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Court filing — No. 2:19-cr-00313 (Dkt. 38)

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           Case 2:19-cr-00313-GMN-NJK Document 38 Filed 03/29/21 Page 1 of 2




1                               UNITED STATES DISTRICT COURT
2                                      DISTRICT OF NEVADA
3
     UNITED STATES OF AMERICA,                       )
4                                                    )
                          Plaintiff,                 )        Case No.: 2:19-cr-00313-GMN-NJK
5
           vs.                                       )
6                                                    )                    ORDER
     KEYAWN LLOYD COOK, JR.,                         )
7                                                    )
                          Defendant.                 )
8
                                                     )
9           Pending before the Court is the Report and Recommendation (“R&R”) of United States
10   Magistrate Judge Nancy Koppe, (ECF No. 31), which recommends that the Court deny
11   Defendant Keyawn Lloyd Cook, Jr.’s (“Defendant’s”) Motion to Dismiss Count Two of the
12   Indictment, (ECF No. 26). Defendant filed an Objection to the R&R, (ECF No. 34), to which
13   the Government filed a Response, (ECF No. 35).
14          Defendant’s Motion concerns whether Attempted Interference with Commerce by
15   Robbery (“Attempted Hobbs Act Robbery”) is a crime of violence within the meaning of 18
16   U.S.C. § 924(c). On December 4, 2019, the Government charged Defendant by Indictment
17   with one count of Attempted Hobbs Act Robbery in violation of 18 U.S.C. § 1951 and one
18   count of Brandishing a Firearm in Furtherance of a Crime of Violence in violation of 18 U.S.C.
19   § 924(c)(1)(A)(ii). (See Indictment, ECF No. 1). Defendant now moves to dismiss Count Two
20   of the Indictment, arguing that Count One is not a predicate crime of violence that could
21   support a conviction under Count Two. (See Mot. Dismiss, ECF No. 26).
22          A predicate crime of violence must be a felony that “has as an element the use,
23   attempted use, or threatened use of physical force against the person or property of another[.]”
24   See 18 U.S.C. § 924(c)(3)(A) (referred to as the statute’s “elements clause”); see also United
25   States v. Davis, 139 S. Ct. 2319, 2324 (2019) (explaining the distinction between the statute’s


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            Case 2:19-cr-00313-GMN-NJK Document 38 Filed 03/29/21 Page 2 of 2




1    elements clause and residual clause). When analyzing whether a statute is a crime of violence
2    under the elements clause, courts generally apply a “categorical approach” wherein only “[i]f
3    the least of the acts criminalized by [a given crime] would be a crime of violence under §
4    924(c)(3)(A) . . . is [the crime] categorically a crime of violence under the elements clause.”
5    See United States v. Dominguez, 954 F.3d 1251, 1263 (Nguyen, J., Dissenting in part) (quoting
6    United States v. Fultz, 923 F.3d 1192, 1194–95 (9th Cir. 2019)).
7            Defendant argues that the Court should dismiss Count Two because a proper application
8    of the categorical approach would necessitate concluding that Attempted Hobbs Act Robbery is
9    not a crime of violence under § 924(c). (See Mot. Dismiss 5:3–13:14, ECF No. 26). While
10   laudably argued in the Motion to Dismiss, the Ninth Circuit recently concluded that Attempted
11   Hobbs Act Robbery is a crime of violence in Dominguez. (R&R 3:10–17, ECF No. 31). This
12   Court is bound by Circuit precedent, which requires the Court to reach the same conclusion.
13           Accordingly,
14           IT IS HEREBY ORDERED that the Report and Recommendation, (ECF No. 31), is
15   ACCEPTED and ADOPTED in full.1
16           IT IS FURTHER ORDERED that the Motion to Dismiss, (ECF No. 26), is DENIED.
17

18                       29 day of March, 2021.
             Dated this ___
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20
                                                          ___________________________________
21
                                                          Gloria M. Navarro, District Judge
                                                          UNITED STATES DISTRICT COURT
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23

24
     1
       In his Reply to the Motion, Defendant asks that the Court stay resolution of the Motion given the petition for
25   writ of certiorari in Dominguez. (Reply Mot. Dismiss 4:22–23, ECF No. 30). A response to the Petition has not
     yet been filed, and the Court agrees with the R&R’s conclusion that the mere possibility of a future change in
     law deriving from another case does not support an indefinitely long stay in this case. (R&R 6:17 n.2).

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