18-2703 Hidalgo v. United States

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 17th day of May, two thousand twenty-one.

PRESENT: ROBERT A. KATZMANN, GERARD E. LYNCH, WILLIAM J. NARDINI, Circuit Judges. _____________________________________

EFRAIN HIDALGO,

Petitioner-Appellant,

v. No. 18-2703

UNITED STATES OF AMERICA,

Respondent-Appellee. _____________________________________

FOR PETITIONER-APPELLANT: Robin Christine Smith (Leean Othman, on the brief), Law Office of Robin C. Smith, Esq., P.C., San Rafael, CA FOR RESPONDENT-APPELLEE: Katherine A. Gregory, Assistant United States Attorney, for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Buffalo, NY

On appeal from the United States District Court for the Western District of New

York (Richard J. Arcara, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

Petitioner-Appellant Efrain Hidalgo appeals from an order of the district court,

entered August 8, 2018, denying his motion for relief under

. Hidalgo

argues that his firearm conviction under

is invalid because it was not

based on a valid “crime of violence” in light of United States v. Davis,

(2019),

and United States v. Barrett,

(2d Cir. 2019). We assume the reader’s

familiarity with the record.

We review de novo a district court’s denial of a

motion. See

McCloud v. United States,

(2d Cir. 2021). As relevant here,

(c) provides enhanced penalties for anyone who “uses or carries a firearm” in

connection with a “crime of violence.”

§ 924(c)(1)(A). The statute defines a “crime

of violence” as a felony that either “(A) has as an element the use, attempted use, or

threatened use of physical force against the person or property of another” (the “elements 2 clause”), or “(B) . . . by its nature involves, a substantial risk that physical force against

the person or property of another may be used in the course of committing the offense”

(the “residual clause”). Id. § 924(c)(3)(A)-(B). In Davis, the Supreme Court held that

the residual clause was unconstitutionally vague. See

. It did not

disturb the elements clause. In Barrett, this Court found that Hobbs Act robbery

conspiracy is not categorically a crime of violence in light of Davis. See Barrett,

.

The record makes it abundantly clear that the predicate crimes underlying

Hidalgo’s § 924(c) conviction include attempted Hobbs Act robbery. Hidalgo claims

that only Hobbs Act robbery conspiracy—not attempted Hobbs Act robbery—underlies

his conviction. In support, he points to a single sentence in the transcript of his plea

hearing in which the Government characterized the conduct underlying Hidalgo’s

§ 924(c) charge as the discharge of “a firearm during a conspiracy in attempt to forcibly

steal property and extort assets from” two persons. Appellant’s App’x 41 (emphasis

added). Even assuming the word “in” rather than “and” in the transcript is not just a

typographical error, the entirety of the record—including the rest of the transcript—

shows that Hidalgo knowingly acknowledged the use of a firearm “during a robbery

attempt.” Id. at 41.

3 Hidalgo also claims that attempted Hobbs Act robbery does not qualify as a crime

of violence. But this argument is foreclosed by our recent decision in United States v.

McCoy that “an attempt to commit Hobbs Act robbery . . . categorically qualifies as a

crime of violence.”

(2d Cir. 2021) (internal quotation marks and

alteration omitted).

We have considered all of Hidalgo’s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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