18-2091-cr United States v. Biba UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

## SUMMARY ORDER Rulings by summary order do not have precedential effect. Cita tion to a summary order filed on or after January 1, 2007, is permitted a nd 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 mu st cite either the Federal Appendix or an electronic database (with the notation “summa ry 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 Cour t of Appeals for the Second Circuit, held at 1 the Thurgood Marshall United States Courthouse , 40 Foley Square, in the City of New York, 2 on the 19 th day of December, two thousand nineteen. 3 4 PRESENT: J ON O. N EWMAN , 5 D ENNY C HIN , 6 J OSEPH F. B IANCO , 7 Circuit Judges. 8 9 10 U NITED S TATES OF A MERICA , 11 12 Appellee , 18-2091-cr 13 14
v. 15 16 L LESH B IBA , 17 18 Defendant-Appellant

. 19 20 21 22 FOR APPELLEE: ELIZABETH GEDDES, Assistant 23 United States Attorney (Amy Busa, 24 Assistant United States Attorney, on the 25 brief ), for Richard P. Donoghue, United 26 States Attorney for the Eastern District of 27 New York, Brooklyn, New York. 28 29 FOR DEFENDANT-APPELLANT: MEGAN WOLFE BENETT, Kreindler 30 & Kreindler LLP, New York, New York. 31 322 JOYCE C. LONDON, Joyce C. London, 1 P.C., New York, New York ( on the brief ). 2 3 Appeal from a judgment of the United States District Court for the Eastern District of New 4 York (Irizarry, C.J. ). 5
UPON DUE CONSIDERATION WHEREO F, IT IS HEREBY ORDERED, 6 ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED in part and 7
VACATED in part, and the case is REMANDED for re-sentencing. 8 Llesh Biba appeals the judgment of the district co urt convicting him, after his plea of guilty, 9 of conspiracy to commit two Hobbs Act robberies, in violation of 18 U.S.C. § 1951(a) (Counts One 10 and Four), and the brandishing of a firearm in furt herance of one of those robbery conspiracies, in 11 violation of 18 U.S.C. § 924(c)(l)(A )(ii) (Count Three). On appeal, Biba argues in part that his 12 conviction under § 924(c) must be vacated because conspiracy to commit Hobbs Act robbery is not 13
a “crime of violence” under the elements clause of that statute, § 924(c)(3)(A), and because the residual 14 clause of that statute, § 924(c)(3)(B), is unconstitu tionally vague. We assume the parties’ familiarity 15 with the underlying facts, procedural history, and issues on appeal. 16 Under 18 U.S.C. § 924(c), any person who “during and in relation to any crime of violence or 17 drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses 18 a firearm” is subject to mandatory punishment. At the time of Biba’s convi ction, § 924(c)(3) provided 19 two definitions for the “crime of violence” requi rement under § 924(c)(1)(A): the elements clause, 20 § 924(c)(3)(A), and the residual clause, § 924(c)(3)(B). Under the elements cause, a “crime of violence” 21 is defined as a felony that “has as an element the use, attempted use, or threatened use of physical 22 force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A). Un der the residual clause, 23 a “crime of violence” is defined as a felony “that by its nature, involves a substantial risk that physical 24 force against the person or property of another may be used in the course of committing the offense.” 25
Id. § 924(c)(3)(B). The Supreme Court, however, has since held that § 924(c)(3)(B) is 263 unconstitutionally vague. See United States v. Davis , 139 S. Ct. 2319, 2336 (2019). Moreover, in the 1
wake of Davis , this Court has held that conspiracy to commit Hobbs Act robbery does not qualify as 2
a “crime of violence” under the elements clause. See United States v. Barrett , 937 F.3d 126, 129 (2d Cir. 3 2019). 4 Although conceding that Biba’s § 924(c)(1)(A) conviction cannot be based upon his guilty plea 5 to a conspiracy to commit Hobbs Act robbery in light of Davis and Barrett , the government argues that 6
his firearms conviction is still valid under the elem ents clause. More specifically, the government 7 asserts that, because the § 924(c) count to which Bi ba pled (Count Three) incorporates by reference 8 both the conspiracy to commit robbery count (Count One) and the attempted robbery count (Count 9 Two) from the superseding indictment, Biba’s c onviction is valid because attempted robbery is a 10
“crime of violence” under the elements clause. An d, notwithstanding that the district court dismissed 11 the attempted robbery count pursuant to the govern ment’s plea agreement with Biba, the government 12 argues that Biba allocuted to attempted robbery duri ng his plea to the conspiracy and firearms counts, 13 and that such allocution provides a valid predicate “c rime of violence” for the purposes of his § 924(c) 14
conviction. 15 As a threshold matter, although we have held that substantive Hobbs Act robbery qualifies as 16 a “crime of violence” under the elements clause, see United States v. Hill , 890 F.3d 51, 60 (2d Cir. 2018), 17 we have never decided whether attempted Hobbs Act robbery is a “crime of violence” under the 18 elements clause. However, even assuming arguendo that attempted Hobbs Act robbery remains a 19 “crime of violence,” we find the government’s argu ment must fail because Biba did not allocute to 20 the elements of attempted robbery during his guilty plea. In particular, in connection with Count One, 21 Biba admitted that: “on August 17, 2006, I agreed wi th others to be involved in a robbery of a labor 22
union official at his home on Staten Island.” Gov’ t App. at 33-34. Biba further acknowledged that 23 his “job was to be a driver of a get-away car” an d that he “knew what [he] was doing was illegal.” Id

. 244 at 34. Moreover, in connection with the § 924(c) co unt (Count Three), Biba admitted only that he 1 was “aware that one of the participants in the Stat en Island robbery took a gun with him to do the 2 robbery,” that he “assisted in the robbery by agreeing to act as the get-away dr iver,” “that it was illegal 3 to do this,” and that he could foresee that a co-c onspirator could brandish the gun during the robbery. 4
Id . at 36-38. Therefore, alt hough he admitted that he agreed to be the get-away driver, Biba did not 5 state at any point during his allocution that he was the get-away driver or that he took any step towards 6 the commission of the robbery. See United States v. Davis , 689 F.3d 179, 187 (2d Cir. 2012) (“Attempt 7 is an inchoate offense, requiring that a defendant ha ve taken a ‘“substantial step” in furtherance of the 8 intended crime’ to support conviction.” (quoting United States v. Farhane , 634 F.3d 127, 146-47 (2d Cir. 9 2011))). Accordingly, because Biba only allocuted to a Hobbs Act robbery conspiracy as it relates to 10 the § 924(c) count, Biba’s § 924(c) conviction must be vacated under Davis, and Biba must be re11 sentenced on the remaining counts of conviction (which Biba does not challenge on appeal). 1 12 For the foregoing reasons, we VACATE the conviction on Count Three, we AFFIRM the 13 conviction on Counts One and Four, the judgment of the district court is VACATED, and the case 14 is REMANDED for re-sentencing on the remaining counts. 2 15
16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, Clerk of Court 18

1 At oral argument, the government stated that it would not seek to enforce the appeal waiver provision in Biba’s plea agreemen t were we to conclude that the guilty plea to Count Three was not valid in light of Davis

. 2 Given our decision to vacate the conviction on Count Three and remand for re-sentencing, we need not address Biba’s remaining arguments on appe al – namely, (1) that the alterations in Count Three in the superseding indictment, after the gove rnment filed for Biba’s extradition from Canada based on the original indictment, divested the distri ct court of jurisdiction under the rule of specialty, and (2) that the district court’s sentence was procedurally unreasonable.