Pablo Lovo and Joel Sorto were found guilty of conspiracy to commit Hobbs Act robbery, 18 U.S.C. 1951, and using, carrying or possessing a firearm during a crime of violence. 18 U.S.C. 924(c). Lovo and Sorto appealed their convictions to the D.C. Circuit, which garnered a remand on claims of ineffective assistance of counsel. However, in that appeal, the D.C. Circuit held that the “residual clause” of 18 U.S.C. 924(c)(3)(B) was not unconstitutionally vague.

After that decision, the Supreme Court issued its opinion in Sessions v. Dimaya, which held that 18 U.S.C. 16(b) is unconstitutionally vague. Lovo and Sorto subsequently sought rehearing on the basis that Dimaya requires vacatur of their 924(c) convictions.

The court noted that 18 U.S.C. 16(b) and 924(c)(3)(B) were “materially identical.” And the government conceded that the panel should grant rehearing to determine the impact of Dimaya. Nonetheless, the government argued that 924(c)(3)(B) requires a case-specific approach that considers the defendant’s own conduct, rather than the “ordinary case” of the crime. As the D.C. Circuit noted, the government’s argument was an attempt to distinguish 924(c) to avoid “the constitutional concerns that [a categorical] interpretation would create following Dimaya.”

But, circuit precedent held that section 924(c)(3)(B) requires the use of the categorical approach. United States v. Kennedy, 133 F.3d 53, 56 (D.C. Cir. 1998). Therefore, the court rejected the government’s argument of distinguishing 924(c)(3) from section 16.

The D.C. Circuit held that the Supreme Court’s decision in Dimaya invalidates the residual clause of 18 U.S.C. 924(c)(3)(B). However, the court noted that it takes no position on whether conspiracy to commit Hobbs Act robbery may still qualify under 18 U.S.C. 924(c)(3)(A).
The court vacated Lovo’s and Sorto’s 924(c) convictions, and remanded to the district court for further proceedings.

United States v. Yonas Eshetu, a.k.a. Yonas Sebsibe, No. 15-3020

JEREMY’S TAKE: This case was decided earlier this month, and I have since received a lot of inquiries as to what impact Eshetu may have. The D.C. Circuit’s opinion is critical because it holds that 924(c)(3)(B) is in fact invalidated after the Court’s decision in Dimaya. But, the D.C. Circuit did not specifically address whether Hobbs Act conspiracy fails to qualify as a crime of violence under the elements clause of 924(c)(3)(A). I imagine this issue will be decided in the D.C. Circuit in the near future.

Since Dimaya, I have also received many inquiries as to what circuits have held Hobbs Act (substantive, conspiracy or attempted) fails to qualify as a crime of violence under 924(c)(3). I am working on a future newsletter that will take a circuit-by-circuit look at the impact of Dimaya, specifically on Hobbs Act related offenses. Keep an eye out for this.

The law firm of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had successful outcomes in more than 60 cases in the past three years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve.

About the Law Office of Jeremy Gordon:

Located in the Dallas/Fort Worth Area, the Law Office of Jeremy Gordon has been an award winning federal criminal defense firm since 2012. We have had favorable outcomes in more than 70 cases in the past four years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve. You can also add us on Facebook or Twitter.  You can sign up for our newsletter below.

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The Federal Prison’s Visitation Policy is Neither Visitation nor a Policy

I am all for the incarcerated persons seeing their loved ones inside the walls of the federal prisons. It is one of the things that criminal justice advocates have shown is proven to fight recidivism. But I’m just not sure that handling it in this manner is the right thing to do. Between this, cold and flu season and cramped prisons I do believe that the prisons could experience a spike in COVID-19 cases all over the United States. It feels like a time to show that everything is back to normal at a time when it just isn’t. I am afraid that without a change we could see an inspector general report similar to the one at Lompoc.

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