61 F.4th 295
2d Cir.2023Background
- In 2018 Dwaine Collymore pleaded guilty to: conspiracy to commit Hobbs Act robbery (§1951), attempted Hobbs Act robbery (§1951 & 2), using/brandishing/discharging a firearm during a crime of violence (§924(c)), and killing a person during a crime of violence (§924(j)).
- The underlying facts: during an attempted Hobbs Act robbery Collymore shot and killed a defenseless victim; the district court sentenced him to 525 months’ imprisonment.
- The Second Circuit affirmed in 2021; the Supreme Court then vacated and remanded for reconsideration in light of United States v. Taylor.
- Taylor held that attempted Hobbs Act robbery is not categorically a “crime of violence” under §924(c)(3)(A), undermining §924(c) predicates based on attempt.
- Collymore also challenged his plea under Rule 11, arguing the magistrate misinformed him about a 30-year mandatory minimum later reduced to 15 years by the First Step Act.
- The panel vacated Counts Three (§924(c)) and Four (§924(j)), affirmed the remaining convictions, rejected the Rule 11/plain-error claim, and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether attempted Hobbs Act robbery qualifies as a "crime of violence" for §924(c) (and thus as a predicate for §924(j)). | The government maintained the convictions should stand (hist. view that attempt could qualify). | Collymore argued attempt does not categorically qualify under Taylor. | Vacated Counts Three and Four: attempted Hobbs Act robbery is not a §924(c) crime-of-violence predicate after Taylor. |
| Whether the magistrate's statement that Collymore faced a 30-year mandatory minimum (pre-First Step Act) violated Rule 11 and requires vacatur under plain-error review. | The government argued any misstatement was rectified before sentencing, Collymore never sought to withdraw his plea, and no reasonable probability he would have pleaded differently. | Collymore argued the misstatement and counsel concerns undermined the voluntariness/knowing nature of his plea. | Rejected Collymore's plain-error claim: no reasonable probability the erroneous statement affected his decision to plead; plea upheld. |
Key Cases Cited
- United States v. Taylor, 142 S. Ct. 2015 (held attempted Hobbs Act robbery is not a categorical "crime of violence" under §924(c)(3)(A))
- United States v. McCoy, 58 F.4th 72 (2d Cir. 2023) (applied Taylor to reverse §924(c) convictions predicated on attempted Hobbs Act robbery)
- United States v. Hill, 890 F.3d 51 (2d Cir. 2018) (§924(j) requires killing "in the course of" a §924(c) violation)
- Wallace v. United States, 43 F.4th 595 (6th Cir. 2022) (post-Taylor reversal of §924(j) conviction predicated on attempted Hobbs Act robbery)
- United States v. Harrington, 354 F.3d 178 (2d Cir. 2004) (district court must rectify confusion about changed law before sentencing)
- United States v. Espinal, 634 F.3d 655 (2d Cir. 2011) (plain-error standard requires reasonable probability outcome would differ absent error)
- United States v. Westcott, 159 F.3d 107 (2d Cir. 1998) (if a reduced mandatory minimum mattered, defendant likely would have sought to withdraw plea)