Vasquez-Gomez v. United States

Background

Modesto Vasquez-Gomez filed a petition under 28 U.S.C. § 2255, a procedure allowing a federal prisoner to challenge a sentence. He argued that his conviction under 18 U.S.C. § 924(c) could not stand because attempted Hobbs Act robbery is not a “crime of violence.” His § 924(c) conviction concerned using, carrying, and possessing a firearm during and in furtherance of a crime of violence.

Vasquez-Gomez had pleaded guilty to conspiracy to commit Hobbs Act robbery, attempted Hobbs Act robbery, and the firearm offense. The court sentenced him to 97 months on the robbery-related counts and a consecutive 60 months on the firearm count. The Second Circuit affirmed his judgment in 2015.

Prior Recommendation and Second Circuit Decision

After the Supreme Court’s decision in United States v. Davis, the court treated Vasquez-Gomez’s petition as timely and directed supplemental briefing on whether attempted Hobbs Act robbery qualifies as a crime of violence under the “elements clause” of § 924(c)(3)(A). That clause covers an offense requiring the use, attempted use, or threatened use of physical force.

Magistrate Judge Katharine Parker recommended granting the petition. She concluded that a person could be convicted of attempted Hobbs Act robbery without having used, threatened to use, or attempted to use force.

While the government’s objections were pending, the Second Circuit decided United States v. McCoy. It held that attempted Hobbs Act robbery is a crime of violence under § 924(c)(3)(A). The Second Circuit reasoned that an attempt requires both an intent to complete the underlying crime, including its force element, and a substantial step toward completing that crime.

Ruling

Judge Paul G. Gardephe sustained the government’s objections to Judge Parker’s report and recommendation. The court held that, because McCoy determined that attempted Hobbs Act robbery qualifies as a crime of violence under § 924(c)(3), Vasquez-Gomez’s § 2255 petition had to be denied.

The court therefore sustained the government’s objections and denied the petition. It directed the clerk to mail the order to Vasquez-Gomez and close the civil case. His motions for appointment of counsel and for an expedited ruling were denied as moot.