United States v. Waite, No. 18-2651 (2d Cir. 2021)
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Defendant appealed his conviction and sentence on four counts of using a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. 924(c)(1)(A) and 2. After the Second Circuit vacated defendant's original 2011 sentence, the district court resentenced defendant to a mandatory minimum term of 115 years' imprisonment. On appeal, defendant argues that his section 924(c) convictions, predicated on his commission of Hobbs Act robbery and attempted Hobbs Act robbery (as well as aiding and abetting the same), are invalid in light of the Supreme Court's decision in United States v. Davis, 139 S. Ct. 2319 (2019), because the predicate offenses do not constitute crimes of violence; his revised 115-year sentence violates the Eighth Amendment's prohibition against cruel and unusual punishments following Congress's passage of the First Step Act of 2018; and, even if there is no Davis error or Eighth Amendment violation, this court should nonetheless vacate his sentence and remand for resentencing so that the district court can reconsider his sentence in view of the First Step Act.
The Second Circuit reviewed all defendant's arguments on appeal and found them to be without merit. The court concluded that its decision in United States v. McCoy, 995 F.3d 32 (2d Cir. 2021), in which it held that attempted Hobbs Act robbery and aiding and abetting Hobbs Act robbery categorically qualify as crimes of violence, precludes plaintiff's Davis challenge to his section 924(c) convictions. In regard to plaintiff's remaining arguments, the court held that the passage of the First Step Act does not render his sentence cruel and unusual or otherwise warrants remand to the district court for yet another resentencing.
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