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Second Circuit Vacates § 924 Convictions Predicated on Attempted Hobbs Act Robbery

by Douglas Ankney

The U.S. Court of Appeals for the Second Circuit vacated two 18 U.S.C. § 924 convictions that were predicated on attempted Hobbs Act robbery because attempted Hobbs Act robbery is not categorically a crime of violence.

In 2018, Dwaine Collymore pleaded guilty to four counts, viz., conspiracy to commit Hobbs Act robbery (Count 1); attempted Hobbs Act robbery (Count 2); using, brandishing, and discharging a firearm during and in relation to a crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A)(i), (ii), (iii), and (2) (Count 3); and murdering a person with a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 924(j)(1) and (2) (Count 4). The predicate “crime of violence” sustaining the convictions of Counts 3 and 4 was the attempted Hobbs Act robbery of Count 2. The U.S. District Court for the Southern District of New York sentenced Collymore to 525 months in prison, and he timely appealed.

The Second Circuit affirmed, but in 2022, the U.S. Supreme Court vacated the judgment and remanded to the Second Circuit for further consideration in light of United States v. Taylor, 142 S. Ct. 2015 (2022).

Collymore argued that Counts 3 and 4 “must be vacated because they derive from his conviction for attempted Hobbs Act robbery, which he argued is not a crime of violence.” The Second Circuit determined that “[a]fter Taylor, Collymore is correct. Attempted Hobbs Act robbery no longer qualifies as a crime of violence under § 924(c)(3)(A), and therefore cannot serve as a predicate for Collymore’s conviction under 924(c)(1)(A).” See United States v. McCoy, 58 F.4th 72 (2d Cir. 2023). Additionally, since an element of Collymore’s offense under § 924(j)(1) is that he was “in the course of a violation of [§ 924(c)],” Collymore’s attempted Hobbs Act robbery could not serve as a predicate for his conviction under § 924(j)(1). United States v. Hill, 890 F.3d 51 (2d Cir. 2018).

Accordingly, the Court vacated Collymore’s convictions on Count 3 and Count 4, affirmed his convictions in all other respects, and remanded to the District Court for resentencing in light of the partial vacatur. See: United States v. Collymore, 61 F.4th 295 (2d Cir. 2023).   

 

 

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