Sixth Circuit: Conspiracy to Commit Hobbs Act Robbery and Attempted Hobbs Act Robbery Are Not Qualifying Predicates to Sustain § 924(j) Conviction
by Douglas Ankney
The U.S. Court of Appeals reversed the U.S. District Court for the Middle District of Tennessee’s denial of Dominique Cordell Wallace’s 28 U.S.C. § 2255 motion because his convictions for conspiracy to commit Hobbs Act robbery and attempted Hobbs Act robbery are not qualifying predicates after United States v. Davis, 139 S. Ct. 2319 (2019), to sustain his conviction for discharging a firearm during a crime of violence that resulted in death in violation of 18 U.S.C. §§ 924(c) and 924(j).
Wallace, Demontay Thomas, and Robert Brooks attempted to rob the Express Market in Nashville, Tennessee. While the three men held the store’s owner and an employee at gunpoint, Thomas and Brooks attempted to get behind a wall to get to the cash register. As Brooks squeezed through a gap in the wall, Thomas crawled under the counter without informing Brooks. Startled, Brooks shot and killed Thomas. The gunshot caused Wallace and Brooks to flee, and on the way out of the store, Wallace shot the store employee in the head and in the stomach. Miraculously, the victim lived.
Wallace was ultimately convicted of numerous felonies, including conspiracy to commit Hobbs Act robbery, attempted Hobbs Act robbery, and discharging a firearm during a crime of violence that resulted in death. Describing Wallace’s case as “one of the worst violent cases” it had seen, the District Court sentenced Wallace to concurrent terms that resulted in an effective sentence of 30 years in prison. After Wallace’s judgment was affirmed on appeal, he filed a § 2255 motion, alleging, inter alia, that pursuant to Davis, his underlying Hobbs Act convictions are no longer qualifying predicates to sustain his convictions under §§ 924(c) & (j). The District Court denied the § 2255 motion, reasoning that Wallace’s attempted Hobbs Act robbery remained a “crime of violence” even after Davis. Wallace appealed.
The Sixth Circuit observed that Wallace had “pled guilty to ‘caus[ing] the death of a person through the use of a firearm’ [while] ‘in the course of a violation of’ 18 U.S.C. § 924(c).” And § 924(c)(1)(A) prohibits anyone from “using, carrying, brandishing, or discharging a firearm ‘during and in relation to any crime of violence,’” which is defined in § 924(c)(3)(A) as an offense that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another” (the “elements clause”), and “crime of violence” is also defined in § 924(c)(3)(B) as an offense “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense” (the “residual clause”). In Davis, the Supreme Court held that the residual clause is unconstitutionally vague. Davis applies retroactively in § 2255 proceedings. See In re Franklin, 950 F.3d 909 (6th Cir. 2020).
Consequently, Wallace’s Hobbs Act crimes can be “crimes of violence” only if his offenses fell within the elements clause. To make this determination, courts must use the “categorical approach” — which entails examining the offense’s elements in the abstract and disregarding the defendant’s actual conduct in a particular case. See United States v. Taylor, 142 S. Ct. 2015 (2022). That is, for purposes of the present case, the Court must ask whether every conspiracy to commit Hobbs Act robbery or every attempted Hobbs Act robbery will have “as an element the use, attempted use, or threatened use of physical force against the person or property of another,” regardless of whether Wallace’s actual conduct satisfied those elements. § 924(c)(3)(A).
The Court stated that conspiracy to commit Hobbs Act robbery does not fit within the elements clause to qualify as a crime of violence. United States v. Ledbetter, 929 F.3d 338 (6th Cir. 2019). And neither does attempted Hobbs Act robbery. United States v. Taylor, 142 S. Ct. 2015 (2022).
Accordingly, the Court reversed the District Court’s denial of Wallace’s § 2255 motion with respect to the § 924(j) conviction and remanded for proceedings consistent with its opinion. See: Wallace v. United States, 43 F.4th 595 (6th Cir. 2022).
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