobbs act robbery.
The three defendants’ sentences were affirmed on direct appeal and each defendant unsuccessfully sought relief under 28 U.S.C. 2255. Many years later, the Seventh Circuit granted the defendants authorization to file a second or successive 2255 motion based on Johnson v. United States, 135 S.Ct. 2551 (2015). By the time the district court addressed the merits of the second or successive 2255 motions, the Supreme Court had issued its decision in United States v. Davis, 139 S.Ct. 2319 (2019).
The district court conceded that conspiracy to violate civil rights could not serve as a proper 924(c) predicate following Davis and Johnson. However, the court ultimately denied the defendants 2255 relief on the basis that attempted Hobbs Act robbery remained a crime of violence under the elements clause of 924(c)(3)(A).
The defendants appealed and the Seventh Circuit granted a certificate of appealability. While the appeals were pending, the Seventh Circuit held that attempted Hobbs Act robbery is a crime of violence for 924(c) purposes in United States v. Ingram, 947 F.3d 1021 (7th Cir. 2020). Shortly after, the defendants moved to expand the certificate of appealability in light of the Fourth Circuit’s decision in United States v. Taylor, 979 F.3d 203 (4th Cir. 2020) which conflicted with the court’s decision in Ingram.
Following supplemental briefing on the issue, the Supreme Court handed down its decision in Taylor which resolved the circuit split on whether attempted Hobbs Act robbery qualifies as a crime of violence under 924(c)(3)(A). In light of Taylor, the government conceded that the defendants’ 924(c) convictions could not stand.
Finding that each defendants’ 924(c) conviction had no valid predicate crime of violence necessary to sustain the conviction, the Seventh Circuit reversed the district court’s denial of their 2255 motions and remanded the cases to the district court for re-sentencing without the 924(c) counts.
Jeremy's Note on The Application of Taylor: The First of Many Cases
I expect this is the first of many circuit court opinions we will see in the wake of Taylor. This case was a rather straightforward application of Taylor-aiding and abetting an attempted Hobbs Act robbery does not qualify as a crime of violence post-Davis. Application of Taylor in this case was also simplified by the fact that this was an appeal from the denial of a 2255 motion.
I expect we will start seeing much more complex Taylor claims in the near future that are both substantive and procedural rulings. While the offense at issue in Taylor was attempted Hobbs Act robbery, the Court’s reasoning can readily be applied to other attempt “crimes of violence” - such as attempted bank robbery, attempted carjacking, attempted witness intimidation, etc. The underlying theory behind the court’s rationale is that an attempt only requires the government prove (1) intent to commit the substantive offense, and (2) a substantial step. No showing of the use, attempted use, or threatened use of violence is necessary to obtain a conviction.
But what about cases those cases that Taylor may affect that have already been decided and affirmed on appeal? What about cases where a second or successive 2255 based on Davis was denied-a decision that is unappealable? What if the defendant never filed a 2255 motion because he or she believed the law of their circuit precluded the argument Taylor now can advance?
Unfortunately, there is no simple answer to any of these questions. Whether Taylor affects your case and how it might be raised procedurally are highly fact specific. It will depend on when you were convicted and sentenced, the state of the law in your circuit, whether you have raised a similar claim before, and - in the cases where a 2241 petition is an option - where you are incarcerated.
United States v. Todd, No. 18-4161 (4th Cir. 2022) - Todd was convicted of conspiracy to commit Hobbs Act robbery, attempted Hobbs Act robbery, brandishing a firearm in furtherance of a crime of violence and various other crimes. On direct appeal, Todd raised several challenges including the validity of his 924(c) conviction predicated on the inchoate robberies. After Taylor, the Fourth Circuit concluded that Todd’s 924(c) conviction must be vacated and remanded for resentencing.
Morgan v. United States, No. 3:06-cr-176-1 (W.D.N.C. Aug. 10, 2022) - following the decision in Taylor, the government conceded that Morgan’s 924(c) conviction predicated on attempted Hobbs Act robbery is invalid. Morgan’s conviction and sentence on the 924(c) count was vacated.
Madison v. United States, No. 19-14132 (11th Cir. 2022) - Madison challenged his 924(c) conviction based on attempted Hobbs Act robbery. The case was stayed pending the Supreme Court’s decision in Taylor. Following Taylor, the parties agreed that the decision resolved the appeal favorable for Madison. Moreover, the government expressly waived any procedural default defense. Madison’s 60-month conviction and sentence was vacated.
Taylor, Substantive Law and Procedural Default
There are Questions about Whether the Taylor case can be used by inmates who were already sentenced and did not allege that the 924c was illegal at the time of their original conviction. The answer may be present in Seabrooks and Earle below.
Seabrooks vs. United States, No. 20-13459 (11th Cir. 2022)
Felon in possession conviction vacated in the Eleventh Circuit, a reversal of the district court's denial of Seabrooks' 2255 motion.
Seabrooks History Regarding Felon in Possession
In 2014, Seabrooks was charged with being a felon in possession of a firearm, in violation of 18 U.S.C. 922(g), and possession of a stolen firearm, in violation of 18 U.S.C. 922(j). Although Seabrooks was not charged with aiding and abetting in the indictment, the trial court instructed the jury that it could find him guilty on either charge under an aiding and abetting theory. Seabrooks objected. The jury convicted Seabrooks on both counts. Yet, the jury did not specify whether it found Seabrooks guilty on Count 1 because he actually possessed the firearm or because he aided and abetted his co-defendant’s possession of a firearm.
Seabrooks appealed his conviction and 188-month sentence. In a published opinion, the Eleventh Circuit affirmed the district court aiding and abetting instruction. Relying on Rosemond v. United States, 572 U.S. 65 (2014), Accordingly, Seabrooks argued the trial court erred in giving the aiding and abetting instruction to the jury because the government presented no evidence that Seabrooks knew his co-defendant was a convicted felon. The Eleventh Circuit found no plain error because neither it nor the Supreme Court had yet to address the question of whether the government must prove the defendant knew the principal was a convicted felon to sustain an aiding and abetting conviction.
Following his direct appeal, Seabrooks filed a timely 28 U.S.C. 2255 motion which again raised the government’s failure to demonstrate that he knew his co-defendant was a convicted felon. While his motion was pending, the Supreme Court issued its decision in Rehaif v. United States, 139 S.Ct. 2191 (2019) holding that the government must prove that the defendant “knew he belonged to the relevant category of persons barred from possessing a firearm” in a 922(g) prosecution.
Seabrooks Appeal of 2255
Nonetheless, the district court denied Seabrooks’ 2255 motion on the basis that (1) the claim was procedurally barred and (2) Rehaif was not a new rule of constitutional law that applied retroactively on collateral review. Seabrooks appealed the denial of his 2255 motion and the Eleventh Circuit granted a certificate of appealability to determine whether Rehaif applies retroactively to initial 2255 motions. See our previous case brief on the first time Seabrooks went to court.
Felon In Possession Conviction in Eleventh Circuit
On appeal, the government conceded that the district court erroneously applied the standard for a second or successive 2255 motion by asserting Rehaif was not a new rule of constitutional law. For a first 2255 motion, a Supreme Court decision applies retroactively if the decision “changes the substantive reach of a statute by altering the range of conduct or the class of persons that the statute punishes[.]” Rehaif did just that to 922(g). Because Rehaif narrowed the scope of 922(g), the Eleventh Circuit held it announced a new rule of substantive law that applies retroactively to an initial 2255 motion.
The court then turned to whether Seabrooks’ Rehaif claim is procedurally barred or defaulted. The Eleventh Circuit concluded that Seabrooks’ claim was not procedurally barred because Rehaif caused an intervening change in the law. As to the procedural default, the court found the government waived this defense by failing to raise it before the district court.
The Eleventh Circuit reversed the district court’s denial of Seabrooks’ 2255 motion, vacated Seabrooks felon in possession conviction, and remanded to the district court for resentencing.
United States vs. Werle, No. 20-36005 (9th Cir. 2022)
The district court summarily denied Werle’s motion by applying plain-error analysis. It held that Werle was not entitled to relief. This was because “a jury would conclude that, Mr. Werle knew, or should have known, he had been convicted of a crime punishable by more than a year.” However, the district court did issue a certificate of appealability. Werle timely appealed.
Appeal in Ninth Circuit Regarding Procedural Default
On appeal, it was uncontested that the district court erred in applying a plain-error analysis to a 2255 motion. The court noted that when a defendant raises an error for the first time on collateral review, the defendant must generally show cause for not raising the error sooner. Also, defendant must show prejudice from the error before the court can consider the merits. This is procedural default.
Still, the government urged the Ninth Circuit to affirm the denial of Werle’s 2255 motion because he could not establish either cause or prejudice to overcome his procedural default. Werle argued that cause could be established by futility because in 2014, every court that had addressed the same argument had rejected it. The Ninth Circuit agreed with Werle.
Cause in Plain Error Analysis
At the time Werle pled guilty, at least six circuits had explicitly rejected the same argument. The court found under these circumstances, there was no reasonable basis for Werle to have argued that the government was required to prove that he knew of his status as a felon at the time he possessed the firearm. Futility in raising a claim may excuse a procedural default if the claim has been unacceptable to a near-unanimous body of lower courts for a significant period of time. Accordingly, the Ninth Circuit found Werle had established cause to overcome procedural default. The court next turned to the prejudice prong.
Prejudice in Plain Error Analysis
In the context of Werle’s case, to establish prejudice, he must demonstrate a reasonable probability that he would have proceeded to trial had he been properly informed of the required elements of the offense. But given the district court’s summary denial of Werle’s 2255 motion, the court found the record insufficient to determine whether prejudice had been demonstrated.
Accordingly, the court vacated the district court’s denial of Werle’s 2255 motion and remanded for an evidentiary hearing. In doing so, the Ninth Circuit emphasized “that the district court’s task at this stage is to determine whether there is a reasonable probability that this defendant would have proceeded to trial. If so, he was prejudiced, even if the Government or the court believes that he likely would have been convicted at trial or that the decision to go to trial ‘may have been foolish.’”
The district court’s judgment was vacated and the case remanded for further proceeding.
JEREMY’S NOTE: These Rehaif decisions are important for their procedural holdings. I believe these will likely be implicated in future litigation involving the Supreme Court’s recent decision in Taylor v. United States, No. 20-1459 (2022). As the Eleventh and Ninth Circuits note, a change in substantive law and the fact that filing such a claim at the time would have been futile may excuse a procedural default. The majority of courts to address attempted Hobbs Act robbery prior to Taylor have held it is a crime of violence for 924(c) purposes. The same is true for attempted bank robbery and other attempt crimes.
Alvarado-Linares v. United States, No. 19-14994, 2022 WL 3367950 (11th Cir. Aug. 16, 2022) (Attempted VICAR murder was still a crime of violence in a case of first impression) EDITOR’S NOTE: This is still an open question in every other circuit court for now
United States v. Young, No. 20-6280, 2022 WL 3274167 (6th Cir. Aug. 11, 2022) (Vacating and remanding 924(c) convictions predicated on attempted Hobbs Act Robbery)
Wallace v. United States, 43 F.4th 595 (6th Cir. 2022) (Reversing denial of 2255 motion where 924(j) conviction was predicated on conspiracy to commit Hobbs Act Robbery and attempted HAR)
Madison v. United States, No. 19-14132, 2022 WL 3042848 (11th Cir. Aug. 2, 2022) (Government expressly waived procedural default defense to Taylor claim in 2255 appeal)
In 1996, Savage pled guilty to possession and distribution of cocaine; conspiracy to rob United States of property; attempted robbery of United States property, in violation of 18 U.S.C. 2112; and use of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. 924(c). The 924(c) conviction was predicated on both the conspiracy and attempted robbery offenses.
In 2020, Savage filed a 28 U.S.C. 2255 motion arguing his 924(c) conviction was invalid following the Supreme Court’s decision in United States v. Davis, 139 S.Ct. 2319 (2019) (holding the residual clause of 924(c)(3)(B) unconstitutionally vague). Without a response from the government, the district court dismissed Savage’s motion and granted a certificate of appealability.
On appeal before the Sixth Circuit, Savage argued that his 924(c) conviction was invalid because it was based on attempted robbery. After briefing, the appeal was held in abeyance pending the Supreme Court’s decision in United States v. Taylor, 142 S.Ct. 2015 (2022). Taylor held that attempted Hobbs Act robbery under 18 U.S.C. 1951 is not a crime of violence under 924(c)(3)(A) because the government did not need to prove that the defendant used, attempted to use, or threatened to use force against another person or his property to obtain a conviction.
Following the decision in Taylor, the government conceded that Savage’s attempted robbery conviction cannot support his 924(c) conviction. Nonetheless, the government argued that Savage’s 2255 motion should be dismissed on the alternative ground that the claim was procedurally defaulted.
Because the district court originally dismissed Savage’s 2255 motion without a response from the government, the Sixth Circuit vacated the dismissal and remanded the case for the district court to resolve the issue in the first instance.
United States v. Collymore, No. 19-596 (2d Cir. 2023)
In 2018, Collymore pled guilty to (1) conspiracy to commit Hobbs Act robbery, (2) attempted Hobbs Act robbery; (3) using, brandishing, and discharging a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. 924(c); and (4) murdering a person with a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. 924(j). Collymore was sentenced to 525 months imprisonment. The Second Circuit summarily affirmed the sentence on direct appeal. But in 2022, the Supreme Court vacated the Second Circuit’s judgment and remanded the case for further consideration in light of United States v. Taylor, 142 S.Ct. 2015 (2022).
One of the claims for reconsideration was that the two firearm counts, 924(c) and 924(j), must be vacated because they were based on a conviction for attempted Hobbs Act robbery, which is no longer categorically a crime of violence after Taylor. Application of Taylor to the 924(c) conviction was straightforward. However, the Second Circuit had not previously considered Taylor’s implication on a 924(j) conviction.
An element of an offense under 924(j)(1) is that the defendant was “in the course of a violation of [section 924(c)].” But because the 924(c) conviction was invalid following Taylor, the Second Circuit held that the 924(j) conviction was also invalid.
Accordingly, the Second Circuit vacated Collymore’s convictions on Counts Three and Four and remanded to the district court for resentencing.
Frequently Asked Questions
In the weeks that have followed the court's issuance of an order in Taylor, we have answered hundreds of questions. Here are some frequently asked questions about the Taylor decision:
Q: I have a Hobbs Act Robbery case, not an attempt. Can I receive relief under Taylor?
A: No, Taylor does not apply to substantive Hobbs Act Robbery Cases.
Q: In my case, I was charged and convicted of a 924(c) crime although I was not found with a gun. Can I get relief under Taylor?
A: Not solely for this reason. The categorical approach indicates that we look at the language of the way the crime is written and then check that against the definition of the term "crime of violence." The actual facts and circumstances surrounding the crime (i.e. the "what had happened was" of a particular case) are not relevant in the categorical approach itself.
Q: In my case, the underlying crime was dismissed and I was just charged with the 924(c). Doesn't that mean that there is no underlying "crime of violence" for purposes of the 924(c)?
A: No, because the 924(c) crime is still in furtherance of another crime, even if the later-dismissed crime is listed on the indictment.
Q: I have a 924(c) in furtherance of a drug trafficking crime. It wasn't violent, so does that mean that I get relief under Taylor?
A: No, Taylor does not apply to drug trafficking crimes.
Q: My indictment was for a 924(c) in furtherance of a drug trafficking crime but what had really happened was an agent convinced me and a group of people to try to rob a dope house. We made a plan to rob the house and then we were arrested while getting supplies. Since that was really an attempted hobbs act robbery, can we get relief under Taylor?
A: No, because under the categorical approach you do not look at the underlying facts of the crime.
Contact our Office With More Questions
Seeking relief based on Taylor may be very difficult for individuals depending on the procedural posture of their case, where they were sentenced, and where they are incarcerated. As I said above, it is a very case-specific inquiry. If you are interested in discussing a potential Taylor-based claim, please contact our office.