Still an Open Question Whether Attempted Hobbs Act Robbery Is a Crime of Violence

In United States v. Clancy, the Sixth Circuit addressed only one of the two questions Mr. Clancy raised on appeal. The other circuits are split on the second question, and we'll have to wait to find out the Sixth Circuit's view.

First, the question the court did resolve: when Lamar Clancy tried to rob a store at gunpoint, the store manager and an employee grabbed their guns and shot. One bullet hit Mr. Clancy in the arm. His colleagues took him to the hospital, where staff took off his bloody clothes and left them on the trauma room floor.

Police officers went to the store, where employees described the suspects and what they were wearing. A short time later, they learned that the hospital had admitted a shooting victim, and two officers headed there. When they walked in, they saw Mr. Clancy in the trauma room and clothes, matching a description they'd heard at the store, lying on the floor. After staff airlifted Mr. Clancy to another hospital, crime-scene investigators retrieved his bagged clothes from the trauma room.

Mr. Clancy moved to suppress the clothes, and the district court denied the motion. The Sixth Circuit affirmed. The court held that, while officers were lawfully in the hospital, they saw the clothes in plain view, and they matched what one of the robbery suspects was wearing. Seeing and seizing the clothes from the hospital room thus didn't violate the Fourth Amendment.

Second, the question left open: the jury convicted Mr. Clancy of attempted Hobbs Act robbery and of using a firearm in relation to a crime of violence under 18 U.S.C. § 924(c). On appeal, he argued that, unlike a completed Hobbs Act robbery, attempted Hobbs Act robbery is not a crime of violence. Other courts of appeals have given different answers to that question. Compare United States v. St. Hubert, 909 F.3d 335 (11th Cir. 2018) (attempted Hobbs Act robbery is a crime of violence) with United States v. Taylor, No. 19-7616, 2020 WL 6053317 (4th Cir. Oct. 14, 2020) (attempted Hobbs Act robbery is not a crime of violence).

For Mr. Clancy, though, that split of authority was fatal to his argument on appeal. He did not object at trial, so the court reviewed the issue only for plain error. And because the courts of appeals are split, even if there were error, it was not plain. We'll find out the Sixth Circuit's view on this question one day, but not yet.