16-1050-cr
United States v. Jones

                              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
23rd day of March, two thousand twenty.

Present:         ROSEMARY S. POOLER,
                 GERARD E. LYNCH,
                      Circuit Judges,
                 PAUL A. ENGELMAYER,
                              Judge.1

_____________________________________________________

UNITED STATES OF AMERICA,

                                Appellee,

                         v.                                                16-1050-cr

BRIAN JONES,

                        Defendant-Appellant.
_____________________________________________________

Appearing for Appellant:        Jeremy Gordon, Mansfield, TX.

Appearing for Appellee:         Susan Corkery, Nicholas J. Moscow, Assistant United States
                                Attorneys, for Richard P. Donoghue, United States Attorney for
                                the Eastern District of New York, Brooklyn, N.Y.

1
  Judge Paul A. Engelmayer, United States District Court for the Southern District of New York,
sitting by designation.
Appeal from the United States District Court for the Eastern District of New York (Bianco, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is VACATED.

         Appellant Brian Jones appeals from the March 23, 2016 judgment of the United States
District Court for the Eastern District of New York (Bianco, J.), convicting him, after a jury trial,
of conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951(a) and brandishing
a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The district
court sentenced Jones principally to 132 months of imprisonment. We assume the parties’
familiarity with the underlying facts, procedural history, and issues on appeal.

        On appeal, Jones argues that his conviction of Hobbs Act robbery conspiracy is not a
crime of violence under 18 U.S.C. § 924(c). Jones claims that Hobbs Act robbery conspiracy
does not require the use of force such that it meets the definition of “crime of violence” under the
elements clause of Section 924(c)(3)(A). He further argues that Section 924(c)(3)(B), the
definition’s residual clause, is unconstitutional.

       Based on recent precedent from our Court and the Supreme Court, we agree. The
Supreme Court in United States v. Davis, 139 S. Ct. 2319 (2019), held that Section 924(c)(3)(B)
is unconstitutionally vague. And following the Supreme Court’s decision in Davis, this Circuit
concluded that Hobbs Act robbery conspiracy does not qualify as a Section 924(c) crime of
violence. United States v. Barrett, 937 F.3d 126, 127 (2d Cir. 2019). In light of these decisions,
Jones’s conviction under 18 U.S.C. § 924(c)(1)(A)(ii) must be vacated.

    Accordingly, the judgment of the district court hereby is VACATED and this matter is
REMANDED for further proceedings consistent with this order.


                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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