Vasquez-Gomez v. USA
ORDER: For the reasons stated above, the Government's objections to the R&R are sustained, and the Petition (Dkt. No. 1) is denied. The Clerk of Court is directed to mail a copy of this Order to Petitioner and to close this case (18 Civ. 8118). (Signed by Judge Paul G. Gardephe on 6/2/2021) (nb) Transmission to Docket Assistant Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- against -
18 Civ. 8118 (PGG) (KHP)
UNITED STATES OF AMERICA,
10 Cr. 955 (PGG)
PAUL G. GARDEPHE, U.S.D.J.:
Modesto Vasquez-Gomez has filed a petition pursuant to 28 U.S.C. § 2255 asking
this Court to vacate, set aside, or correct his sentence, on the grounds that attempted Hobbs Act
robbery does not constitute a “crime of violence” for purposes of 18 U.S.C. § 924(c)(3). For the
reasons stated below, Vasquez-Gomez’s petition will be denied.
On November 13, 2012, Petitioner pled guilty to (1) conspiracy to commit Hobbs
Act robbery, in violation of 18 U.S.C. § 1951 (id. Count One); (2) attempting to commit a Hobbs
Act robbery, in violation of 18 U.S.C. §§ 1951 and 2 (id. Count Two); and (3) using, carrying,
and possessing a firearm during and in relation to, and in furtherance of, a crime of violence, in
violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2 (id. Count Five). (Plea Tr. at 13-14, United
States v. Vasquez-Gomez, No. 10 Cr. 955 (S.D.N.Y. Nov. 13, 2012) (Dkt. No. 88); Superseding
Indictment, Vasquez-Gomez, No. 10 Cr. 955 (Dkt. No. 40))
On August 16, 2013, this Court sentenced Petitioner to 97 months’ imprisonment
on Counts One and Two, and 60 months’ imprisonment on Count Five, to run consecutive to the
sentence imposed on Counts One and Two. (Judgment at 3, Vasquez-Gomez, No. 10 Cr. 955
(Dkt. No. 103))
Petitioner filed a notice of appeal on August 23, 2013. (Notice of Appeal,
Vasquez-Gomez, No. 10 Cr. 955 (Dkt. No. 105)) On March 27, 2015, the Second Circuit
affirmed the judgment. (Mandate, Vasquez-Gomez, No. 10 Cr. 955 (Dkt. No. 117))
In August 2018, Petitioner submitted the instant petition to vacate, set aside or
correct his sentence pursuant to 28 U.S.C. § 2255, arguing that his Section 924(c) conviction
cannot stand under Sessions v. Dimaya, 138 S. Ct. 1204 (2018).1 (Dkt. No. 1) Vasquez-Gomez
contended that his petition is timely because it was filed within a year of the Supreme Court’s
decision in Dimaya which – according to Petitioner – recognizes a new substantive right that
applies retroactively. (Id. at 4-9)
In a November 26, 2018 submission, the Government opposed Vasquez-Gomez’s
petition on the grounds that his claim is time-barred because – although it was premised on
Dimaya – that decision does not create a new rule of constitutional law. (Govt. Opp. Br. (Dkt.
No. 6) at 6 & n.3) The Government also argued that the Petition should be denied on the merits,
citing, inter alia, United States v. Barrett, 903 F.3d 166 (2d Cir. 2018), in which the Second
Circuit ruled that conspiracy to commit Hobbs Act robbery is a “crime of violence” for purposes
of Section 924(c)(3). (Id. at 5-6 & n.2)
On December 28, 2018, this Court referred Vasquez-Gomez’s petition to
Magistrate Judge Katharine Parker for a Report and Recommendation (“R&R”). (Dkt. No. 8)
On June 24, 2019, the Supreme Court issued its decision in United States v.
Davis, 139 S. Ct. 2319 (2019), which holds that the “residual clause” of Section 924(c)(3) is void
The petition was filed on September 4, 2018. (See Dkt. No. 1)
for vagueness. 139 S. Ct. at 2336. The Court also vacated the Second Circuit’s decision in
United States v. Barrett, 903 F.3d 166 (2d Cir. 2018). Id. at 2325 n.2. On remand in Barrett, the
Second Circuit held that conspiracy to commit Hobbs Act robbery is not a “crime of violence”
under the remaining clause of Section 924(c)(3) – the “elements clause.” See United States v.
Barrett, 937 F.3d 126, 129-30 (2d Cir. 2019).
In a June 24, 2020 order, Judge Parker informed the parties that she deemed the
petition to be timely filed pursuant to Davis, and ordered the Government to submit
supplemental briefing addressing Davis, the Second Circuit’s decision in Barrett on remand, and
the question of whether attempted Hobbs Act robbery constitutes a “crime of violence” under the
elements clause of Section 924(c)(3). (June 24, 2020 Order (Dkt. No. 9))
The Government filed its supplemental brief on July 13, 2020. (Govt. Supp. Br.
(Dkt. No. 12))
JUDGE PARKER’S R&R
In her July 21, 2020 R&R, Judge Parker notes that while three other circuits “have
held that attempted Hobbs Act robbery is a crime of violence under the elements clause of
§ 924(c)(3) . . . [,] half of the district courts within this Circuit to have addressed the issue have
held that attempted Hobbs Act robbery is not a crime of violence for purposes of
§ 924(c)(3)(A).” (R&R (Dkt. No. 13) at 5-6) After considering the arguments on both sides,
Judge Parker concluded that “because a person can be convicted of attempted Hobbs Act robbery
without having used, threatened to use, or attempted to use force, it cannot be deemed a crime of
violence for purposes of the elements clause of § 924(c)(3) . . . .” (Id. at 8)
THE GOVERNMENT’S OBJECTIONS TO THE R&R
The Government filed objections to the R&R on July 31, 2020. The Government
urges this Court to “wait for guidance from the Second Circuit before addressing whether
attempted Hobbs Act Robbery is a ‘crime of violence’ under 18 U.S.C. § 924(c).” (Govt. Obj.
(Dkt. No. 14) at 1) The Government also contends that “the Second Circuit has repeatedly
recognized that an attempt to commit a crime of violence is itself a crime of violence,” and that
“every circuit court” and “every decision in this District has come to the same conclusion.” (Id.
THE SECOND CIRCUIT’S DECISION IN UNITED STATES V. MCCOY
On April 22, 2021, the Second Circuit issued its decision in United States v.
McCoy, 995 F.3d 32 (2d Cir. 2021), holding that attempted Hobbs Act robbery constitutes a
“crime of violence” under the elements clause of Section 924(c)(3)(A). See McCoy, 995 F.3d at
55-57. The Second Circuit reasoned that,
for substantive crimes of violence that include the use of physical force as an
element, defendants also commit crimes of violence when commission of those
crimes is attempted – because such attempts necessarily require (a) an intent to
complete the substantive crime (including an intent to use physical force) and (b)
a substantial step towards completing the crime (which logically means a
substantial step towards completion of all of that crime’s elements, including the
use of physical force). . . . Because we held in [United States v.] Hill that Hobbs
Act robbery categorically constitutes a crime of violence, see 890 F.3d [51, 53 (2d
Cir. 2018), cert. denied, 139 S. Ct. 844 (2019)], it follows as a matter of logic that
an “attempt” to commit Hobbs Act robbery – which the statute also expressly
prohibits, see 18 U.S.C. § 1951(a) – categorically qualifies as a crime of violence.
Id. at 55.
In so ruling, the Second Circuit rejected the defendants’ argument that attempted
Hobbs Act robbery is not a crime of violence because “a substantial step towards a completed
Hobbs Act robbery need not itself involve the ‘use . . . of physical force’ within the meaning of
§ 924(c)(3)(A).” According to the Circuit, “the substantive Hobbs Act robbery towards which
that substantial step leads necessarily would involve the ‘use of physical force,’ if completed.”
Id. at 56. The court likewise rejected the defendants’ argument that “substantive Hobbs Act
robbery need not always involve the actual use of force,” concluding that the defendants had not
shown that there was “‘a realistic probability, [rather than] a theoretical possibility,’ that the
statute at issue could be applied to conduct that does not constitute a crime of violence.”2 Id. at
56-57 (quoting Hill, 890 F.3d at 56).
REVIEW OF A MAGISTRATE JUDGE’S R&R
A district court reviewing a magistrate judge’s report and recommendation “may
accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1). Where, as here, a timely objection has been made to a
magistrate judge’s recommendation, the district court judge “shall make a de novo determination
of those portions of the report or specified proposed findings or recommendations to which
objection is made.” Id. However, “[o]bjections that are ‘merely perfunctory responses argued in
an attempt to engage the district court in a rehashing of the same arguments set forth in the
original [papers] will not suffice to invoke de novo review.’” Phillips v. Reed Grp., Ltd., 955 F.
Supp. 2d 201, 211 (S.D.N.Y. 2013) (quoting Vega v. Artuz, No. 97Civ.3775LTSJCF, 2002 WL
31174466, at *1 (S.D.N.Y. Sept. 30, 2002)) (alteration in Phillips). For portions of the R&R to
The Second Circuit noted that “[i]t is difficult even to imagine a scenario in which a defendant
could be engaged in conduct that would ‘culminate’ in a robbery and that would be ‘strongly
corroborative of’ his intent to commit that robbery, but where it would also be clear that he only
‘attempt[ed]’ to ‘threaten,’ and neither used nor even actually ‘threatened’ the use of force.”
Id. at 57 (citing United States v. Farhane, 634 F.3d 127, 147 (2d Cir. 2011); United States v.
Davis, 8 F.3d 923, 927 (2d Cir. 1993)) (alterations in McCoy).
which no timely objection is made, this Court’s review is limited to a consideration of whether
there is any “‘clear error on the face of the record’” that precludes acceptance of the
recommendations. Wingate v. Bloomberg, No. 11–CV–188 (JPO), 2011 WL 5106009, at *1
(S.D.N.Y. Oct. 27, 2011) (quoting Fed. R. Civ. P. 72(b) advisory committee’s note to 1983
addition) (citation omitted)).
The Government’s objections to the Magistrate Judge’s R&R will be sustained.
Given the Second Circuit’s ruling in McCoy that attempted Hobbs Act robbery constitutes a
“crime of violence” for purposes of Section 924(c)(3), Vasquez-Gomez’s petition must be
denied. See McCoy, 995 F.3d at 57.
For the reasons stated above, the Government’s objections to the R&R are
sustained, and the Petition (Dkt. No. 1) is denied.3 The Clerk of Court is directed to mail a copy
of this Order to Petitioner and to close this case (18 Civ. 8118).
Dated: New York, New York
June 2, 2021
Paul G. Gardephe
United States District Judge
On May 3, 2021, Petitioner moved for appointment of counsel and for an expedited ruling on
his petition. (Motion, Vasquez-Gomez, No. 10 Cr. 955 (Dkt. No. 130)) These motions are
denied as moot.
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