United States v. McCoy, 58 F.4th 72

Defendants Earl McCoy and Mathew Nix were convicted after trial in the W.D.N.Y.; this Court in 2021 affirmed in part and reversed in part, including affirming §924(c) convictions for brandishing firearms during attempted Hobbs Act robberies.
The Supreme Court vacated and remanded this Court’s judgment for reconsideration in light of United States v. Taylor (2022).
Taylor held that attempted Hobbs Act robbery does not qualify as a "crime of violence" under the elements clause of 18 U.S.C. § 924(c)(3)(A) because an attempt need not categorically require use, attempted use, or threatened use of force.
On remand this panel concluded Counts 4 and 6 (brandishing during attempted Hobbs Act robberies) must be reversed because attempted Hobbs Act robbery is not a §924(c)(3)(A) crime of violence; Count 2 had already been reversed earlier.
The panel affirmed the §924(c) conviction tied to a completed Hobbs Act robbery (Count 12), rejected arguments that Chappelle or Taylor undermined that holding, and found no prejudicial spillover requiring reversal of the remaining convictions.
The case is remanded to the district court to dismiss Counts 2, 4, and 6 and for resentencing (including consideration of the First Step Act).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether attempted Hobbs Act robbery is a "crime of violence" under §924(c)(3)(A)	Attempted Hobbs Act robbery qualifies as a crime of violence	It does not; attempt does not require use/attempted use/threatened use of force	Reversed as to Counts 4 & 6 — attempted Hobbs Act robbery is not a §924(c)(3)(A) crime of violence (per Taylor)
Whether completed Hobbs Act robbery is a "crime of violence" under §924(c)(3)(A)	Completed Hobbs Act robbery qualifies	Taylor’s language casts doubt; Chappelle undermines prior precedent	Affirmed as to Count 12 — completed Hobbs Act robbery remains a §924(c)(3)(A) crime of violence
Whether Chappelle requires overturning prior Second Circuit precedent (e.g., Hill) on Hobbs Act robbery	Prior panel precedent stands; Chappelle not controlling here	Chappelle undermines Hill and warrants reversal	Rejected — panel cannot overrule Hill; Chappelle is not inconsistent with Hill for §924(c)(3)(A) purposes
Whether reversal of some counts requires vacatur of remaining convictions due to prejudicial spillover	No; evidence overlapped so no prejudice	Yes; reversed counts caused spillover warranting new trial	Rejected — no prejudicial spillover; remaining convictions mostly upheld; Counts 2, 4, 6 dismissed and remand for resentencing

United States v. Taylor, 142 S. Ct. 2015 (2022) (Supreme Court holding that attempted Hobbs Act robbery is not a crime of violence under §924(c)(3)(A) elements clause)
United States v. McCoy, 995 F.3d 32 (2d Cir. 2021) (this Court’s prior opinion affirming in part and reversing in part)
United States v. Hill, 890 F.3d 51 (2d Cir. 2018) (held completed Hobbs Act robbery is a categorical crime of violence under §924(c)(3)(A))
United States v. Chappelle, 41 F.4th 102 (2d Cir. 2022) (addressed Hobbs Act robbery under the Guidelines’ elements clause; discussed by parties)
United States v. Rooney, 37 F.3d 847 (2d Cir. 1994) (standard for prejudicial spillover when appellate court reverses some counts)
McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548 (1984) (juror misconduct test referenced)
United States v. O'Connor, 874 F.3d 1147 (10th Cir. 2017) (explained that §924(c)(3)(A) can encompass force against property as well as persons)