16-3828-cr 

United States of America v. Duartez

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 ASUMMARY ORDER@). A PARTY CITING TO 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 6th day of December, two thousand eighteen. 

Present: 

AMALYA L. KEARSE, 

DEBRA ANN LIVINGSTON, 

 SUSAN L. CARNEY,

Circuit Judges. 

___________________________________________ 

UNITED STATES OF AMERICA, 

Appellee, 

v. 16-3828-cr 

ARISTIDES DUARTEZ, JR., AKA Aristedes 

Duartez, Jr., 

Defendant-Appellant.

___________________________________________ 

For Appellee: GRANT C. JAQUITH, United States Attorney for the 

Northern District of New York (Rajit S. Dosanjh, 

Assistant United States Attorney, on the brief), 

Syracuse, NY. 

For Defendant-Appellant: LISA A. PEEBLES, Federal Public Defender (James 

P. Egan, Assistant Federal Public Defender, on the 

brief), Syracuse, NY. 

 
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Appeal from an order of the United States District Court for the Northern District of New 

York (McAvoy, J.). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the order of the district court is AFFIRMED. 

Defendant-Appellant Aristides Duartez, Jr. (“Duartez”) challenges his conviction and 

sentence under 18 U.S.C. § 924(c) in the United States District Court for the Northern District of 

New York (McAvoy, J.). On April 26, 2016, the district court denied Duartez’s motion to 

dismiss the charge against him under that provision. On May 24, 2016, Duartez pled guilty to 

that charge, along with one count of Hobbs Act robbery, 18 U.S.C. § 1951(a), while preserving 

the right to appeal the district court’s prior order. On appeal, Duartez argues that his predicate 

offense of Hobbs Act robbery does not qualify as a “crime of violence” as defined under 

§ 924(c)(3)(A), and that the alternative definition of “crime of violence” under § 924(c)(3)(B) is 

unconstitutionally void for vagueness. We assume the parties’ familiarity with the underlying 

facts, the procedural history of the case, and the issues on appeal. 

* * * 

Section 924(c) imposes criminal penalties on “any person who, during and in relation to 

any crime of violence . . ., uses or carries a firearm . . . .” 18 U.S.C. § 924(c)(1)(A). Subsection 

(c)(3) then defines the term “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 

(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. 

 

Id. § 924(c)(3). We refer to § 924(c)(3)(A) as the “force clause” and § 924(c)(3)(B) as the “riskof-force clause.” On appeal, Duartez challenges the district court’s refusal to dismiss the charge 
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against him under § 924(c) by arguing that Hobbs Act robbery does not constitute a “crime of 

violence” under either clause’s definition. 

Duartez first argues that Hobbs Act robbery does not qualify as a “crime of violence” under 

the “force clause.” That argument is squarely foreclosed by Second Circuit precedent holding 

that Hobbs Act robbery does, in fact, categorically qualify as a “crime of violence” under the “force 

clause” of § 924(c)(3)(A). See United States v. Hill, 890 F.3d 51, 60 (2d Cir. 2018). Because 

Duartez’s conviction under § 924(c) may stand on that ground alone, we need not address his 

second argument that the “risk-of-force clause” is unconstitutionally void for vagueness under 

Sessions v. Dimaya, 138 S. Ct. 1204 (2018). Duartez’s predicate offense of Hobbs Act robbery 

constitutes a “crime of violence” under § 924(c)(3)(A), so the district court properly denied his 

motion to dismiss the charge against him under § 924(c). 

* * * 

For the above-stated reasons, we AFFIRM the judgment of the district court. 

 FOR THE COURT: 

Catherine O=Hagan Wolfe, Clerk