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First Circuit Joins Sister Circuits Holding Hobbs Act Robbery Conspiracy not Crime of Violence for 924(c)

The consolidated appeal came after three defendants were accused of beating and robbing several drug dealers in Maine in 2014. They were charged with conspiracy to commit Hobbs Act robbery (18 U.S.C. § 1951) and use of a firearm in furtherance of that robbery (§ 924(c)), among other charges. All three challenged their § 924(c) charges on the basis that a conspiracy is not a completed offense and therefore not a “crime of violence” under § 924(c). While the district court noted a division of the federal courts on that question, it ruled that a conspiracy still qualified under § 924(c) and denied their challenges. See United States v. Turner, 501 F.3d 59 (1st Cir. 2007) (holding Hobbs Act robbery conspiracy constitutes crime of violence for § 924(c) purposes).

One defendant pleaded guilty but reserved his right to appeal the § 924(c) count, and the other two went to trial and were convicted. On appeal, the defendant who pleaded guilty was eventually remanded in light of United States v. Davis, 139 S. Ct. 2319 (2019), which held that the “residual clause” of § 924(c) is unconstitutionally vague. The two who went to trial appealed after Davis.

Prior to Davis, the First Circuit’s precedent required courts to take a “real world” look at a defendant’s conduct to determine whether the predicate offense’s conduct is a “crime of violence” under § 924(c)(3). There were two ways a defendant’s conduct could qualify at the time: (1) it involved the “use, attempted use, or threatened use of physical force,” or (2) it involved a “substantial risk that physical force” may be used. That last part, the residual clause, was declared unconstitutionally vague by Davis.

The question then became whether conspiracy to commit Hobbs Act robbery in this case involved the use of force. The district court (prior to Davis) ruled that because the defendants beat the drug dealers with a crowbar and brandished a firearm, there was a use of force. The court followed the First Circuit’s “real world” analysis and rejected the challenges to their § 924(c) charges.

On appeal, the First Circuit noted that Davis changed the legal landscape of § 924(c) convictions and swiftly vacated the two defendants’ § 924(c) convictions, after the Government conceded they were wrong. The only way a conspiracy to commit Hobbs Act robbery could fit under §  924(c) was under the residual clause, which is now dead, and a conspiracy was simply an agreement and not the crime itself, so no force was used to complete that agreement (regardless of the conduct of the defendants).

Though the Court did not reach the issue, the district court noted that the § 924(c) charge for all three defendants was expressly tied to the robbery, not the drug charge. While none was convicted of the drug charge, § 924(c) could have still attached to the dropped or acquitted charge. The Government never disputed the § 924(c) charge was for the robbery.

The Court also noted that because the § 924(c) convictions were part of the overall sentence imposed, even though they were consecutive to the underlying offenses, resentencing was required because they could not be separated so easily.

Accordingly, the Court vacated the § 924(c) convictions and remanded for resentencing. See: United States v. Lara, 970 F.3d 68 (1st Cir. 2020).

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United States v. Lara



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