United States v. Dominguez

• Decision Date: 07 April 2020
• Docket Number: No. 14-10268,14-10268
• Citation: 954 F.3d 1251
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Monico DOMINGUEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

954 F.3d 1251

UNITED STATES of America, Plaintiff-Appellee,

v.Monico DOMINGUEZ, Defendant-Appellant.

No. 14-10268

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 7, 2016

Submission Vacated July 12, 2016

Argued and Resubmitted December 10, 2019 Pasadena, California

Filed April 7, 2020

SILVERMAN, Circuit Judge:

On August 11, 2011, appellant Monico Dominguez and a man named Milton Fierro robbed the Garda Cash Logistics armored car warehouse in Santa Rosa, California. Wearing masks and armed with an AK-47 rifle and either a 9-millimeter or a .45 caliber handgun, the two men snuck into the Garda warehouse. They pointed their guns at two guards, put them on the ground, tied their hands and feet with rope, and demanded access to the vault. The robbers made off with over $900,000 in cash and two guns belonging to one of the guards.

About a year later, Dominguez approached his friend Kevin Jensen and offered him $100,000 to participate in another Garda robbery, this time of a Garda armored car. When Jensen found out that the FBI was offering a $100,000 reward for information about the previous year's Garda robbery, he contacted the FBI and became a confidential informant. That's how the FBI was able to thwart the second robbery before it was completed.

On August 6, 2012, Dominguez and Jensen drove toward the Garda warehouse intending to hold up an armored car. This time, Dominguez was armed with a .357 revolver. Tipped off by Jensen, the FBI and local enforcement officers staged a fake crime scene near the warehouse to make it difficult for a vehicle to get close to it. While en route to the warehouse, Dominguez received a phone call, after which Dominguez told Jensen they had to terminate the plan because of the unusual law enforcement activity near the Garda building. Dominguez drove to within about a block or so of the warehouse before turning around. Dominguez was arrested the following day and charged with Hobbs Act robbery of the Garda warehouse in 2011, attempted Hobbs Act robbery of a Garda armored car in 2012, possession of firearms in furtherance of both crimes, conspiracy, money laundering, and structuring transactions.

We hold today that the evidence was sufficient to support Dominguez's conviction of attempted Hobbs Act robbery. The evidence overwhelmingly showed that Dominguez had the specific intent to commit the robbery and had taken a "substantial step" toward its completion - arming himself with a handgun and driving to within about a block of the planned robbery with his accomplice, turning around only because he got ensnared in the fake crime scene.

In light of recent Supreme Court cases, we also reiterate our previous holding that Hobbs Act armed robbery is a crime of violence for purposes of 18 U.S.C. § 924(c)(3)(A). See United States v. Mendez , 992 F.2d 1488, 1491 (9th Cir. 1993).

And, like the two other circuit courts that have considered the question, we hold that when a substantive offense is a crime of violence under 18 U.S.C. § 924(c)(3)(A), an attempt to commit that offense is also a crime of violence. See United States v. Ingram , 947 F.3d 1021 (7th Cir. 2020) ; United States v. St. Hubert , 909 F.3d 335 (11th Cir. 2018) ; Hill v. United States , 877 F.3d 717 (7th Cir. 2017). We agree with the Eleventh Circuit that attempted Hobbs Act armed robbery is a crime of violence for purposes of § 924(c) because its commission requires proof of both the specific intent to complete a crime of violence, and a substantial step actually (not theoretically) taken toward its completion. St. Hubert , 909 F.3d at 351. It does not matter that the substantial step—be it donning gloves and a mask before walking into a bank with a gun, or buying legal chemicals with which to make a bomb—is not itself a violent act or even a crime. What matters is that the defendant specifically intended to commit a crime of violence and took a substantial step toward committing it. The definition of "crime of violence" in § 924(c)(3)(A) explicitly includes not just completed crimes, but those felonies that have the "attempted use" of physical force as an element. It is impossible to commit attempted Hobbs Act robbery without specifically intending to commit every element of the completed crime, which includes the commission or threat of physical violence. 18 U.S.C. § 1951. Since Hobbs Act robbery is a crime of violence, it follows that the attempt to commit Hobbs Act robbery is a crime of violence.

I. Convictions and Sentence

Following his arrest, Dominguez was charged with eleven counts in connection with the 2011 robbery and the attempted 2012 robbery. The relevant counts are:

Count One: conspiracy to commit the 2011 robbery, in violation of 18 U.S.C. § 1951(a) ;

Count Two: robbery in violation of 18 U.S.C. §§ 1951(a) and 2;

Count Three: possession of a firearm in furtherance of a crime of violence, namely the 2011 conspiracy (Count One) and robbery (Count Two), in violation of 18 U.S.C. §§ 924(c) and 2;

Count Four: money laundering in violation of 18 U.S.C. § 1957 in the August 30, 2011 cash purchase of a Harley-Davidson motorcycle;

Count Eight: conspiracy to commit the August 6, 2012 robbery, in violation of 18 U.S.C. § 1951(a) ; Count Nine: attempted robbery on August 6, 2012, in violation of 18 U.S.C. §§ 1951(a) and 2; and

Count Ten: possession of a firearm in furtherance of a crime of violence, namely the 2012 conspiracy (Count Eight) and the 2012 attempted robbery (Count Nine).¹

In his closing argument, the prosecutor argued that Dominguez had completed a "substantial step" toward the 2012 attempted robbery, because he turned his car around only in response to law enforcement presence, not because he'd had a change of heart. Dominguez's counsel did not object to the prosecutor's arguments and, in his own closing, conceded (with his client's consent) the defendant's guilt of the attempted robbery.

The jury convicted Dominguez of Counts One through Ten in the indictment. The district court imposed a prison sentence totaling 384 months and one day: one day for Counts One, Two, and Four through Nine, to be served concurrently with each other; 84 months for Count Three, Dominguez's first § 924(c) violation, to be served consecutively to that one-day term; and 300 months for Count Ten, Dominguez's second § 924(c) conviction, to be served consecutively to all other sentences imposed.

II. Standard of Review

We review insufficient evidence claims de novo. United States v. Sullivan , 522 F.3d 967, 974 (9th Cir. 2008). Evidence is sufficient to support a conviction if, viewed "in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Nevils , 598 F.3d 1158, 1163–64 (9th Cir. 2010) (en banc) (citation omitted).

We review de novo whether a criminal conviction is a crime of violence under § 924(c)(3). United States v. Begay , 934 F.3d 1033, 1037 (9th Cir. 2019). "Where, as here, a party raises an argument for the first time on appeal, we generally review for plain error; however, we are not limited to plain error review when we are presented with a question that is purely one of law and where the opposing party will suffer no prejudice as a result of the failure to raise the issue in the trial court." Id. (citation and internal quotation marks omitted). Here, whether Hobbs Act robbery, attempted Hobbs Act robbery, and conspiracy to commit Hobbs Act robbery are crimes of violence are pure questions of law, and the government, which has fully briefed the issue, suffers no prejudice. See id. at 1037–38.

We review for plain error Dominguez's claim that the prosecutor misstated the law during closing argument, because Dominguez raises this issue for the first time on appeal. See, e.g. , United States v. Joseph , 716 F.3d 1273, 1276 (9th Cir. 2013).

III. Count Four: Money Laundering ( 18 U.S.C. § 1957 )

Count Four charged Dominguez with money laundering, in violation of 18 U.S.C. § 1957, for buying a motorcycle that he paid for in cash with money stolen in the robbery. The government concedes, and we agree, that this conviction must be vacated because the government failed to establish an essential element—namely, that the funds at issue passed through a financial institution. See 18 U.S.C. § 1957 (defining "monetary transaction" as one "by, through, or to a financial institution"); United States v. Ness , 565 F.3d 73, 78 (2d Cir. 2009) ("[I]n order to sustain a § 1957(a) conviction, a financial institution must have been involved."). We reverse Count 4 of Dominguez's conviction.²

IV. Count Nine: Attempted Hobbs Act Robbery ( 18 U.S.C. §§ 1951(a) and 2)

Dominguez next argues that the government's evidence is legally insufficient to establish that he took a "substantial step" toward completion of the August 2012 attempted robbery. Instead, he argues that he never got sufficiently close to the intended target because he voluntarily turned around more than a block away from the warehouse.

We may consider Dominguez's substantive argument only if we find that he did not waive it when his counsel, with Dominguez's permission, repeatedly conceded Dominguez's guilt of the attempted robbery. See, e.g. , United States v. Bentson , 947 F.2d 1353, 1356 (9th Cir. 1991) (rejecting defendant's sufficiency claim after defendant's counsel made binding admission in closing). For example, in his closing argument, defense counsel told the jury:

Monico Dominguez, my client, is guilty of Counts Eight and Nine. He is guilty. You can go ahead and fill out the Verdict Form that you're going to get ... This is not an easy thing to tell you .... but my client is authorizing me to do it because there really is no dispute.

Later, counsel told the jury:

Mr. Dominguez, my client, planned a very, very, very serious criminal act. He's just admitted it to you now. He's telling you to convict him of the August 2012 robbery, Counts Eight and Nine.

Even...