United States v. Culbert, 453 F.Supp.3d 595

Defendants charged in Count 3 under 18 U.S.C. § 924(c)(1)(A)(i) for possessing and brandishing a firearm during an alleged attempted Hobbs Act robbery.
After United States v. Davis, only § 924(c)’s elements clause (not the invalidated residual clause) may predicate a § 924(c) conviction; courts must apply the categorical approach.
The Second Circuit held Hobbs Act robbery (completed offense) is a crime of violence; it later held Hobbs Act conspiracy is not a § 924(c) crime of violence in United States v. Barrett.
The legal question: whether attempted Hobbs Act robbery, under the federal "substantial step" attempt standard, is categorically a crime of violence under the elements clause.
The court reviewed precedent showing many nonviolent acts (reconnaissance, procuring supplies, surveillance, getaway planning) can satisfy a federal substantial-step attempt, and relied on the Model Penal Code substantial-step examples.
The Government urged cases holding attempted Hobbs Act robbery violent and relied on decisions like St. Hubert and Tabb; the court distinguished those and concluded attempted Hobbs Act robbery is not categorically a crime of violence and dismissed Count 3.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether attempted Hobbs Act robbery qualifies as a "crime of violence" under § 924(c)(3)(A) (elements clause)	Attempt requires intent to commit all elements of completed Hobbs Act robbery (including forcible taking); attempted force counts under the statute, so attempt is violent	Federal attempt can be satisfied by nonviolent "substantial steps" (surveillance, procuring gear, recon), so minimum conduct need not involve force	Attempted Hobbs Act robbery is not categorically a crime of violence; § 924(c) count dismissed
Whether authorities like Tabb and St. Hubert compel treating federal attempt as categorically violent	Tabb and some circuits treat attempts of violent crimes as violent predicates; statutory language equates attempted and completed force	Tabb involved state attempt law (more demanding) and assault (inherently violent); treating broad federal attempt as violent would revive Davis-era vagueness	Court rejects reliance on Tabb/St. Hubert; distinguishes state attempt and assault; holding remains that federal attempt is not categorically violent

United States v. Davis, 139 S. Ct. 2319 (invalidated § 924(c) residual clause as unconstitutionally vague)
United States v. Hill, 890 F.3d 51 (2d Cir.) (discussing categorical approach and elements clause)
United States v. Barrett, 937 F.3d 126 (2d Cir.) (Hobbs Act conspiracy not a § 924(c) crime of violence post-Davis)
Descamps v. United States, 570 U.S. 254 (categorical approach requires looking only to statutory elements)
Gonzales v. Duenas-Alvarez, 549 U.S. 183 (limits use of "legal imagination" under the categorical approach)
United States v. Stallworth, 543 F.2d 1038 (2d Cir.) (attempt conviction upheld based on nonviolent preparatory acts)
United States v. Jackson, 560 F.2d 112 (2d Cir.) (attempt conviction upheld despite lack of violent act)
United States v. St. Hubert, 909 F.3d 335 (11th Cir.) (treated attempted Hobbs Act robbery as crime of violence; court criticized its analysis)
United States v. Tabb, 949 F.3d 81 (2d Cir.) (held certain state-law attempts are violent predicates; distinguished here on state-law standard)
United States v. Thrower, 914 F.3d 770 (2d Cir.) (involved state attempted robbery; distinguished due to state attempt standard)