United States v. Monico Dominguez

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.