United States v. Dussard
967 F.3d 149
2d Cir.2020Background
- In Sept. 2016 Dussard and co-conspirators were arrested attempting an armed robbery of persons they believed were transporting ~12 kg of cocaine; police seized three pistols.
- Indictment charged Count One: Hobbs Act robbery conspiracy (18 U.S.C. §1951); Count Two: narcotics conspiracy (21 U.S.C. §§841, 846); Count Three: §924(c) firearm offense alleging possession during and in relation to both a crime of violence (the Hobbs Act robbery) and a drug‑trafficking crime.
- Plea Agreement (May 2017): Dussard pleaded guilty to Counts One and Three; Count Three was described in the agreement and at the plea hearing as using/carrying a firearm in relation to a crime of violence (the Hobbs Act robbery).
- Sentenced (Mar. 15, 2018) to 24 months on Count One, consecutive 60 months mandatory on Count Three; the judgment mistakenly recited Count Three as possession in furtherance of a narcotics conspiracy.
- After Davis (2019) and this Circuit’s Barrett (2019) holding that Hobbs Act conspiracy cannot serve as a §924(c) "crime of violence," Dussard appealed, arguing his §924(c) conviction was invalid; the government conceded the error but argued it did not affect substantial rights under plain‑error review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Count Three is invalid because Hobbs Act conspiracy is not a §924(c) "crime of violence." | Dussard: Count Three must be vacated because Barrett/Davis show Hobbs Act conspiracy cannot be a §924(c) crime of violence. | Government: Concedes Davis/Barrett render the crime‑of‑violence predicate invalid (error). | Court: Error was plain (Davis/Barrett) but the inquiry proceeds to prejudice under plain‑error review. |
| Whether the plain error affected Dussard's substantial rights (prejudice) so reversal is required. | Dussard: He pleaded guilty based on the crime‑of‑violence description and would not have pleaded if Count Three could not rest on Hobbs Act conspiracy. | Government: Record supports an alternate drug‑trafficking predicate (Count Two); Dussard would have accepted the same §924(c) plea tied to the narcotics conspiracy to avoid greater exposure. | Court: No reasonable probability he would have refused the plea; error did not affect substantial rights; judgment affirmed. |
Key Cases Cited
- United States v. Davis, 139 S. Ct. 2319 (2019) (invalidating the residual clause of §924(c)(3)(B) as unconstitutionally vague)
- United States v. Barrett, 937 F.3d 126 (2d Cir. 2019) (applying Davis and holding Hobbs Act conspiracy is not a §924(c) crime of violence)
- Dominguez Benitez v. United States, 542 U.S. 74 (2004) (plain‑error prejudice standard for plea cases: reasonable probability that, but for error, defendant would not have pleaded)
- United States v. Groysman, 766 F.3d 147 (2d Cir. 2014) (summarizing the four‑part plain‑error/Olano test)
- United States v. Vonn, 535 U.S. 55 (2002) (reviewing the whole record to assess plea‑related errors)
- Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (vagueness principles bearing on "crime of violence" definitions)