United States District Court, D. New Mexico
CONVERSE FEDERAL PUBLIC DEFENDER ATTORNEY FOR MS. RUIZ
RAMIREZ ASSISTANT UNITED STATES ATTORNEY ATTORNEY FOR THE
MEMORANDUM OPINION AND ORDER
VÁZQUEZ UNITED STATES DISTRICT JUDGE
the Court is defendant Sara Ruiz's Motion to Dismiss
Count 3 for Failure to State an Offense or, in the
Alternative, to Cure Duplicitous Count. [Doc. 49]. Ms. Ruiz
argues that Count 3-use of a firearm in connection with
conspiracy to commit a Hobbs Act robbery- should be dismissed
because (1) the predicate offense, Hobbs Act robbery, is not
a “crime of violence” under § 924(c)(3)(A)
and, (2) the residual clause, § 924(c)(3)(B), is
unconstitutionally vague under Johnson v. United
States, __ U.S. __, 135 S.Ct. 2551 (2015) (Johnson
Court, having considered the motion, the parties'
arguments, the Indictment, and the relevant law, and
otherwise being fully advised, concludes that Hobbs Act
Robbery is a crime of violence under 18 U.S.C. §
924(c)(3)(A). Accordingly, Ms. Ruiz's Motion to Dismiss
charges in this case arise from the December 27, 2015, armed
robbery of a cashier at the Route 66 Casino Xpress in
Albuquerque. Defendant Lorenzo Chavez is alleged to have
committed the robbery and brandished a firearm, Defendant
James Montano, Jr., is alleged to have accompanied him into
the casino and acted as a lookout, and Ms. Ruiz is alleged to
have remained outside as the getaway driver.
Ruiz, along with the co-defendants, was charged with Count 1,
Conspiracy to Commit Hobbs Act Robbery in violation of 18
U.S.C. § 1951(a); Count 2, Hobbs Act Robbery in
violation of 18 U.S.C. §1951(a) and aiding and abetting
in violation of 18 U.S.C. § 2; and Count 3, brandishing
a firearm in furtherance of these crimes in violation of 18
U.S.C. § 924(c) and aiding and abetting in violation of
18 U.S.C. §2.
Chavez and Mr. Montano have entered guilty pleas in the case.
[Docs.75, 77]. Ms. Ruiz's trial is set for January 22,
Ruiz argues that Count 3 fails to state an offense because
Hobbs Act robbery, as proscribed by 18 U.S.C. § 1951(a),
is not a crime of violence under § 924(c)(3)(A) because
it can be accomplished by placing one in fear of future
injury to his person or property, and does not require the
intentional or threatened use of violent physical force.
Additionally, she contends that Hobbs Act robbery is not a
crime of violence under the “residual clause”
within § 924(c)(3)(B) because the clause is
unconstitutionally vague under Johnson II.
government asserts the Tenth Circuit has rejected the
argument that Hobbs Act robbery is not a predicate
“crime of violence” under § 924(c)(3)(A),
the so-called “force clause.” Further, although
the government contends Hobbs Act robbery is also a crime of
violence under § 924(c)(3)(B) (the “residual
clause”), it argues that the Court need not reach the
issue of whether, after Johnson II, the residual
clause is void for vagueness.
Hobbs Act Robbery is a Crime of Violence under 18 U.S.C.
Hobbs Act 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 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 ...