UNITED STATES v. CHEESE (2021)

SUMMARY ORDER

The government appeals from an order of the district court, entered February 12, 2020, dismissing four counts of a superseding indictment charging the use of firearms in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c). On appeal, the government argues that the district court erred in dismissing the four counts because attempted Hobbs Act robbery qualifies as a predicate “crime of violence” under 18 U.S.C. § 924(c). We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

On July 11, 2019, a grand jury returned a superseding indictment against seventeen defendants, including defendant-appellee Constantin Cheese. The superseding indictment charged the defendants -- members and associates of the Queens-based Makk Balla Brims set of the Bloods gang -- with, inter alia, attempted Hobbs Act robberies and violations of 18 U.S.C. § 924(c), which prohibits using a firearm in furtherance of a crime of violence.

On August 7, 2019, Cheese filed a motion to dismiss Count Twelve of the superseding indictment, which charged him with using a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c) -- specifically, in furtherance of an attempted Hobbs Act robbery of a home in Port Washington, New York on October 16, 2017. Cheese argued that because attempted Hobbs Act robbery is not a “crime of violence” under 18 U.S.C. § 924(c), the government had failed to charge him with the requisite predicate. Subsequently, defendants-appellees Andre Barnaby, Nahjuan Perry, Brandon Darby, and Pierre Raymond filed letters joining Cheese's motion as applied to their respective 18 U.S.C. § 924(c) counts -- Counts Eight, Ten, and Fourteen of the superseding indictment -- also predicated on attempted Hobbs Act robberies. On February 12, 2020, the district court held that attempted Hobbs Act robbery is not a “crime of violence” under 18 U.S.C. § 924(c) and dismissed Counts Eight, Ten, Twelve, and Fourteen of the superseding indictment as to defendants-appellees Constantin Cheese, Andre Barnaby, Brandon Darby, Antonio Davis, Avery Mitchell, Nahjuan Perry, Pierre Raymond, James Roberson, Shawn Silvera, Shamel Simpkins, and Kimberly Thompson. This appeal followed.¹

Whether an offense is a “crime of violence” under 18 U.S.C. § 924(c) is a question of law that this Court decides de novo. United States v. Scott, 990 F.3d 94, 104 (2d Cir. 2021) (en banc). Subsequent to the district court's order, this Court held 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 alterations omitted). Accordingly, Counts Eight, Ten, Twelve, and Fourteen of the superseding indictment were properly predicated, respectively, on Counts Seven, Nine, Eleven, and Thirteen alleging attempted Hobbs Act robberies. We therefore conclude that the district court erred in dismissing the 18 U.S.C. § 924(c) counts as to the defendants-appellees.

For the foregoing reasons, we VACATE the order of the district court and REMAND the matter for further proceedings.

FOOTNOTES

1.   The other ten defendants-appellees did not separately brief the appeal but joined in Cheese's brief.