United States v. Tyvonne Wiley
Citation78 F.4th 1355
Date Filed2023-08-29
Docket22-10179
Cited21 times
StatusPublished
Full Opinion (html_with_citations)
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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10179
____________________
UNITED STATES OF AMERICA,
PlaintiďŹ-Appellee,
versus
TYVONNE WILEY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:17-cr-00122-LMM-LTW-2
____________________
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2 Opinion of the Court 22-10179
Before JILL PRYOR and GRANT, Circuit Judges, and MAZE, â District
Judge.
JILL PRYOR, Circuit Judge:
Tyvonne Wiley appeals his convictions for conspiracy to
commit Hobbs Act robbery, Hobbs Act robbery, and brandishing
a firearm during a crime of violence. He makes three arguments on
appeal: (1) the district court abused its discretion by striking a juror
for cause because of her religious beliefs, (2) the district court
plainly erred by allowing law enforcement officers to identify
Wiley in surveillance footage, and (3) his convictions for using, car-
rying, and brandishing a firearm during a crime of violence should
be vacated because aiding and abetting Hobbs Act robbery is not a
predicate crime of violence under 18 U.S.C. § 924(c). After careful
consideration and with the benefit of oral argument, we affirm.
I. BACKGROUND
Wiley was charged with one count of conspiracy to commit
Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a); five counts
of aiding and abetting Hobbs Act robbery, in violation of 18 U.S.C.
§§ 1951(a) and 2; and five counts of aiding and abetting to use,
carry, and brandish a firearm during a crime of violence, in viola-
tion of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2. The indictment alleged
that Wiley and codefendants Tevin Mitchell and Torey Starling
â The Honorable Corey L. Maze, United States District Judge for the Northern
District of Alabama, sitting by designation.
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22-10179 Opinion of the Court 3
had âaided and abettedâ one another in committing a series of
armed robberies several years earlier. Mitchell and Starling pled
guilty, and Wiley proceeded to trial.
During voir dire, the court asked the jury pool if anyone
âwould not accept or follow the law given by the judge at the end
of the trial,â and if anyone âha[d] any moral or religious convictions
which discourage or prevent jury service or would make it difficult
for [them] to pass judgment.â Doc. 329 at 27. 1 Prospective Juror 23
told the court that she was a Jehovahâs Witness and would have
difficulty judging others because she did not âhave a lot of faith in
the legalâthe justice system.â Id. at 27â28. The court and counsel
for both parties questioned Juror 23 on her ability to be impartial.
In response to the questioning, she expressed her opinion that no-
body knew the truth about what happened except the people in-
volved and Jehovah. She said that she did ânot want to be respon-
sible for someone going to jail when [she] wonât be given all of the
facts according to the way justly they should be given to [her]â and
would instead have to rely on âimperfect menâs opinions.â Id. at
149â50.
When the government asked Juror 23 if she could be impar-
tial, she responded, âI donât really know. I cannot tell you that I
would.â Id. at 150. When defense counsel asked her if she could
give each side a fair trial, she stated that âfair is relative.â Id. at 151.
The court acknowledged that some aspects of Juror 23âs religion
1 âDoc.â numbers refer to the district courtâs docket entries.
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4 Opinion of the Court 22-10179
may âmake[] it difficult for a person to potentially sit in judgment
over another personâ and asked her to explain whether that was
true for her. Id. at 151â52. She responded that God was the only
judge and she could not judge people.
After this exchange, the government moved to strike Juror
23 for cause because she did not answer clearly when asked
whether she could be fair and impartial, emphasized that she
would not have all the facts of the case, and said she could not judge
other people. Defense counsel opposed the strike, arguing that Ju-
ror 23âs statements did not mean that she could not be impartial,
merely that it would be difficult for her. The court agreed with the
government and struck Juror 23 for cause. The court explained that
it had âsome concerns about her ability to follow the courtâs in-
structions about this being the evidence and follow what it is sheâs
supposed to do.â Id. at 153.
At trial, the government introduced evidence of Wileyâs role
in the series of armed robberies, which occurred at several retail
stores. One of the governmentâs witnesses was Sergeant Darren
Hull, a Cobb County police officer who investigated the robberies.
Hull explained that as part of the investigation, he and other offic-
ers surveilled a house associated with the robberies. The house be-
longed to Wileyâs codefendant, Torey Starling. During Hullâs testi-
mony, the government played a surveillance video taken at Star-
lingâs house the day after one of the robberies. The video showed
a man sitting on the porch of the house holding a cell phone and
removing a stack of cash from his pocket. The government also
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22-10179 Opinion of the Court 5
introduced still images from the surveillance video. Hull identified
the man in the images as Wiley. Although Hull was unfamiliar with
Wiley at the time the footage was captured, he testified, âat the
conclusion of the investigation[,] that is who I learned was Mr.
Wiley.â Doc. 330 at 224. Hull also identified Wiley in the court-
room after Wiley removed his face covering.
Hull also testified that the day after the surveillance footage
was taken, officers executed a search warrant at Starlingâs house.
When Hull arrived with other officers to execute the search war-
rant, he saw a man run out of the house. Hull and another officer
pursued the man. They eventually stopped him and placed him in
handcuffs. The man turned out to be Wiley.
Defense counsel did not object to Hullâs testimony identify-
ing Wiley as the man in the photograph or to the introduction of
the still images. On cross examination, defense counsel questioned
Hull about the âclose-up picture of Mr. Wiley sitting on the porchâ
and acknowledged that the government showed a âpicture . . . of
Mr. Wiley sitting on the porch.â Id. at 242, 247.
The government also called former Cobb County detective
David Raissi, another law enforcement officer who investigated the
robberies. Like Hull, Raissi was present when Wiley was arrested.
During his testimony, Raissi identified Wiley as the person in the
surveillance photographs who was sitting on the porch holding a
stack of money. Defense counsel did not object to this testimony.
Raissi also testified that he interacted with Wiley immediately fol-
lowing his arrest, and he identified the clothes that Wiley was
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6 Opinion of the Court 22-10179
wearing at the time. Raissi photographed Wiley after his arrest.
When the government showed him the photographs he had taken
of Wiley, Raissi identified Wiley in the photographs, noting that
Wiley had a tattoo under his left eye, a ninja turtle tattoo on the
side of his right eye, and a tattoo of a dollar sign on his forehead.
The government also called Starling. Starling testified that
he met Wiley approximately two months before the men were ar-
rested. Starling admitted that he participated in two of the rob-
beries. He testified that on each occasion he drove Wiley and
Mitchell to a retail store. Once they arrived at the retail stores,
Wiley, carrying a mask and a gun, exited the car and robbed the
stores. Starling admitted that Wiley paid him for driving to the
stores.
The government showed Starling the same surveillance
video it had shown to Hull. Starling identified the man in the video
as Wiley and noted that Wiley was holding a stack of money. He
also identified Wiley in the courtroom.
During their investigation, officers searched Starlingâs house
and car. The government introduced into evidence two masks that
had been recovered from Starlingâs house and a gun that had been
recovered from his car. Starling testified that Wiley used these
items during the robberies. In addition to Starlingâs testimony, the
government introduced evidence showing that Wileyâs finger-
prints and DNA were found on the masks recovered from Starlingâs
house and that his DNA was found on the gun recovered from Star-
lingâs car.
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The jury found Wiley guilty on all counts. After trial, Wiley
invoked Federal Rule of Criminal Procedure 29 in a motion to dis-
miss three of the § 924(c) counts of conviction, arguing that aiding
and abetting Hobbs Act robbery was not a crime of violence. The
district court denied Wileyâs motion, concluding that his argument
was foreclosed by this Courtâs precedent. This is Wileyâs appeal.
II. STANDARD OF REVIEW
We review a district courtâs decision to strike a juror for
cause for an abuse of discretion. United States v. Brown, 996 F.3d
1171, 1182 (11th Cir. 2021) (en banc). âWe will reverse the district
court only if we find that it discharged the juror without factual
support, or for a legally irrelevant reason.â Id. (internal quotation
marks omitted).
We generally review for abuse of discretion a district courtâs
decision to admit lay opinion testimony. See United States v. Pierce,
136 F.3d 770, 773 (11th Cir. 1998). Where a party fails to object to
the testimony at trial, however, we review for plain error. See
United States v. Campo, 840 F.3d 1249, 1265 (11th Cir. 2016).
Whether an offense is a crime of violence under 18 U.S.C.
§ 924(c) is a question of law that we review de novo. Alvarado-Linares
v. United States, 44 F.4th 1334, 1341 (11th Cir. 2022).
III. DISCUSSION
Wiley makes three arguments on appeal. First, he argues
that the district court abused its discretion by striking Juror 23
based on her statements regarding her religious beliefs and her
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8 Opinion of the Court 22-10179
ability to render a fair and impartial verdict. Second, he argues that
the district court erred by allowing law enforcement officers to give
lay opinion testimony identifying Wiley in the surveillance footage
presented at trial when the officers did not become familiar with
Wiley until after his arrest. Third, he argues that his § 924(c) con-
victions should be vacated because aiding and abetting Hobbs Act
robbery no longer qualifies as a crime of violence under § 924(c).
We reject Wileyâs arguments and affirm the district courtâs judg-
ment.
A. The District Court Did Not Abuse Its Discre-
tion by Striking Juror 23 for Cause.
Wiley argues that the district court abused its discretion by
excusing prospective Juror 23. He contends that, although Juror 23
questioned the fairness of the judicial process and explained that it
would be difficult for her to judge others, she did not indicate that
she was unable to weigh the evidence, follow the law, and render
a just verdict. We disagree. Juror 23 said that her religious convic-
tions might impact her ability to sit on a jury and that she did not
know if she could be impartial. The district court therefore did not
abuse its considerable discretion when it struck Juror 23 for cause.
âCourts may exclude or remove jurors who make clear that
they may not sit in judgment of others based on their religious be-
liefs.â Brown, 996 F.3d at 1190. In Brown, the district court removed
a deliberating juror after he told other jurors that âthe Holy Spirit
told him [the defendant] was not guilty on all charges.â Id. at 1193
(internal quotation marks omitted). We reversed, reasoning that,
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22-10179 Opinion of the Court 9
when the district court questioned the juror about his statements
after the issue came to light, the juror âexpressly disavowed that
any religious or moral beliefs were interfering with his ability to
decide the case on the facts presented and on the law as instructed.â
Id. at 1190 (alterations adopted) (internal quotation marks omit-
ted). We noted that the juror never âexpress[ed] any lack of faith in
the justice system or admit[ted] that he could not be fair.â Id. at
1187.
Here, unlike the juror in Brown, Juror 23 could not confirm
her ability to be fair and follow the courtâs instructions on weighing
the evidence presented. See United States v. Lewis, 40 F.4th 1229,
1241â42 (11th Cir. 2022) (holding that the district court did not
abuse its discretion when it struck a juror who could not confirm
her ability to be fair and stated during jury selection that she was
not one to cast judgment on others and that it would be a struggle
for her to do so). When asked whether she could be impartial, Juror
23 responded that she did not know. She explained that, based on
her religious beliefs, she could not judge other people. She ex-
pressed doubt that she would be given all the facts she thought she
should be given to decide the case, saying that she âcould only be
as fair as what you give me.â Doc. 329 at 150â51. She voiced con-
cern about relying on âimperfect menâs opinionsâ without all the
facts. Id. at 149â50. And she said that she did not âhave a lot of faith
in the . . . justice system.â Id. at 27â28. Based on these responses,
the district court did not abuse its discretion in striking Juror 23 for
cause. See Lewis, 40 F.4th at 1241â42.
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10 Opinion of the Court 22-10179
We note that this case is further distinguishable from Brown
because in Brown âthe heightened standard applicable to the dismis-
sal of an already empaneled juror during deliberations was central
to our decision.â Id. at 1242. Here, by contrast, Juror 23 was struck
during jury selection. And âthere are few aspects of a jury trial
where we would be less inclined to disturb a trial judgeâs exercise
of discretion than in ruling on challenges for cause in empaneling
of a jury.â Id. (internal quotation marks omitted).
B. The District Court Did Not Plainly Err by Per-
mitting Law Enforcement Officers to Offer
Lay Opinion Testimony.
Next, Wiley argues that the district court plainly erred by
permitting law enforcement officers to identify him in surveillance
videos and photographs because the officers lacked sufficient famil-
iarity with him to permit their identification testimony. He also ar-
gues that the officers should not have been permitted to testify that
he was holding a stack of money because they had no way of iden-
tifying the object in his hand, other than by examining the photo-
graphs. Wiley failed to object to the officersâ testimony at trial, so
we review this argument for plain error. See Campo, 840 F.3d at
1265. âTo prevail under plain error review, [the defendant] must
show that the district court made an error, that the error was plain,
and that it affected his substantial rights.â United States v. Iriele,
977 F.3d 1155, 1177 (11th Cir. 2020). And we will not reverse based
on plain error unless the error âseriously affect[ed] the fairness, in-
tegrity, or public reputation of judicial proceedings.â Id. Even
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22-10179 Opinion of the Court 11
assuming the admission of the officersâ identification testimony
was erroneous, Wiley has not shown that the error affected his sub-
stantial rights.
Federal Rule of Evidence 701 provides that a lay witnessâs
âtestimony in the form of an opinionâ must be â(a) rationally based
on the witnessâs perception, (b) helpful to clearly understanding the
witnessâs testimony or to determining a fact in issue, and (c) not
based on scientific, technical, or other specialized knowledge.â Fed.
R. Evid. 701. We have explained that âlay opinion identification
testimony may be helpful to the jury where . . . there is some basis
for concluding that the witness is more likely to correctly identify
the defendant from the photograph than is the jury.â Pierce,
136 F.3d at 774 (internal quotation marks omitted). âPerhaps [the]
most critical [factor] to this determination is the witnessâs level of
familiarity with the defendantâs appearance.â Id. On one end of the
spectrum, âfamiliarity derived from a witnessâs close relationship
to, or substantial and sustained contact with, the defendant weighs
heavily in favor of admitting the witnessâs identification testi-
mony.â Id. On the other end, âknowledge of the defendantâs ap-
pearance based entirely on the witnessâs review of photographs . . .
is not based on anything more than the evidence the jury would
have before it at trial.â Id. (internal quotation marks omitted).
Other considerations include âthe witnessâs familiarity with the de-
fendantâs appearance at the time the surveillance photographs
were taken.â Id.
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Here, the officersâ familiarity with Wiley lands somewhere
in the middle. Although it falls short of the âclose relationship . . .
or substantial and sustained contactâ contemplated in Pierce, both
officers were present when Wiley was arrested just a day after the
surveillance footage was captured and thus had more familiarity
with Wileyâs appearance at that time than the jury. See id. But we
need not decide whether the officersâ post-arrest familiarity with
Wiley was sufficient to permit them to identify him at trial. Assum-
ing that the district court erred by admitting the lay opinion iden-
tification testimony, Wiley cannot show that his substantial rights
were affected. âA substantial right is affected if the appealing party
can show that there is a reasonable probability that there would
have been a different result had there been no error.â United States
v. Bennett, 472 F.3d 825, 831â32 (11th Cir. 2006). Wiley cannot make
this showing because the officersâ identification testimony was not
the only evidence linking Wiley to the robberies.
For one thing, Wileyâs codefendant Starlingâwho knew
Wiley personally and spent considerable time with him in the two
months preceding the surveillance footage and Wileyâs arrestâ
confirmed that Wiley was at Starlingâs house on the day the sur-
veillance footage was taken. Starling identified Wiley as the man in
the video. He also noted that Wiley was holding a cell phone in the
video and took money out of his pocket. On appeal, Wiley does
not challenge the admission of this testimony. Additionally, de-
fense counsel acknowledged at trial that Wiley was the person in
the video.
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22-10179 Opinion of the Court 13
For another, the government presented additional evidence
linking Wiley to the robberies. Starling testified that Wiley paid
him to drive Wiley to two retail stores, where Wiley, carrying a
gun and a mask, got out of the car to rob the stores. When police
recovered two masks from Starlingâs house and a gun from Star-
lingâs car, Starling identified them as the items Wiley used during
the robberies. Wileyâs fingerprints and DNA were found on the
masks, and his DNA was found on the gun recovered from Star-
lingâs car. Considering Starlingâs testimony identifying Wiley in the
surveillance footage and the substantial evidence establishing
Wileyâs involvement in the robberies, Wiley cannot show that the
admission of Hullâs and Raissiâs testimony affected his substantial
rights.
C. Our Precedent Forecloses Wileyâs Argument
that Aiding and Abetting Hobbs Act Robbery
Is Not a Crime of Violence.
Finally, Wiley argues that his § 924(c) convictions for bran-
dishing a firearm during a crime of violence should be vacated be-
cause aiding and abetting a completed Hobbs Act robbery is not a
predicate crime of violence. He acknowledges our precedent to the
contrary but argues that our prior decision has been abrogated by
the Supreme Courtâs decision in United States v. Taylor, 142 S. Ct.
2015 (2022). We reject Wileyâs argument.
Section 924(c) punishes âany person who, during and in re-
lation to any crime of violence . . . , uses or carries a firearm, or
who, in furtherance of any such crime, possesses a firearm.â
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14 Opinion of the Court 22-10179
18 U.S.C. § 924(c)(1)(A). To qualify as a âcrime of violenceâ under
§ 924(c), a felony must have âas an element the use, attempted use,
or threatened use of physical force against the person or property
of another.â Id. § 924(c)(3)(A). This language is known as the âele-
ments clauseâ of § 924(c).
Wiley was convicted of five counts of aiding and abetting
Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951(a) and 2. Spe-
cifically, the indictment charged for each of these counts that Wiley
and others, âaided and abetted by one another, did obstruct, de-
lay[,] and affect commerce by robbery . . . by knowingly and un-
lawfully taking property . . . belonging to [a business] . . . in the
presence of an employee of the business, by means of actual and
threatened force, violence[,] and fear of injury to the person of the
employee.â Doc. 189 at 3. These substantive counts for aiding and
abetting Hobbs Act robbery served as the predicate offenses for
Wileyâs § 924(c) convictions for brandishing a firearm during a
crime of violence.
Under our precedent, aiding and abetting a completed
Hobbs Act robbery constitutes a crime of violence. See In re Colon,
826 F.3d 1301, 1305 (11th Cir. 2016). In Colon, we relied on our prec-
edent establishing that completed Hobbs Act robbery qualifies as
crime of violence under § 924(c)(3)(A). See id. (citing In re Saint
Fleur, 824 F.3d 1337, 1341 (11th Cir. 2016)). Hobbs Act robbery
criminalizes the âunlawful taking or obtaining of personal property
from the person . . . of another, against his will, by means of actual
or threatened force, or violence, or fear of injury.â 18 U.S.C.
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22-10179 Opinion of the Court 15
§ 1951(b)(1)). Thus, the elements of Hobbs Act robbery ârequire
the use, attempted use, or threatened use of physical force âagainst
the person or property of another.ââ Saint Fleur, 824 F.3d at 1341
(quoting 18 U.S.C. § 924(c)(3)(A)).
Colon explained that â[a]iding and abetting, under 18 U.S.C.
§ 2, is not a separate federal crime, but rather an alternative charge
that permits one to be found guilty as a principal.â 826 F.3d at 1305
(internal quotation marks omitted). âBecause an aider and abettor
is responsible for the acts of the principal as a matter of law, an
aider and abettor of a Hobbs Act robbery necessarily commits all
the elements of a principal Hobbs Act robbery.â Id. Because Hobbs
Act robbery itself qualifies as a crime of violence under § 924(c)âs
elements clause, so does aiding and abetting Hobbs Act robbery.
Id.
Wiley acknowledges that his argument is foreclosed by our
precedent, but he urges us to revisit the issue in light of the Su-
preme Courtâs decision in Taylor. See 142 S. Ct. at 2025â26 (holding
that attempted Hobbs Act robbery is not a crime of violence under
18 U.S.C. § 924(c)). To disturb our existing precedent, a âSupreme
Court decision must be clearly on pointâ and âactually abrogate or
directly conflict with, as opposed to merely weaken, the holding of
the prior panel.â United States v. Kaley, 579 F.3d 1246, 1255 (11th Cir.
2009) (internal quotation marks omitted). Because the Supreme
Courtâs analysis in Taylor was limited to attempted Hobbs Act rob-
bery, Wiley cannot overcome our established precedent holding
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16 Opinion of the Court 22-10179
that aiding and abetting completed Hobbs Act robbery is a crime
of violence under § 924(c)(3)(A).
In Taylor, the Supreme Court held that attempted Hobbs Act
is not a crime of violence under § 924(c)(3)(A). 142 S. Ct. at 2025.
The Court distinguished between the completed offenseâwhich re-
quires the government to prove the use, attempted use, or threat-
ened use of forceâand an attempt to complete that offense. To ob-
tain a conviction for completed Hobbs Act robbery, the govern-
ment must prove âthat the defendant engaged in the âunlawful tak-
ing or obtaining of personal property from the person of another,
against his will, by means of actual or threatened force.ââ Id. at 2020
(alteration adopted) (quoting 18 U.S.C. § 1951(b)). By contrast, to
obtain a conviction for attempted Hobbs Act robbery, the govern-
ment need only show that the defendant intended to complete the
offense and performed a âsubstantial stepâ toward that end. Id. (in-
ternal quotation marks omitted). âAnd whatever a substantial step
requires,â the Court said, âit does not require the government to
prove that the defendant used, attempted to use, or even threat-
ened to use force against another person or his property.â Id.
The same reasoning does not apply to accessory liability un-
der 18 U.S.C. § 2, which is distinct from attempt and other inchoate
offenses. Section 2 provides that:
(a) Whoever commits an oďŹense against the United
States or aids, abets, counsels, commands, induces or
procures its commission, is punishable as a principal.
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22-10179 Opinion of the Court 17
(b) Whoever willfully causes an act to be done which
if directly performed by him or another would be an
oďŹense against the United States, is punishable as a
principal.
18 U.S.C. § 2. Unlike attempt, aiding and abetting under § 2 âis not
a separate federal crime, but rather an alternative charge that per-
mits one to be found guilty as a principal.â United States v. Sosa,
777 F.3d 1279, 1292 (11th Cir. 2015) (internal quotation marks
omitted). To obtain a conviction for aiding and abetting, the gov-
ernment must prove, among other things, that someone commit-
ted the substantive offense. Id. By contrast, âTaylor hinged on the
fact that attempt is a separate crime from the underlying offense,
with the distinct element of a âsubstantial step.ââ United States v.
Worthen, 60 F.4th 1066, 1070 (7th Cir. 2023) (internal quotation
marks omitted); see also United States v. Draven, No. 21-7171, --- F.4th
---, 2023 WL 5112021 at *9 (4th Cir. Aug. 11, 2023) (rejecting an
argument similar to Wileyâs and explaining that âthe Supreme
Court did not explicitly instruct on Taylorâs reach beyond the pur-
view of attempted Hobbs Act robberyâ (emphasis in original));
United States v. Stevens, 70 F.4th 653, 662 (3d Cir. 2023) (considering
the same issue after Taylor and holding that, âbecause the force re-
quired for completed Hobbs Act robbery is sufficient to satisfy the
elements clause, the force required for an aiding and abetting con-
viction is necessarily also sufficientâ (citation omitted)).
Whereas attempt to commit Hobbs Act robbery can be
proven by showing intent and a substantial step, âan aider and abet-
tor of a Hobbs Act robbery necessarily commits all the elements of
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18 Opinion of the Court 22-10179
a principal Hobbs Act robbery.â See Colon, 826 F.3d at 1305. The
Supreme Courtâs decision in Taylor therefore did not âactually ab-
rogate or directly conflict withâ our holding regarding accessory
liability under § 2. See Kaley, 579 F.3d at 1255. And because Taylor
did not disturb our holding that completed Hobbs Act robbery is a
crime of violence, aiding and abetting a completed Hobbs Act rob-
bery also qualifies as a crime of violence under § 924(c)(3)(A). See
Taylor, 142 S. Ct. at 2020 (âWhatever one might say about completed
Hobbs Act robbery, attempted Hobbs Act robbery does not satisfy
the elements clause.â (emphasis in original)).
IV. CONCLUSION
For the above reasons, we affirm Wileyâs convictions.
AFFIRMED.