United States v. Devonta Doyle ( 2022 )

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4808
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEVONTA DOYLE, a/k/a Vontay,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Raymond A. Jackson, Senior District Judge. (2:18-cr-00177-RAJ-LRL-1)
Submitted: July 21, 2022 Decided: July 25, 2022
Before MOTZ, HARRIS, and RUSHING, Circuit Judges.
Vacated and remanded in part, affirmed in part by unpublished per curiam opinion.
ON BRIEF: Cary S. Greenberg, GREENBERG COSTLE, PC, Tysons Corner, Virginia,
for Appellant. Raj Parekh, Acting United States Attorney, Jacqueline R. Bechara, Assistant
United States Attorney, Alexandria Virginia, Kristin G. Bird, Special Assistant United
States Attorney, Andrew Bosse, Assistant United States Attorney, John F. Butler, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Devonta Doyle appeals his convictions and the 212-month sentence imposed for
conspiracy to interfere with commerce by means of robbery, in violation of 18 U.S.C.
§ 1951(a); Hobbs Act robbery and attempted Hobbs Act robbery, in violation of 18 U.S.C.
§§ 2, 1951(a); brandishing a firearm during a Hobbs Act robbery, in violation of 18 U.S.C.
§§ 2, 924(c)(1)(A)(ii); and discharging and brandishing a firearm during an attempted
Hobbs Act robbery, in violation of 18 U.S.C. §§ 2, 924(c)(1)(A)(iii) (“Count 7”). Doyle
asserts that his § 924(c) conviction for the conduct charged in Count 7 must be vacated
under United States v. Taylor, 979 F.3d 203 (4th Cir. 2020). Doyle also argues that his
convictions for the Hobbs Act robbery offenses must be vacated because the Hobbs Act
(1) cannot be interpreted to create a federal crime over the local robbery of a retail grocery
store; and (2) is unconstitutional as applied to such a robbery. We vacate the criminal
judgment in part, and affirm in part.
We agree with Doyle that his conviction on Count 7 is no longer valid. Under
federal law, a person who uses or carries a firearm “during and in relation to any crime of
violence” or who “possesses a firearm” “in furtherance of any such crime” may be
convicted of both the underlying “crime of violence” and the additional crime of utilizing
a firearm in connection with a “crime of violence.” 18 U.S.C. § 924(c)(1)(A). Section
924(c)(3) defines “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
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(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.
18 U.S.C. § 924(c)(3). “Courts typically refer to § 924(c)(3)(A) as the ‘force clause’ and
§ 924(c)(3)(B) as the ‘residual clause.’” United States v. Taylor, 979 F.3d 203, 206 (4th
Cir. 2020). In view of the Supreme Court’s invalidation of the residual clause as
unconstitutionally vague, see United States v. Davis, 139 S. Ct. 2319, 2336 (2019), Doyle’s
§ 924(c) conviction may stand only if attempted Hobbs Act robbery constitutes a “crime
of violence” under the force clause.
As we concluded in Taylor, attempted Hobbs Act robbery is not categorically a
crime of violence under § 924(c)’s force clause. 979 F.3d at 208-09 (holding that attempted
Hobbs Act robbery is no longer a “crime of violence” under § 924(c) because the defendant
may commit a substantial step by such nonviolent means as “passing a threatening note to
a store cashier” or “cas[ing] the store he intends to rob”). The Supreme Court recently
confirmed this holding. United States v. Taylor, __ U.S. __, 142 S. Ct. 2015 (2022). We
therefore vacate Doyle’s conviction on Count 7.
We nonetheless reject Doyle’s challenges to the validity and as-applied
constitutionality of the Hobbs Act. This court has expressly rejected nearly identical
contentions, albeit in an unpublished opinion after argument, and we do so again here. See
United States v. Singleton, 178 F. App’x 259, 261-64 (4th Cir. 2006) (No. 04-4677) (cited
favorably in United States v. Tillery, 702 F.3d 170, 173-75 (4th Cir. 2012)). Moreover, the
concessions Doyle made when he entered his guilty plea are sufficient to establish that
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Doyle’s conduct had at least a “minimal effect on interstate commerce,” which is all that
we require. United States v. Williams, 342 F.3d 350, 354-55 (4th Cir. 2003).
Accordingly, we vacate Doyle’s conviction on Count 7 and remand the matter for
resentencing. See Taylor, 979 F.3d at 210; see also United States v. Ventura, 864 F.3d 301,
309 (4th Cir. 2017) (holding that, under the sentencing package doctrine, “if some counts
[of a multicount criminal judgment] are vacated, the judge should be free to review the
efficacy of what remains in light of the original [sentencing] plan” (internal quotation
marks omitted)). We affirm the remainder of the criminal judgment. We dispense with
oral argument because the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the decisional process.
VACATED AND REMANDED IN PART,
AFFIRMED IN PART
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