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TWO CIRCUITS SPLIT ON HOBBS ACT CONSPIRACY AS VIOLENT CRIME

Two more federal circuits last week joined the chorus of appellate courts holding that a Hobbs Act robbery supports a conviction under 18 USC 924(c) for using a gun during crimes of violence, but they split on whether a conspiracy to commit Hobbs Act robbery is itself violent.

The 2nd Circuit continues to hold that the conspiracy to commit a violent crime is also a violent crime. The 5th Circuit, however, ruled that a conspiracy to commit Hobbs Act robbery can only be violent under the 924(c) residual clause, and it held that the residual clause is unconstitutionally vague in light of last April’s Supreme Court decision in Sessions v. Dimaya.

The split may set up a Supreme Court decision on conspiracy as a violent crime down the road, but probably not in the 2018-2019 term, which starts in two weeks.

United State v. Barrett, Case No. 14-2641-cr (2nd Cir. Sept. 10, 2018)

United State v. Davis, Case No. 16-10330 (5th Cir. Sept. 7, 2018)

– Thomas L. Root