In its most recent opinion in the United States v. Eldridge case, the Second Circuit (Chin, Sullivan, and Nardini) (the “panel”) held that second-degree kidnapping under New York Penal Law is not a crime of violence pursuant to 18 U.S.C. § 924(c)(3)(A).  Thamud Eldridge had been convicted of possessing a firearm in furtherance of three asserted crimes of violence charged in two separate counts.  One of those counts charged Eldridge with kidnapping in aid of racketeering, where the kidnapping offense was kidnapping in the second degree under New York Law.  The second count charged Eldridge with Hobbs Act robbery under two different possible theories—conspiracy to commit Hobbs Act robbery and attempted Hobbs Act robbery.  The jury convicted Eldridge of all of the charged counts, and did not specify on which predicate, or predicates, it based its finding that Eldridge was guilty of possessing a firearm in furtherance of a crime of violence. 

When we last wrote about Eldridge in 2021, the court considered, among other things, whether to vacate Eldridge’s conviction for possessing a firearm in furtherance of a crime of violence because the Supreme Court had held in the interim that Hobbs Act robbery conspiracy was not a crime of violence.  United States v. Eldridge, 2 F.4th 27, 42 (2d Cir. 2021) (“Eldridge I”).  The Court held that any error which may have resulted if Eldridge’s conviction was based on Hobbs Act robbery conspiracy did not affect Eldridge’s substantial rights because there was overwhelming evidence that the jury would have also convicted Eldridge of attempted Hobbs Act robbery, which at that time remained a crime of violence.  See United States v. McCoy, 995 F.3d 32, 57 (2d Cir. 2021) (“Hobbs Act attempted robbery qualifies as a crime of violence under § 924(c) . . . .”).

The Supreme Court, however, subsequently vacated Eldridge I and remanded the case for further consideration in light of its decision in United States v. Taylor, 142 S. Ct. 2015 (2022).  In Taylor, the Court held that attempted Hobbs Act robbery does not qualify as a crime of violence, and reiterated its holding that only felonies that have “as an element the use, attempted use, or threatened use of physical force against the person or property of another” constitute crimes of violence.  18 U.S.C. § 924(c)(3)(A).  As a result of Taylor, neither the conspiracy to violate the Hobbs Act count, nor the attempted Hobbs Act count, qualify as crimes of violence to support a conviction under Section 924(c).

In light of this, in its recent Eldridge decision, the panel needed to consider whether a second-degree kidnapping conviction under New York Law qualified as a crime of violence.  Both Eldridge and the government contended that it did not, and the panel agreed.  In so holding, the panel employed the modified categorical approach.  The panel looked to the minimum conduct necessary for a conviction under second-degree kidnapping and concluded that a person could be convicted of that offense for using deception to hold a victim in a place where it was unlikely the victim would be found.  A conviction for that crime thus did not require the use, attempted used, or threated use of physical force and so did not constitute a crime of violence.  Because none of the three possible predicate acts of which Eldridge was convicted qualified as a crime of violence, the panel vacated Eldridge’s conviction for possessing a firearm in furtherance of a crime of violence.  The opinion did not disturb any other judgment in Eldridge I.

This case presents another example of how the Supreme Court’s decision in United States v. Davis, 588 U.S. 2319 (2019), which invalidated § 924(c)(3)(B)’s residual clause, has resulted in the Second Circuit holding that more and more convictions do not qualify as crimes of violence.  Last Term’s Supreme Court decision in Taylor continued this trend and has led to more counts of conviction being vacated.  Accordingly, Eldridge is the most recent instance of a defendant whose conviction for possessing a firearm in furtherance of a crime of violence has been vacated.

While the categorical approach remains the rule for assessing whether a predicate act is a crime of violence, increasingly some judges on the Circuit have questioned the wisdom of this approach.  In United States v. Morris, 61 F.4th 311, 317 n. 9 (2d Cir. 2023), Judge Cabranes analogized the categorical approach (in a footnote) to “Alice’s [J]ourney Through the Looking Glass,” and “Sabine Moreau’s 900-mile journey to a train station roughly 38 miles away.” (internal quotations and citations omitted).[1]  He added that “Congress can give us an exit ramp at any time.”  Id.  In response, Judge Lohier wrote a short, separate opinion.  Judge Lohier pointed out that while “the categorical approach is complicated” and he “sympathize[s] with the concerns of my judicial colleagues who have called for its reform or total elimination,” he suggested that “there is some wisdom in the current system.”  Id. at 321 (Lohier, J., concurring).  He explained that it precludes the relitigation of prior convictions, which would be time-consuming, and is also more protective of defendants’ rights at sentencing, both to due process and to avoid judicial fact-finding that is used to increase the statutory maximum in violation of the Sixth Amendment.  Id. at 321–22.  No doubt neither Eldridge nor Morris will be the last word on the application or the wisdom of the categorical approach.