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 28 U.S.C. § 2255. Hidalgo
argues that his firearm conviction under 18 U.S.C. § 924 is invalid because it was not
based on a valid “crime of violence” in light of United States v. Davis, 139 S. Ct. 2319 (2019),
and United States v. Barrett, 937 F.3d 126 (2d Cir. 2019). We assume the reader’s
familiarity with the record.
We review de novo a district court’s denial of a 28 U.S.C. § 2255 motion. See
McCloud v. United States, 987 F.3d 261, 264 (2d Cir. 2021). As relevant here, 18 U.S.C.
§ 924(c) provides enhanced penalties for anyone who “uses or carries a firearm” in
connection with a “crime of violence.” Id. § 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
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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 139 S. Ct. at 2336. 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, 937 F.3d
at 130.
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.
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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.” 995 F.3d 32, 55 (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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