HIDALGO v. UNITED STATES (2021)

SUMMARY ORDER

Petitioner-Appellant Efrain Hidalgo appeals from an order of the district court, entered August 8, 2018, denying his motion for relief under 28 U.S.C. § 2255. Hidalgo argues that his firearm conviction under 18 U.S.C. § 924 is invalid because it was not based on a valid “crime of violence” in light of United States v. Davis, ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), and United States v. Barrett, 937 F.3d 126 (2d Cir. 2019). We assume the reader's familiarity with the record.

We review de novo a district court's denial of a 28 U.S.C. § 2255 motion. See McCloud v. United States, 987 F.3d 261, 264 (2d Cir. 2021). As relevant here, 18 U.S.C. § 924(c) provides enhanced penalties for anyone who “uses or carries a firearm” in connection with a “crime of violence.” Id. § 924(c)(1)(A). The statute defines a “crime of violence” as a felony that either “(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another” (the “elements clause”), or “(B) ․ by its nature involves, a substantial risk that physical force against the person or property of another may be used in the course of committing the offense” (the “residual clause”). Id. § 924(c)(3)(A)-(B). In Davis, the Supreme Court held that the residual clause was unconstitutionally vague. See 139 S. Ct. at 2336. It did not disturb the elements clause. In Barrett, this Court found that Hobbs Act robbery conspiracy is not categorically a crime of violence in light of Davis. See Barrett, 937 F.3d at 130.

The record makes it abundantly clear that the predicate crimes underlying Hidalgo's § 924(c) conviction include attempted Hobbs Act robbery. Hidalgo claims that only Hobbs Act robbery conspiracy—not attempted Hobbs Act robbery—underlies his conviction. In support, he points to a single sentence in the transcript of his plea hearing in which the Government characterized the conduct underlying Hidalgo's § 924(c) charge as the discharge of “a firearm during a conspiracy in attempt to forcibly steal property and extort assets from” two persons. Appellant's App'x 41 (emphasis added). Even assuming the word “in” rather than “and” in the transcript is not just a typographical error, the entirety of the record—including the rest of the transcript—shows that Hidalgo knowingly acknowledged the use of a firearm “during a robbery attempt.” Id. at 41.

Hidalgo also claims that attempted Hobbs Act robbery does not qualify as a crime of violence. But this argument is foreclosed by our recent decision in United States v. McCoy that “an attempt to commit Hobbs Act robbery ․ categorically qualifies as a crime of violence.” 995 F.3d 32, 55 (2d Cir. 2021) (internal quotation marks and alteration omitted).

We have considered all of Hidalgo's remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.