United States v. Dominguez, No. 14-10268 (9th Cir. 2020)
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The Ninth Circuit held that the evidence was sufficient to support defendant's conviction of attempted Hobbs Act robbery. In this case, the evidence overwhelmingly showed that defendant had the specific intent to commit the robbery and had taken a "substantial step" toward its completion − arming himself with a handgun and driving to within about a block of the planned robbery with his accomplice, turning around only because he got ensnared in the fake crime scene.
In light of recent Supreme Court cases, the panel reiterated its previous holding that Hobbs Act armed robbery is a crime of violence for purposes of 18 U.S.C. 924(c)(3)(A). The panel also held that when a substantive offense is a crime of violence under section 924(c)(3)(A), an attempt to commit that offense is also a crime of violence. The panel agreed with the Eleventh Circuit that attempted Hobbs Act armed robbery is a crime of violence for purposes of section 924(c) because its commission requires proof of both the specific intent to complete a crime of
violence, and a substantial step actually (not theoretically) taken toward its completion. The panel reversed defendant's conviction of money laundering in Count Four and affirmed the remainder of the judgment.
Court Description: Criminal Law. The panel reversed a conviction of money laundering (18 U.S.C. § 1957); and affirmed the remainder of the judgment, which included convictions of Hobbs Act robbery (18 U.S.C. §§ 1951(a) and 2), attempt to commit Hobbs Act robbery (18 U.S.C. §§ 1951(a) and 2), conspiracy to commit Hobbs Act robbery (18 U.S.C. § 1951(a)), and possession of a firearm in furtherance of a crime of violence (18 U.S.C. § 924(c)). The panel held that the evidence was sufficient to support the conviction of attempted Hobbs Act robbery, where the evidence overwhelmingly showed that the defendant had the specific intent to commit the robbery and had taken a “substantial step” toward its completion— arming himself with a handgun and driving to within about a block of a planned robbery with his accomplice, turning around only because he got ensnared in a fake crime scene. In light of recent Supreme Court cases, the panel reiterated this court’s previous holding that Hobbs Act armed robbery is a crime of violence for purposes of 18 U.S.C. § 924(c)(3)(A). The panel held that when a substantive offense is a crime of violence under § 924(c)(3)(A), an attempt to commit that offense is also a crime of violence; and that attempted Hobbs UNITED STATES V. DOMINGUEZ 3 Act armed robbery is a crime of violence for purposes of § 924(c) because its commission requires proof of both the specific intent to complete a crime of violence, and a substantial step actually (not theoretically) taken toward its completion. The panel explained that it does not matter that the substantial step is not itself a violent act or even a crime; what matters is that the defendant specifically intended to commit a crime of violence and took a substantial step toward committing it. The panel observed that the definition of “crime of violence” in § 924(c)(3)(A) explicitly includes not just completed crimes, but those felonies that have the “attempted use” of physical force as an element; and that it is impossible to commit attempted Hobbs Act robbery without specifically intending to commit every element of the completed crime, which includes the commission or threat of physical violence. Because the panel determined that each of the defendant’s § 924(c) convictions is supported by a predicate crime of violence—completed and attempted Hobbs Act robbery, respectively—the panel did not reach whether conspiracy to commit Hobbs Act robbery is also a crime of violence under 18 U.S.C. § 924(c)(1)(A). Concurring in part and dissenting in part from Part V.B of the majority opinion, Judge Nguyen wrote that attempted Hobbs Act robbery plainly does not fit the definition of a crime of violence under the elements clause, § 924(c)(3)(A), because, as the majority acknowledges, attempted Hobbs Act robbery can be committed without any actual use, attempted use, or threatened use of physical force. 4 UNITED STATES V. DOMINGUEZ
The court issued a subsequent related opinion or order on September 13, 2022.
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