16-3828-cr
United States of America v. Duartez
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 ASUMMARY ORDER@). A PARTY CITING TO 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 6th day of December, two thousand eighteen.
Present:
AMALYA L. KEARSE,
DEBRA ANN LIVINGSTON,
SUSAN L. CARNEY,
Circuit Judges.
___________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. 16-3828-cr
ARISTIDES DUARTEZ, JR., AKA Aristedes
Duartez, Jr.,
Defendant-Appellant.
___________________________________________
For Appellee: GRANT C. JAQUITH, United States Attorney for the
Northern District of New York (Rajit S. Dosanjh,
Assistant United States Attorney, on the brief),
Syracuse, NY.
For Defendant-Appellant: LISA A. PEEBLES, Federal Public Defender (James
P. Egan, Assistant Federal Public Defender, on the
brief), Syracuse, NY.
Appeal from an order of the United States District Court for the Northern District of New
York (McAvoy, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the order of the district court is AFFIRMED.
Defendant-Appellant Aristides Duartez, Jr. (“Duartez”) challenges his conviction and
sentence under 18 U.S.C. § 924(c) in the United States District Court for the Northern District of
New York (McAvoy, J.). On April 26, 2016, the district court denied Duartez’s motion to
dismiss the charge against him under that provision. On May 24, 2016, Duartez pled guilty to
that charge, along with one count of Hobbs Act robbery, 18 U.S.C. § 1951(a), while preserving
the right to appeal the district court’s prior order. On appeal, Duartez argues that his predicate
offense of Hobbs Act robbery does not qualify as a “crime of violence” as defined under
§ 924(c)(3)(A), and that the alternative definition of “crime of violence” under § 924(c)(3)(B) is
unconstitutionally void for vagueness. We assume the parties’ familiarity with the underlying
facts, the procedural history of the case, and the issues on appeal.
* * *
Section 924(c) imposes criminal penalties on “any person who, during and in relation to
any crime of violence . . ., uses or carries a firearm . . . .” 18 U.S.C. § 924(c)(1)(A). Subsection
(c)(3) then defines the term “crime of violence” as “an offense that is a felony” and:
(A) has as an element the use, attempted use, or threatened use of physical force
against the person or property of another, or
(B) that 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.
Id. § 924(c)(3). We refer to § 924(c)(3)(A) as the “force clause” and § 924(c)(3)(B) as the “risk-
of-force clause.” On appeal, Duartez challenges the district court’s refusal to dismiss the charge
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against him under § 924(c) by arguing that Hobbs Act robbery does not constitute a “crime of
violence” under either clause’s definition.
Duartez first argues that Hobbs Act robbery does not qualify as a “crime of violence” under
the “force clause.” That argument is squarely foreclosed by Second Circuit precedent holding
that Hobbs Act robbery does, in fact, categorically qualify as a “crime of violence” under the “force
clause” of § 924(c)(3)(A). See United States v. Hill, 890 F.3d 51, 60 (2d Cir. 2018). Because
Duartez’s conviction under § 924(c) may stand on that ground alone, we need not address his
second argument that the “risk-of-force clause” is unconstitutionally void for vagueness under
Sessions v. Dimaya, 138 S. Ct. 1204 (2018). Duartez’s predicate offense of Hobbs Act robbery
constitutes a “crime of violence” under § 924(c)(3)(A), so the district court properly denied his
motion to dismiss the charge against him under § 924(c).
* * *
For the above-stated reasons, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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