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United States v. Chavez

United States District Court, D. New Mexico

December 12, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
LORENZO CHAVEZ, SARA RUIZ, and JAMES MONTANO, JR., Defendants.

          KARI CONVERSE FEDERAL PUBLIC DEFENDER ATTORNEY FOR MS. RUIZ

          ELAINE RAMIREZ ASSISTANT UNITED STATES ATTORNEY ATTORNEY FOR THE UNITED STATES

          MEMORANDUM OPINION AND ORDER

          MARTHA VÁZQUEZ UNITED STATES DISTRICT JUDGE

         Before 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 II).[1]

         The 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 is denied.

         I. Background

         The 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.

         Ms. 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.

         Mr. Chavez and Mr. Montano have entered guilty pleas in the case. [Docs.75, 77]. Ms. Ruiz's trial is set for January 22, 2018.

         II. Discussion

         Ms. 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.

         The 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.

         A. Hobbs Act Robbery is a Crime of Violence under 18 U.S.C. § 924(c)(3)(A)

         The 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 ...

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