United States v. Monico Dominguez ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10268
Plaintiff-Appellee,
D.C. No.
v. 3:12-cr-00834-EMC-1
MONICO DOMINGUEZ, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Argued and Submitted July 7, 2016
Submission Vacated July 12, 2016
Argued and Resubmitted December 10, 2019
Pasadena, California
Filed April 7, 2020
Before: Barry G. Silverman and Jacqueline H. Nguyen,
Circuit Judges, and Michael M. Anello, * District Judge.
Opinion by Judge Silverman;
Partial Concurrence and Partial Dissent by Judge Nguyen
*
The Honorable Michael M. Anello, United States District Judge
for the Southern District of California, sitting by designation.
2 UNITED STATES V. DOMINGUEZ
SUMMARY **
Criminal Law
The panel reversed a conviction of money laundering
(18 U.S.C. § 1957); and affirmed the remainder of the
judgment, which included convictions of Hobbs Act robbery
(18 U.S.C. §§ 1951(a) and 2), attempt to commit Hobbs Act
robbery (18 U.S.C. §§ 1951(a) and 2), conspiracy to commit
Hobbs Act robbery (18 U.S.C. § 1951(a)), and possession of
a firearm in furtherance of a crime of violence (18 U.S.C.
§ 924(c)).
The panel held that the evidence was sufficient to
support the conviction of attempted Hobbs Act robbery,
where the evidence overwhelmingly showed that the
defendant had the specific intent to commit the robbery and
had taken a “substantial step” toward its completion—
arming himself with a handgun and driving to within about
a block of a planned robbery with his accomplice, turning
around only because he got ensnared in a fake crime scene.
In light of recent Supreme Court cases, the panel
reiterated this court’s previous holding that Hobbs Act
armed robbery is a crime of violence for purposes of 18
U.S.C. § 924(c)(3)(A).
The panel held that when a substantive offense is a crime
of violence under § 924(c)(3)(A), an attempt to commit that
offense is also a crime of violence; and that attempted Hobbs
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. DOMINGUEZ 3
Act armed robbery is a crime of violence for purposes of
§ 924(c) because its commission requires proof of both the
specific intent to complete a crime of violence, and a
substantial step actually (not theoretically) taken toward its
completion. The panel explained that it does not matter that
the substantial step is not itself a violent act or even a crime;
what matters is that the defendant specifically intended to
commit a crime of violence and took a substantial step
toward committing it. The panel observed that the definition
of “crime of violence” in § 924(c)(3)(A) explicitly includes
not just completed crimes, but those felonies that have the
“attempted use” of physical force as an element; and that it
is impossible to commit attempted Hobbs Act robbery
without specifically intending to commit every element of
the completed crime, which includes the commission or
threat of physical violence.
Because the panel determined that each of the
defendant’s § 924(c) convictions is supported by a predicate
crime of violence—completed and attempted Hobbs Act
robbery, respectively—the panel did not reach whether
conspiracy to commit Hobbs Act robbery is also a crime of
violence under 18 U.S.C. § 924(c)(1)(A).
Concurring in part and dissenting in part from Part V.B
of the majority opinion, Judge Nguyen wrote that attempted
Hobbs Act robbery plainly does not fit the definition of a
crime of violence under the elements clause, § 924(c)(3)(A),
because, as the majority acknowledges, attempted Hobbs
Act robbery can be committed without any actual use,
attempted use, or threatened use of physical force.
4 UNITED STATES V. DOMINGUEZ
COUNSEL
Gene D. Vorobyov (argued), Law Office of Gene Vorobyov,
San Francisco, California, for Defendant-Appellant.
Vanessa Baehr-Jones (argued) and Susan B. Gray, Assistant
United States Attorneys; Barbara J. Valliere, Chief,
Appellate Division; Merry Jean Chan, Chief, Appellate
Section, Criminal Division; Melinga Haag, United States
Attorney; United States Attorney’s Office, Oakland,
California; for Plaintiff-Appellee.
OPINION
SILVERMAN, Circuit Judge:
On August 11, 2011, appellant Monico Dominguez and
a man named Milton Fierro robbed the Garda Cash Logistics
armored car warehouse in Santa Rosa, California. Wearing
masks and armed with an AK-47 rifle and either a 9-
millimeter or a .45 caliber handgun, the two men snuck into
the Garda warehouse. They pointed their guns at two guards,
put them on the ground, tied their hands and feet with rope,
and demanded access to the vault. The robbers made off with
over $900,000 in cash and two guns belonging to one of the
guards.
About a year later, Dominguez approached his friend
Kevin Jensen and offered him $100,000 to participate in
another Garda robbery, this time of a Garda armored car.
When Jensen found out that the FBI was offering a $100,000
reward for information about the previous year’s Garda
robbery, he contacted the FBI and became a confidential
UNITED STATES V. DOMINGUEZ 5
informant. That’s how the FBI was able to thwart the second
robbery before it was completed.
On August 6, 2012, Dominguez and Jensen drove toward
the Garda warehouse intending to hold up an armored car.
This time, Dominguez was armed with a .357 revolver.
Tipped off by Jensen, the FBI and local enforcement officers
staged a fake crime scene near the warehouse to make it
difficult for a vehicle to get close to it. While en route to the
warehouse, Dominguez received a phone call, after which
Dominguez told Jensen they had to terminate the plan
because of the unusual law enforcement activity near the
Garda building. Dominguez drove to within about a block or
so of the warehouse before turning around. Dominguez was
arrested the following day and charged with Hobbs Act
robbery of the Garda warehouse in 2011, attempted Hobbs
Act robbery of a Garda armored car in 2012, possession of
firearms in furtherance of both crimes, conspiracy, money
laundering, and structuring transactions.
We hold today that the evidence was sufficient to support
Dominguez’s conviction of attempted Hobbs Act robbery.
The evidence overwhelmingly showed that Dominguez had
the specific intent to commit the robbery and had taken a
“substantial step” toward its completion − arming himself
with a handgun and driving to within about a block of the
planned robbery with his accomplice, turning around only
because he got ensnared in the fake crime scene.
In light of recent Supreme Court cases, we also reiterate
our previous holding that Hobbs Act armed robbery is a
crime of violence for purposes of 18 U.S.C. § 924(c)(3)(A).
See United States v. Mendez, 992 F.2d 1488, 1491 (9th Cir.
1993).
6 UNITED STATES V. DOMINGUEZ
And, like the two other circuit courts that have
considered the question, we hold that when a substantive
offense is a crime of violence under 18 U.S.C.
§ 924(c)(3)(A), an attempt to commit that offense is also a
crime of violence. See United States v. Ingram, 947 F.3d
1021 (7th Cir. 2020); United States v. St. Hubert, 909 F.3d
335 (11th Cir. 2018); Hill v. United States, 877 F.3d 717 (7th
Cir. 2017). We agree with the Eleventh Circuit that
attempted Hobbs Act armed robbery is a crime of violence
for purposes of § 924(c) because its commission requires
proof of both the specific intent to complete a crime of
violence, and a substantial step actually (not theoretically)
taken toward its completion. St. Hubert, 909 F.3d at 351. It
does not matter that the substantial step—be it donning
gloves and a mask before walking into a bank with a gun, or
buying legal chemicals with which to make a bomb—is not
itself a violent act or even a crime. What matters is that the
defendant specifically intended to commit a crime of
violence and took a substantial step toward committing it.
The definition of “crime of violence” in § 924(c)(3)(A)
explicitly includes not just completed crimes, but those
felonies that have the “attempted use” of physical force as
an element. It is impossible to commit attempted Hobbs Act
robbery without specifically intending to commit every
element of the completed crime, which includes the
commission or threat of physical violence. 18 U.S.C. § 1951.
Since Hobbs Act robbery is a crime of violence, it follows
that the attempt to commit Hobbs Act robbery is a crime of
violence.
I. Convictions and Sentence
Following his arrest, Dominguez was charged with
eleven counts in connection with the 2011 robbery and the
attempted 2012 robbery. The relevant counts are:
UNITED STATES V. DOMINGUEZ 7
Count One: conspiracy to commit the 2011 robbery, in
violation of 18 U.S.C. § 1951(a);
Count Two: robbery in violation of 18 U.S.C. §§ 1951(a)
and 2;
Count Three: possession of a firearm in furtherance of a
crime of violence, namely the 2011 conspiracy (Count One)
and robbery (Count Two), in violation of 18 U.S.C.
§§ 924(c) and 2;
Count Four: money laundering in violation of 18 U.S.C.
§ 1957 in the August 30, 2011 cash purchase of a Harley-
Davidson motorcycle;
Count Eight: conspiracy to commit the August 6, 2012
robbery, in violation of 18 U.S.C. § 1951(a);
Count Nine: attempted robbery on August 6, 2012, in
violation of 18 U.S.C. §§ 1951(a) and 2; and
Count Ten: possession of a firearm in furtherance of a
crime of violence, namely the 2012 conspiracy (Count
Eight) and the 2012 attempted robbery (Count Nine). 1
In his closing argument, the prosecutor argued that
Dominguez had completed a “substantial step” toward the
2012 attempted robbery, because he turned his car around
only in response to law enforcement presence, not because
he’d had a change of heart. Dominguez’s counsel did not
object to the prosecutor’s arguments and, in his own closing,
1
Dominguez was indicted on additional money laundering and
structuring charges; however, Dominguez doesn’t argue any error in
those convictions, so we do not reach them.
8 UNITED STATES V. DOMINGUEZ
conceded (with his client’s consent) the defendant’s guilt of
the attempted robbery.
The jury convicted Dominguez of Counts One through
Ten in the indictment. The district court imposed a prison
sentence totaling 384 months and one day: one day for
Counts One, Two, and Four through Nine, to be served
concurrently with each other; 84 months for Count Three,
Dominguez’s first § 924(c) violation, to be served
consecutively to that one-day term; and 300 months for
Count Ten, Dominguez’s second § 924(c) conviction, to be
served consecutively to all other sentences imposed.
II. Standard of Review
We review insufficient evidence claims de novo. United
States v. Sullivan, 522 F.3d 967, 974 (9th Cir. 2008).
Evidence is sufficient to support a conviction if, viewed “in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Nevils,
598 F.3d 1158, 1163–64 (9th Cir. 2010) (en banc) (citation
omitted).
We review de novo whether a criminal conviction is a
crime of violence under § 924(c)(3). United States v. Begay,
934 F.3d 1033, 1037 (9th Cir. 2019). “Where, as here, a
party raises an argument for the first time on appeal, we
generally review for plain error; however, we are not limited
to plain error review when we are presented with a question
that is purely one of law and where the opposing party will
suffer no prejudice as a result of the failure to raise the issue
in the trial court.” Id. (citation and internal quotation marks
omitted). Here, whether Hobbs Act robbery, attempted
Hobbs Act robbery, and conspiracy to commit Hobbs Act
robbery are crimes of violence are pure questions of law, and
UNITED STATES V. DOMINGUEZ 9
the government, which has fully briefed the issue, suffers no
prejudice. See id. at 1037–38.
We review for plain error Dominguez’s claim that the
prosecutor misstated the law during closing argument,
because Dominguez raises this issue for the first time on
appeal. See, e.g., United States v. Joseph, 716 F.3d 1273,
1276 (9th Cir. 2013).
III. Count Four: Money Laundering (18 U.S.C. § 1957)
Count Four charged Dominguez with money laundering,
in violation of 18 U.S.C. § 1957, for buying a motorcycle
that he paid for in cash with money stolen in the robbery.
The government concedes, and we agree, that this conviction
must be vacated because the government failed to establish
an essential element—namely, that the funds at issue passed
through a financial institution. See 18 U.S.C. § 1957(defining “monetary transaction” as one “by, through, or to
a financial institution”); United States v. Ness, 565 F.3d 73,
78 (2d Cir. 2009) (“[I]n order to sustain a § 1957(a)
conviction, a financial institution must have been
involved.”). We reverse Count 4 of Dominguez’s
conviction. 2
IV. Count Nine: Attempted Hobbs Act Robbery
(18 U.S.C. §§ 1951(a) and 2)
Dominguez next argues that the government’s evidence
is legally insufficient to establish that he took a “substantial
step” toward completion of the August 2012 attempted
robbery. Instead, he argues that he never got sufficiently
2
We do not remand for resentencing because Dominguez’s one-day
sentence for Count Four was to be served concurrently with his one-day
sentences on Counts One, Two, and Five through Nine.
10 UNITED STATES V. DOMINGUEZ
close to the intended target because he voluntarily turned
around more than a block away from the warehouse.
We may consider Dominguez’s substantive argument
only if we find that he did not waive it when his counsel,
with Dominguez’s permission, repeatedly conceded
Dominguez’s guilt of the attempted robbery. See, e.g.,
United States v. Bentson, 947 F.2d 1353, 1356 (9th Cir.
1991) (rejecting defendant’s sufficiency claim after
defendant’s counsel made binding admission in closing). For
example, in his closing argument, defense counsel told the
jury:
Monico Dominguez, my client, is guilty of
Counts Eight and Nine. He is guilty. You can
go ahead and fill out the Verdict Form that
you’re going to get . . . This is not an easy
thing to tell you . . . . but my client is
authorizing me to do it because there really is
no dispute.
Later, counsel told the jury:
Mr. Dominguez, my client, planned a very,
very, very serious criminal act. He’s just
admitted it to you now. He’s telling you to
convict him of the August 2012 robbery,
Counts Eight and Nine.
Even assuming counsel’s statements are not binding
admissions, there is more than sufficient evidence in the
record to support Dominguez’s conviction for attempted
robbery. To sustain the conviction, the government must
prove that (1) Dominguez had the intent to commit the
robbery; and (2) Dominguez “took a substantial step toward”
committing that robbery. United States v. Nelson, 66 F.3d
UNITED STATES V. DOMINGUEZ 11
1036, 1042 (9th Cir. 1995). First, Dominguez concedes, in
his appellate briefing, that the government’s evidence of his
intent to commit the August 2012 robbery is not subject to
reasonable dispute.
Next, “[t]o constitute a substantial step, [Dominguez]’s
actions must go beyond mere preparation, and must
corroborate strongly the firmness of the [his] criminal
intent.” Id. The government’s evidence obviously meets this
burden. Dominguez organized the August 6, 2012 attempt,
geared up by dressing in dark clothes and body armor,
packed weapons, drove toward the targeted warehouse,
confirmed the code to the lock on the warehouse where the
armored car was to be stored after the robbery, and called off
the plan only after being alerted by a co-conspirator of heavy
law enforcement presence. These acts clearly manifest
Dominguez’s specific intent to rob a particular place in a
particular manner in the immediate future. See Hernandez-
Cruz v. Holder, 651 F.3d 1094, 1103 (9th Cir. 2011).
We are not persuaded by Dominguez’s argument that he
did not take a substantial step toward the robbery because he
turned around about a block away from the warehouse. This
physical distance, he argues, is greater than the proximity of
the would-be robbers in United States v. Buffington,
815 F.2d 1292 (9th Cir. 1987), and United States v. Still,
850 F.2d 607 (9th Cir. 1988), cases where this court found
that the evidence was insufficient to show that defendants
had taken a substantial step. The reasoning in those cases,
though, was not based on the defendants’ physical proximity
to the location to be robbed; the analyses instead centered on
whether the defendants had progressed far enough that,
absent independent circumstances, they would complete the
robbery. See Still, 850 F.2d at 610 (explaining that the “facts
d[id] not establish either actual movement toward the bank
12 UNITED STATES V. DOMINGUEZ
or actions that are analytically similar to such movement”);
Buffington, 815 F.2d at 1303 (characterizing defendants’
conduct as “entirely tentative and unfocused”).
Dominguez’s actions in, among other things, arming
himself, driving toward the warehouse, and turning around
only when he knew that there was a large police presence
near the warehouse, are sufficient to allow a rational trier of
fact to find the substantial step beyond a reasonable doubt.
Nevils, 598 F.3d at 1164.
Alternatively, Dominguez argues that we should reverse
his attempted robbery conviction because the prosecutor
misstated the law during his closing argument. Specifically,
the prosecutor explained the “substantial step” element to the
jury by telling them that:
[A] “substantial step” means that if Mr.
Dominguez had a change of heart, and he
went out there, started driving out, and
decided, “This is a bad idea. Somebody could
get killed. I could get killed. This is a serious
crime. I don’t want to do this,” and decided
to turn around and go home, he would not be
guilty of that step.
This description, Dominguez now says, improperly
overlaps the “substantial step” requirement with
Dominguez’s intent to commit the robbery, and so we should
reverse his conviction. We are not persuaded. Assuming for
the purpose of this discussion that the government erred,
then any error did not prejudice Dominguez in light of (1) his
counsel’s subsequent admission of Dominguez’s guilt; and
(2) the sufficiency of the evidence to support the conviction.
See, e.g., Joseph, 716 F.3d at 1277 (explaining that reversal
UNITED STATES V. DOMINGUEZ 13
on plain error review requires, among other things, finding
that the error affected defendant’s substantial rights).
There is no plain error in Dominguez’s conviction on
Count Nine, and we affirm.
V. Counts Three and Ten—Possession of a Firearm in
Furtherance of a Crime of Violence (18 U.S.C. § 924)
Dominguez argues, in supplemental briefing, that we
must reverse his convictions for possession of a firearm in
furtherance of a crime of violence, because the Supreme
Court has now held that 18 U.S.C. § 924(c)(3)(B), the so-
called “residual clause,” is unconstitutionally vague, and
because none of his predicate crimes qualify as a crime of
violence under § 924(c)(3)(A), the so-called “elements”
clause. We disagree.
18 U.S.C. § 924(c)(1)(A) prescribes heightened criminal
penalties for using or carrying a firearm “during and in
relation to,” or possessing a firearm “in furtherance of,” any
federal “crime of violence or drug trafficking crime.” In
United States v. Davis, 139 S.Ct. 2319, 2324 (2019), the
Supreme Court held that a “crime of violence” is an offense
that is a felony and “has as an element the use, attempted
use, or threatened use of physical force against the person or
property of another.” Id., quoting 18 U.S.C. § 924(c)(3)(A).
“Physical force” is “force capable of causing physical pain
or injury,” and includes “the amount of force necessary to
overcome a victim’s resistance.” Stokeling v. United States,
139 S. Ct. 544, 553−55 (2019), citing Johnson v. United
States, 559 U.S. 133, 140 (2010)); see also Ward v. United
States, 936 F.3d 914, 919 (9th Cir. 2019) (explaining that our
prior distinction between “substantial” and “minimal” force
in the ACCA robbery context is no longer viable after
Stokeling).
14 UNITED STATES V. DOMINGUEZ
The question then is whether an alleged predicate crime
meets the Johnson standard and thus qualifies as a crime of
violence. See United States v. Watson, 881 F.3d 782, 784
(9th Cir. 2018). We use the categorical approach to make
that determination. Id. Under this approach, the sole focus
is on the elements of the relevant statutory offense, not on
the facts underlying the convictions. Id. An offense is
categorically a crime of violence only if the least violent
form of the offense qualifies as a crime of violence. Id. 3
Where two counts served as predicate offenses for a § 924(c)
conviction, the conviction is lawful so long as either offense
qualifies as a crime of violence. See United States v. Gobert,
943 F.3d 878, 880 n.2 (9th Cir. 2019); see also Mendez,
992 F.2d at 1491 (“[W]here a defendant has been convicted
under a statute describing crimes of both violence and non-
violence, we need only find that the charged crime for which
the defendant was convicted constitutes a ‘crime of
violence.’”). 4
Dominguez’s predicate crimes were violations of
18 U.S.C. § 1951, which provides, in pertinent part:
(a) Whoever in any way or degree obstructs,
delays, or affects commerce or the
movement of any article or commodity in
commerce, by robbery or extortion or
3
18 U.S.C. § 1951 is a divisible statute, criminalizing both robbery
and extortion, so we apply the modified categorical approach to
determine which alternative formed the basis of Dominguez’s
conviction. Descamps v. U.S., 570 U.S. 254, 257 (2013). The indictment
makes clear that the predicate crimes at issue are robbery, attempted
robbery, and conspiracy to commit robbery.
4
We reject Dominguez’s argument that we must first analyze
whether conspiracy to commit Hobbs Act robbery is a crime of violence.
UNITED STATES V. DOMINGUEZ 15
attempts or conspires so to do, or
commits or threatens physical violence to
any person or property in furtherance of a
plan or purpose to do anything in
violation of this section shall be fined
under this title or imprisoned not more
than twenty years, or both.
(b) As used in this section—
(1) The term “robbery” means the
unlawful taking or obtaining of
personal property from the person or
in the presence of another, against his
will, by means of actual or threatened
force, or violence, or fear of injury,
immediate or future, to his person or
property, or property in his custody or
possession, or the person or property
of a relative or member of his family
or of anyone in his company at the
time of the taking or obtaining.
Dominguez’s first § 924(c) charge, Count Three of the
indictment, charged him with possessing a firearm in
furtherance of the 2011 Hobbs Act robbery and/or of
conspiracy to commit Hobbs Act robbery. Dominguez’s
second § 924(c) charge, Count Ten, charged him with
possessing a firearm in furtherance of the 2012 attempted
Hobbs Act robbery and/or of conspiracy to commit Hobbs
Act robbery.
16 UNITED STATES V. DOMINGUEZ
A. Hobbs Act Robbery (18 U.S.C. § 1951) is a
“Crime of Violence”
We previously held in Mendez that Hobbs Act robbery is
a crime of violence under the elements clause. Mendez, 992
F.2d at 1491 (holding that robbery, as defined in 18 U.S.C.
§ 1951(b)(1), “indisputably qualifies as a crime of violence,”
and noting that it contained an “element of ‘actual or
threatened force, or violence’”); see also United States v.
Howard, 650 F. App’x 466, 468 (9th Cir. June 24, 2016)
(unpublished memorandum).
We are in unanimous company. All of our sister circuits
have considered this question too, and have held that Hobbs
Act robbery is a crime of violence under the elements clause.
See United States v. Mathis, 932 F.3d 242, 266 (4th Cir.
2019); United States v. Jones, 919 F.3d 1064, 1072 (8th Cir.
2019); United States v. Garcia-Ortiz, 904 F.3d 102, 106–09
(1st Cir. 2018); United States v. Melgar-Cabrera, 892 F.3d
1053, 1060–66 (10th Cir. 2018); United States v. Hill,
890 F.3d 51, 60 (2d Cir. 2018); United States v. Fox,
878 F.3d 574, 579 (7th Cir. 2017); United States v. Gooch,
850 F.3d 285, 292 (6th Cir. 2017); United States v. Buck,
847 F.3d 267, 275 (5th Cir. 2017); In re St. Fleur, 824 F.3d
1337, 1340–41 (11th Cir. 2016). See also, e.g., United States
v. Robinson, 844 F.3d 137, 141–44 (3d Cir. 2016). 5
Dominguez nonetheless argues that Hobbs Act robbery
is not a crime of violence under the elements clause because,
he says, it may be committed “by placing a victim in fear of
injury to some intangible economic interest.” Such “threats,”
5
The Third Circuit does not apply the categorical approach in this
context, but it has held that specific Hobbs Act robbery convictions
qualify as crimes of violence under the elements clause.
UNITED STATES V. DOMINGUEZ 17
he argues, would not require any use, attempted use, or
threatened use of violent physical force.
Fear of injury is the least serious way to violate 18 U.S.C.
§ 1951, and therefore, the species of the crime that we should
employ for our categorical analysis. But even Hobbs Act
robbery committed by placing a victim in fear of bodily
injury is categorically a crime of violence under the elements
clause, because it “requires at least an implicit threat to use
the type of violent physical force necessary to meet the
Johnson standard.” United States v. Guiterrez, 876 F.3d
1254, 1257 (9th Cir. 2017) (“A defendant cannot put a
reasonable person in fear of bodily harm without threatening
to use ‘force capable of causing physical pain or injury.’”
(citation omitted)); cf. United States v. Selfa, 918 F.2d 749,
751 (9th Cir. 1990) (holding that analogous federal bank
robbery statute, which may be violated by “intimidation,”
qualifies as crime of violence under sentencing guidelines).
We need not analyze whether the same would be true if
the target were “intangible economic interests,” because
Dominguez fails to point to any realistic scenario in which a
robber could commit Hobbs Act robbery by placing his
victim in fear of injury to an intangible economic interest.
Cf. Gonzales v. Duenas- Alvarez, 549 U.S. 183, 193 (2007)
(explaining that, under the categorical approach, there must
be a “realistic possibility” that a state would apply a state
statute to conduct that falls outside the generic definition of
a federal crime); Garcia-Ortiz, 904 F.3d at 107−08.
Dominguez’s reliance on cases analyzing Hobbs Act
extortion, or jury instructions generally describing how the
statute may be violated, do not “point to . . . cases in
which . . . . courts in fact did apply the statute in the special
(nongeneric) manner for which he argues.” Duenas-Alvarez,
549 U.S. at 193.
18 UNITED STATES V. DOMINGUEZ
In Mathis, the Fourth Circuit rejected this precise
argument:
We also observe that both Section 924(c) and
Hobbs Act robbery reference the use of force
or threatened use of force against “property”
generally, without further defining the term
“property.” . . . . And neither provision draws
any distinction between tangible and
intangible property. Thus, we do not discern
any basis in the text of either statutory
provision for creating a distinction between
threats of injury to tangible and intangible
property for the purposes of defining a crime
of violence.
Mathis, 932 F.3d at 266. We agree with and adopt this
reasoning.
Dominguez further argues that Hobbs Act robbery can
somehow be “predicated on gross negligence or reckless
conduct,” and so lacks the necessary mens rea to qualify as
a crime of violence. Dominguez is wrong. We have
previously held that “criminal intent—acting ‘knowingly or
willingly’—is an implied and necessary element that the
government must prove for a Hobbs Act conviction.” United
States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir. 1999)
(citation omitted).
We reaffirm that Hobbs Act robbery is a crime of
violence under 18 U.S.C. § 924(c)(3)(A), and we affirm
Dominguez’s conviction on Count Three.
UNITED STATES V. DOMINGUEZ 19
B. Attempted Hobbs Act Robbery is a “Crime of
Violence”
Because completed Hobbs Act robbery is a crime of
violence under § 924, attempted Hobbs Act robbery is also a
crime of violence. In so holding, we agree with the Seventh
and Eleventh Circuits that, when a substantive offense would
be a crime of violence under 18 U.S.C. § 924(c)(3)(A), an
attempt to commit that offense is also a crime of violence.
There is no circuit court decision to the contrary. United
States v. Ingram, 947 F.3d 1021, 1025–26 (7th Cir. 2020)
(attempted Hobbs Act robbery is a crime of violence under
18 U.S.C. § 924(c)); United States v. St. Hubert, 909 F.3d
335, 351–53 (11th Cir. 2018), petition for cert. filed, (U.S.
July 18, 2019) (No. 19-5267) (analyzing attempted Hobbs
Act robbery); Hill v. United States, 877 F.3d 717, 719 (7th
Cir. 2017), cert. denied, 139 S.Ct. 352 (2018) (analyzing
Illinois attempted murder; holding that “[w]hen a
substantive offense would be a violent felony under § 924(e)
and similar statutes, an attempt to commit that offense is also
a violent felony.”) 6; cf. United States v. D.D.B., 903 F.3d
684, 689–93 (7th Cir. 2018) (declining to apply Hill rule
where state law did not require proof of intent for attempt
conviction).
The reasons for this are straightforward. 18 U.S.C.
§ 924(c)(3)(A) explicitly includes as crimes of violence
offenses that have as an element the “attempted use” or
“threatened use” of force. In order to be guilty of attempt, a
6
The Seventh Circuit analyzed whether attempted murder, in
violation of Illinois law, was a violent felony under the Armed Career
Criminal Act. We have held that the operative language of 18 U.S.C.
§ 924(e)(2)(B)(i) is identical to the portion of the elements clause at issue
in this case. See United States v. Fultz, 923 F.3d 1192, 1194 n. 1 (9th
Cir. 2019).
20 UNITED STATES V. DOMINGUEZ
defendant must intend to commit every element of the
completed crime. See, e.g., Nelson, 66 F.3d at 1042 (attempt
conviction requires evidence that defendant intended to
violate the statute). An attempt to commit a crime should
therefore be treated as an attempt to commit every element
of that crime. Hill, 877 F.3d at 719. “When the intent
element of the attempt offense includes intent to commit
violence against the person of another, . . . . it makes sense
to say that the attempt crime itself includes violence as an
element.” Hill, 877 F.3d at 719.
Not so, argues Dominguez, because the “substantial
step” required for an attempt conviction need not be itself
violent. Since the elements of attempt are only an intent to
commit the crime, along with a substantial step, Dominguez
argues that attempt crimes contain no “element” of force.
This argument would have us ignore his specific intention to
commit a violent crime, as well as common sense. A
criminal who specifically intends to use violence, and then
takes a substantial step toward that use, has, by definition,
attempted a violent crime, albeit an uncompleted one.
Moreover, adopting Dominguez’s approach in this case
would be plainly inconsistent with our prior determination
that “[t]he ‘attempt’ portion of [a] conviction does not alter
our determination that the conviction is a crime of violence.
We have ‘generally found attempts to commit crimes of
violence, enumerated or not, to be themselves crimes of
violence.’” Arellano Hernandez v. Lynch, 831 F.3d 1127,
1132 (9th Cir. 2016) (quoting United States v. Riley,
183 F.3d 1155, 1160 (9th Cir. 1999) (citing cf. 8 U.S.C.
§ 1101(a)(43)(U) (providing that an aggravated felony
includes the attempt to commit the offense)).
UNITED STATES V. DOMINGUEZ 21
We hold that attempted Hobbs Act robbery is a crime of
violence under 18 U.S.C. § 924(c)(3)(A). We affirm
Dominguez’s conviction on Count Ten.
C. Conspiracy to Commit Hobbs Act Robbery
We do not reach whether Conspiracy to Commit Hobbs
Act robbery is also a crime of violence under 18 U.S.C.
§ 924(c)(1)(A) because we have determined that each of
Dominguez’s § 924(c) convictions is supported by a
predicate crime of violence—completed and attempted
Hobbs Act robbery, respectively. 7
VI. Conclusion
Dominguez’s conviction of money laundering in Count
Four is REVERSED. The remainder of the judgment is
AFFIRMED.
7
In answer to a judge’s question at oral argument, government
counsel took the position that the mens rea required for attempted crimes
and for conspiracy is identical. Two days later, counsel filed a 28j letter
“to clarify” that the intent required for attempts and conspiracy is not the
same. We acknowledge the good faith of counsel’s original answer and
are thankful for the clarification. Although we look to the parties for
help in determining the controlling law, we are not bound by the parties’
analyses, stipulations, or purported concessions. The law, as the saying
goes, is what it is.
22 UNITED STATES V. DOMINGUEZ
NGUYEN, Circuit Judge, concurring in part and dissenting
in part:
A Hobbs Act robbery is a crime of violence under
18 U.S.C. § 924(c)(3)(A)—the “elements” clause—because
it’s a felony that “has as an element the use, attempted use,
or threatened use of physical force against the person or
property of another.” But the same isn’t true for an
attempted Hobbs Act robbery.
The categorical approach requires us to focus on the
“least serious form” of criminal conduct necessary for a
conviction. United States v. Gobert, 943 F.3d 878, 881 (9th
Cir. 2019). Only “[i]f the least of the acts criminalized by [a
given crime] would be a crime of violence under
§ 924(c)(3)(A) . . . is [the crime] categorically a crime of
violence under the elements clause.” United States v. Fultz,
923 F.3d 1192, 1194–95 (9th Cir. 2019). Here, as the
majority acknowledges, an attempted Hobbs Act robbery
can be committed without any actual use, attempted use, or
threatened use of physical force. Maj. Op. 6. Therefore, it
plainly does not fit the definition of a crime of violence under
the elements clause. Yet in a leap of logic, the majority
nevertheless holds that “when a substantive offense is a
crime of violence under 18 U.S.C. § 924(c)(3)(A), an
attempt to commit that offense is also a crime of violence.”
Id. at 6.
I respectfully dissent from Part V.B of the majority
opinion.
UNITED STATES V. DOMINGUEZ 23
I.
A.
To determine “whether a particular conviction satisfies
the specified elements of a sentence-enhancement
provision,” we apply the categorical approach. United States
v. Piccolo, 441 F.3d 1084, 1086 (9th Cir. 2006). We “do not
examine the facts underlying the prior offense, but look only
to the fact of conviction and the statutory definition of the
prior offense.” Id. (quoting United States v. Corona-
Sanchez, 291 F.3d 1201, 1203 (9th Cir. 2002) (en banc)).
“The defendant’s crime cannot categorically be a ‘crime of
violence’ if the statute of conviction punishes any conduct
not encompassed by the statutory definition of a ‘crime of
violence.’” United States v. Benally, 843 F.3d 350, 352 (9th
Cir. 2016) (citing Descamps v. United States, 570 U.S. 254,
257 (2013)). Thus, a crime is categorically a crime of
violence only “[i]f the least of the acts criminalized by [that
crime] would be a crime of violence under § 924(c)(3)(A).”
Fultz, 923 F.3d at 1194–95.
Here, Monico Dominguez was convicted in Count Ten
of violating 18 U.S.C. § 924(c), possessing a firearm in
furtherance of a crime of violence, namely, an attempted
Hobbs Act robbery as charged in Count Nine. A “crime of
violence” is defined as a felony that “has as an element the
use, attempted use, or threatened use of physical force
against the person or property of another.” 1 18 U.S.C.
§ 924(c)(3)(A).
1
The degree of “physical force” must be “violent,” defined as “force
capable of causing physical pain or injury.’” United States v. Watson,
881 F.3d 782, 784 (9th Cir. 2018) (quoting Johnson v. United States,
24 UNITED STATES V. DOMINGUEZ
Attempted Hobbs Act robbery has two elements:
(1) intending to commit a Hobbs Act robbery; and (2) taking
a substantial step toward completing that crime. United
States v. Soto-Barraza, 947 F.3d 1111, 1120 (9th Cir. 2020).
Attempted Hobbs Act robbery is not a crime of violence
because a substantial step toward completing a Hobbs Act
robbery need not involve the use, attempted use, or
threatened use of physical force. Compare three examples:
1. A man stops an armored vehicle and
shoots and injures the driver. But the
driver escapes with the money.
2. A man intercepts an armored vehicle by
standing in front of it with his gun pointed
at the driver. He pulls the trigger,
intending to strike and injure the driver,
but the gun jams. The driver escapes with
the money.
3. A man plans a robbery, buys the
necessary gear, and drives toward the
target, but returns home after seeing
police in the vicinity.
Each scenario describes an attempted Hobbs Act
robbery. In (1), the man uses physical force. In (2), the man
attempts to use physical force. In (3), the man does not use,
attempt to use, or threaten to use physical force, even though
he intended to commit a robbery and took a substantial step
559 U.S. 133, 140 (2010)). “Physical” force is “[f]orce consisting in a
physical act”—as distinguished from “intellectual force or emotional
force.” Johnson, 559 U.S. at 138–39.
UNITED STATES V. DOMINGUEZ 25
toward committing it. 2 This last scenario—a possible “least
serious form” of attempted Hobbs Act robbery—shows that
an attempted Hobbs Act robbery does not qualify as a crime
of violence under the elements clause.
B.
Nowhere in its opinion does the majority apply the
categorical approach to attempted Hobbs Act robbery.
Rather, the majority’s bare-bones analysis consists of several
correct-but-irrelevant statements intermixed with illogical
conclusions. The majority begins by pointing out that
§ 924(c)(3)(A), the elements clause, “includes as crimes of
violence offenses that have as an element the ‘attempted use’
or ‘threatened use’ of force.” Maj. Op. 19. This is
definitionally correct. The majority then notes that, “[i]n
order to be guilty of attempt, a defendant must intend to
commit every element of the completed crime.” Id. at 19–
20. Again, a correct statement of law. But the majority then
veers off track by concluding that “[a]n attempt to commit a
crime should therefore be treated as an attempt to commit
every element of that crime.” Id. at 20. That conclusion
doesn’t follow as a matter of law or logic. There’s no legal
basis to conclude from an attempt conviction that the
defendant attempted to commit every element of the
underlying crime. And there’s a logical gap: the majority
conflates attempt and intent. Only by substituting
2
We have already held that similarly aborted non-violent conduct
constituted a substantial step toward committing robbery. See United
States v. Moore, 921 F.2d 207, 209 (9th Cir. 1990) (affirming conviction
for attempted bank robbery where defendant “was walking toward the
bank, wearing a ski mask, and carrying gloves, pillowcases, and a
concealed, loaded gun”).
26 UNITED STATES V. DOMINGUEZ
“intended” for “attempted” does the majority’s analysis
make sense.
Perhaps the majority’s disconnect stems from
§ 924(c)(3)(A)’s use of the word “attempted.” At a glance,
the “attempted use . . . of physical force” might appear to be
synonymous with the intended use of physical force. Under
this reading, all crimes in which a defendant intends to use
physical force would qualify as crimes of violence. But that
isn’t what § 924(c)(3)(A) plainly says or means. An
“attempted use . . . of physical force” under § 924(c)(3)(A)
refers to a defendant’s physical act of trying (but
failing) to use violent physical force. Attempted, Merriam-
Webster Dictionary, https://www.merriam-webster.com/
dictionary/attempted (defining “attempted” as “having been
tried without success”). Further, the other two qualifying
elements—using and threatening to use physical force—
obviously refer to acts. See Weyer v. Twentieth Century Fox
Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000) (explaining,
under the principle of noscitur a sociis, that terms must “be
interpreted within the context of the accompanying words”).
Even the majority recognizes, in its completed Hobbs Act
robbery analysis, that the categorical approach requires us to
compare the range of acts that the Hobbs Act criminalizes
with the acts that render a crime violent under
§ 924(c)(3)(A). See Maj. Op. 17 (explaining that “[f]ear of
injury is the least serious way to violate 18 U.S.C. § 1951,
and therefore, the species of the crime that we should employ
for our categorical analysis”).
The majority then leaps to the conclusion that “[w]hen
the intent element of the attempt offense includes intent to
commit violence against the person of another, . . . it makes
sense to say that the attempt crime itself includes violence as
an element.” Id. at 20. But that’s not a correct statement of
UNITED STATES V. DOMINGUEZ 27
the law: attempted Hobbs Act robbery does not in fact
“include[] violence as an element.” Id. at 20. As the
majority concedes elsewhere in its opinion, attempted Hobbs
Act robbery can be completed without any threatened use or
attempted use of force. Id. at 6. The majority’s analysis
therefore impermissibly bootstraps a defendant’s intent to
commit a violent crime into categorizing all attempts of
crimes of violence as violent crimes themselves. And it casts
aside the categorical approach, which requires us to compare
the acts proscribed by an underlying crime to the violent acts
enumerated in § 924(c)(3)(A). See Fultz, 923 F.3d at 1194
(framing the inquiry as “whether the [enhancement]
conviction could stand if it rested upon the ‘least of the acts
criminalized’” (citation omitted)); Benally, 843 F.3d at 352
(explaining that a crime can’t be a crime of violence if it
“punishes any conduct not encompassed by the statutory
definition” of a crime of violence).
The majority declares that a contrary analysis “would
have us ignore [Dominguez’s] specific intention to commit
a violent crime.” Maj. Op. 20. True, Dominguez’s attempt
conviction means that he specifically intended to commit a
violent crime. But that’s not relevant under the categorical
approach. A crime of violence is one that “has as an element
the use, attempted use, or threatened use of physical force
against the person or property of another.” 18 U.S.C.
§ 924(c)(3)(A). Nowhere in this definition is there an
element of “intent to commit a violent crime.”
And it’s also irrelevant that “[a] criminal who
specifically intends to use violence, and then takes a
substantial step toward that use, has, by definition, attempted
a violent crime, albeit an uncompleted one.” Maj. Op. 20.
The question is not whether a defendant attempts a violent
28 UNITED STATES V. DOMINGUEZ
crime but whether the crime of attempt itself qualifies as a
crime of violence.
The majority doesn’t address whether conspiracy to
commit Hobbs Act robbery also is a crime of violence. Had
it done so, it would’ve faced a dilemma: the government
concedes that conspiracy to commit Hobbs Act robbery is
not a crime of violence, 3 but the intent requirement for
conspiracy is the same as for attempt. United States v.
Espinoza-Valdez, 889 F.3d 654, 656 (9th Cir. 2018) (holding
that the elements of a conspiracy are “(1) an agreement to
accomplish an illegal objective, and (2) the intent to commit
the underlying offense” (emphasis added) (citation
omitted)). If conspiracy and attempt have the same intent
requirement, how, under the majority’s approach, could the
result be different? The majority doesn’t say. 4
C.
I recognize that the Seventh and Eleventh Circuits have
held that attempted Hobbs Act robbery is a crime of violence
3
The government is correct. Conspiracy to commit Hobbs Act
robbery requires that: “(1) two or more people agreed to commit a
robbery . . . ; (2) the defendant had knowledge of the conspiratorial goal;
and (3) the defendant voluntarily participated in trying to accomplish the
conspiratorial goal.” United States v. Si, 343 F.3d 1116, 1123–24 (9th
Cir. 2003). Merely agreeing to participate in a robbery is obviously less
likely to involve the use, attempted use, or threatened use of physical
force than a substantial step toward committing the robbery. See United
States v. Simms, 914 F.3d 229, 233–34 (4th Cir. 2019).
4
The majority suggests that Arellano Hernandez v. Lynch, 831 F.3d
1127, 1132 (9th Cir. 2016), and United States v. Riley, 183 F.3d 1155,
1160 (9th Cir. 1999), stand in the way of my analysis. But nothing in
those cases binds us here, especially given that they describe only a
“general[]” approach. Riley, 183 F.3d at 1160.
UNITED STATES V. DOMINGUEZ 29
under the elements clause. Unfortunately, their opinions
suffer from the same flaws as the majority’s.
In United States v. Ingram, 947 F.3d 1021 (7th Cir.
2020), the Seventh Circuit, like the majority here, failed to
apply the categorical analysis. The court relied heavily on
its conclusion in a prior case, Hill v. United States, that
“‘[w]hen a substantive offense would be a violent felony
under § 924(e) and similar statutes, an attempt to commit
that offense also is a violent felony’ so long as the attempt
offense ‘requires proof of intent to commit all elements of
the completed crime.’” Id. at 1026 (quoting Hill v. United
States, 877 F.3d 717, 719 (7th Cir. 2017)). From there, the
court reasoned that because the elements clauses of
“§ 924(e) and § 924(c) use almost identical language,” Hill’s
ruling should be extended to § 924(c). Id.
Like the majority, the Seventh Circuit viewed the
“attempt[]” in § 924(c)(3)(A) as a stand-in for intent. That
analysis not only misinterpreted the statute but also flouted
the categorical approach. By focusing only on a defendant’s
intent while attempting Hobbs Act robbery, the court failed
to consider the “least serious form” of attempted Hobbs Act
robbery.
The Eleventh Circuit took an overlapping but distinct
approach. See United States v. St. Hubert, 909 F.3d 335,
351–53 (11th Cir. 2018). It explained that “attempted Hobbs
Act robbery qualifies as a crime of violence under
§ 924(c)(3)(A)’s use-of-force clause because that clause
expressly includes ‘attempted use’ of force.” Id. at 351
(emphasis in original). The implication is that
§ 924(c)(3)(A)’s use of “attempted” means that attempts are
crimes of violence. But this wrongly equates the “attempted
use . . . of physical force” language from § 924(c)(3)(A) with
the crime of “attempt[ed]” Hobbs Act robbery from
30 UNITED STATES V. DOMINGUEZ
§ 1951(a). It would be nonsensical for § 924(c)(3)(A) to
refer to the crime of attempt as an element of a crime of
violence.
The Eleventh Circuit also observed that § 924(c)(3)(A)
“equates the use of force with attempted force, and thus the
text . . . makes clear that actual force need not be used for a
crime to qualify” as a violent crime. Id. at 352. True, but
that’s beside the point; a crime of violence must have as an
element the attempted use of physical force, which is entirely
different from one’s intent to use physical force.
Like the majority, the Eleventh Circuit did “recognize”
that a substantial step toward Hobbs Act robbery need not
involve a violent act. Id. at 352–53 (imagining “a robber
could plan the robbery and travel with a gun to the location
of the robbery but be caught before entering the store”). It
dismissed the relevance of the scenario, reasoning that “the
robber has attempted to use actual or threatened force
because he has attempted to commit a crime that would be
violent if completed.” Id. at 353. That’s simply wrong. The
robber would have attempted to commit a violent crime
because he intended to use force and he took a substantial
step toward committing a robbery—not because he
attempted to use physical force.
As Judge Pryor persuasively explained in a dissent from
denial of rehearing en banc, “[i]ntending to commit each
element of a crime involving the use of force simply is not
the same as attempting to commit each element of that crime.
By the alchemy of transmuting intent to commit each
element into attempt to commit each element, the panel
conjured the conclusion that anyone convicted of an attempt
to commit a crime involving force must have been found
beyond a reasonable doubt to have attempted to use force.”
United States v. St. Hubert, 918 F.3d 1174, 1212 (11th Cir.
UNITED STATES V. DOMINGUEZ 31
2019) (Pryor, J., dissenting from denial of rehearing en
banc). And she noted that the court’s own example proved
that “an individual’s conduct may satisfy all the elements of
an attempt to commit an elements-clause offense without
anything more than intent to use elements-clause force and
some act (in furtherance of the intended offense) that does
not involve the use, attempted use, or threatened use of such
force.” Id.No other circuit has tackled this issue. But the Fourth
Circuit’s holding that conspiracy to commit Hobbs Act
robbery is not a crime of violence is relevant. See Simms,
914 F.3d at 233–34. The court explained that, in order to
“convict a defendant of [conspiracy to commit Hobbs Act
robbery], the Government must prove only that the
defendant agreed with another to commit actions that, if
realized, would violate the Hobbs Act.” Id. “Such an
agreement,” reasoned the court, “does not invariably require
the actual, attempted, or threatened use of physical force.”
Id. at 234. This reasoning applies with equal force to the
crime of attempted Hobbs Act robbery. Comparing the act
element of an attempt—a substantial step—with the
qualifying act elements of a crime of violence leads to only
one conclusion. Attempted Hobbs Act robbery does not
qualify as a crime of violence.
II.
Whatever intuitive appeal the majority’s position may
have, the categorical approach compels the conclusion that
attempted Hobbs Act robbery does not qualify as a crime of
violence under § 924(c)(3)(A). I therefore dissent from the
majority’s holding that attempted Hobbs Act robbery is a
crime of violence, and I would reverse the conviction on
Count Ten. I otherwise join in the majority opinion.