The defendant in Robinson was convicted of Hobbs Act robbery and of brandishing a firearm during a crime of violence (the Hobbs Act robbery). The Circuit considered the language of the Hobbs Act robbery statute in conjunction with the brandishing conviction under Section 924(c). The Court said that looking at a contemporaneous conviction allows a court to determine the basis for a defendant’s predicate conviction and the defendant suffers no prejudice because the court is not finding any new facts which are not already of record. The Circuit framed the question as whether a Hobbs Act robbery committed while brandishing a firearm is a crime of violence and concluded that the answer must be yes.
Judge Fuentes filed a concurring opinion. He explained that the categorical approach should be used even when the convictions are simultaneous. However, he concludes that Hobbs Act robbery is categorically a crime of violence under 924(c)(3)(A), finding persuasive a Second Circuit decision, United States v. Hill, 832 F.3d 135 (2d Cir. 2016), that all the alternative means of committing a Hobbs Act robbery satisfy the force clause.
In Galati, the defendant was convicted of using interstate commerce facilities in the commission of a murder-for-hire, in violation of 18 U.S.C. § 1958, and discharging a firearm during a crime of violence (the murder-for-hire). The Circuit framed the question as whether a violation of Section 1958 which results in personal injury and during which a firearm is discharged is a crime of violence and concluded that it is a crime of violence. The Court noted that the discharge of the firearm coupled with resulting personal injury qualifies as the use of physical force.
The Circuit declined to address the defendants’ challenge to the residual clause in 18 U.S.C. § 924(c)(3)(B).
It appears that under the Circuit’s logic a contemporaneous conviction of any crime along with a 924(c) conviction of either brandishing or discharging a firearm will qualify as a crime of violence under the force clause of 924(c)(3)(A).