Attempted Robbery Is Not Violent?

The U.S. Supreme Court continued its chip-by-chip undermining of federal sentence enhancements for violent crimes, making one more narrowing of the definition of “violent felony.” In United States v. Taylor, No. 20-1459, it’s attempted robbery under the Hobbs Act that bites the dust. This will come as no surprise to those who have watched the steady parade of decisions excluding from the term “violent felony” crimes that common sense would tell us are violent. See, e.g., this post.

Justice Thomas dissents from this “30-year excursion into the absurd.”

Justin Eugene Taylor and an accomplice pulled a gun on a fellow drug dealer as they tried to rob him. During the attempted robbery, the victim was shot and killed. Taylor pleaded guilty to using a firearm during an attempted Hobbs Act robbery, which he conceded was a “crime of violence” under 18 U. S. C. §924(c)(3). Taylor made that concession because threatening to shoot someone during a robbery is undoubtedly a violent act. Yet, the Court holds that Taylor did not actually commit a “crime of violence” because a hypothetical defendant—the Court calls him “Adam”—could have been convicted of attempting to commit Hobbs Act robbery without using, attempting to use, or threatening to use physical force. Ante, at 5; see §924(c)(3)(A).

This holding exemplifies just how this Court’s “categorical approach” has led the Federal Judiciary on a “journey Through the Looking Glass,” during which we have found many “strange things.” L. Carroll, Alice in Wonderland and Through the Looking Glass 227 (J. Messner ed. 1982). Rather than continue this 30-year excursion into the absurd, I would hold Taylor accountable for what he actually did and uphold his conviction. Accordingly, I respectfully dissent.

Justice Alito agrees that “our cases involving §924(c)(3)(A)have veered off into fantasy land.”

There is better news on the habeas corpus front, though, which I will post on shortly.