Hobbs Act Robbery Not a Career Offender Predicate
The Offense Conduct and Procedural History
Eason, Styles, and Lawson were all found to be career offenders under USSG 4B1.1. Eason had pled guilty to Hobbs Act Robbery and had prior convictions for robberies, strong-arm robberies, and resisting an officer with violence. Styles and Lawson were similar. Styles pled guilty to Hobbs Act Robbery and Lawson was found guilty of Hobbs Act Robbery at trial. Each was found to be a career offender. Each objected to the use of the Hobbs Act Robbery conviction as a career offender predicate. They all appealed, stating that the District Court improperly held that Hobbs Act Robbery was a crime of violence for career offender purposes.
The Eleventh Circuit's Approach
The Eleventh Circuit indicated that they would apply the categorical approach to answer this question. The categorical approach looks to the statutory definition of the offense rather than at the particular facts underlying the defendant’s conviction.
“Applying the framework to this case, we compare the scope of the conduct covered by the elements of Hobbs Act Robbery with the definitions of “crime of violence” in U.S.S.G. § 4B1.2(a). “[I]f the statute sweeps more broadly” than the § 4B1.2(a) definition, then any Hobbs Act robbery conviction “cannot count” as a crime of violence.””
The court noted that the government’s argument was that Hobbs Act robbery satisfies the elements clause definition of crime of violence. Second, the government contended that Hobbs Act Robbery qualified as the enumerated offenses of robbery and extortion.
Does Hobbs Act Robbery Meet the Definition of a Crime of Violence?
First, the court looked at whether “Hobbs Act robbery satisfie[d] the elements clause definition of crime of violence.”
The court determined that the Hobbs Act Robbery statute, 18 USC 1951(b)(1) was broader than the definition of robbery in “elements clause” of the guidelines. The court determined that “Because a person can commit Hobbs Act robbery without using, attempting to use, or threatening to use physical force “against the person of another,” Hobbs Act robbery does not satisfy the elements clause.”
18 USC 1951(a) states that “A person commits Hobbs Act robbery when he:
obstructs, delays, or affects commerce or movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section.”
1951(b)(1) defines robbery as:
the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.
The 11th Circuit has generically defined Robbery as
“[T]he taking of property from another person or from the immediate presence of another person by force or intimidation.” United States vs. Lockley, 632 F.3d 1238, 1244 (emphasis omitted) (internal quotation marks omitted). This generic form “involve[s] immediate danger to the person.” Id. at 1243
The government argued that “because Hobbs Act robbery requires that property be taken “from the person or in the presence of another, against his will,” 18 U.S.C. § 1951(b)(1), this “proximity to the victim . . . bonds the offense as an inherently violent act against a person, not merely to property.”” But the court noted that “[t]he problem with the government’s reading is that it excise[d] the words “or property” from the statute[.]” Again, 1951(b)(1) states that
“[Robbery is] the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person OR PROPERTY, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.” (emphasis mine)
The court noted that robbery was “the unlawful taking or obtaining of personal property from the person or in the presence of another . . . by means of actual or threatened force . . . to . . . the . . . property of a relative or member of his family,” with no requirement that he relative or family member be present at the time of the robbery. Indeed, the next clause—“or of anyone in (the victim's) company at the time of the taking or obtaining” covers an alternative factual scenario in which another person’s property is threatened in proximity to the victim. This caused the court to reject the government’s reading of the statute.
The government also argued that [Eason] must “cite a plausible, real-world example of a Hobbs Act robbery that could be committed without a threat to a person, with only a threat to property.” In doing so, the government cites information from United States v. St. Hubert, 909 F.3d 335, 350 (11th Cir. 2018).
The court stated that St. Hubert does not support the government’s argument that the defendants must “point to a case,” indicating that “[e]ither the text of a statute plainly reaches conduct outside a generic definition, or it does not.”
The court noted that in “In St. Hubert we required the defendant to point to a case in which a court applied the statute in the way he advocated—to robbery with fear of injury without any threat of force—because the statutory language itself did not create the realistic probability that fear of injury could exist without a threat of force. St. Hubert, 909 F.3d at 350.” But in St. Hubert, the court also acknowledged that Hobbs Act Robbery could be committed “by putting the victim in fear of injury . . . to his . . . property” by “threatening to use physical force capable of causing such injury[.]” The court indicated that in this case the defendants have met their burden to prove the statute’s over breadth without identifying real-world examples. The Government also cited Stokeling v. United States, 139 S. Ct. 544 (2019), but the 11th Circuit declined to agree that Stokeling was this persuasive.
The government also argued that “the defendants’ Hobbs Act robbery convictions qualify as crimes of violence because the Hobbs Act robbery statute is coextensive with enumerated robbery and/or extortion.”
The court compared the elements of Hobbs Act Robbery with the elements of “Robbery” and “extortion” in the guidelines. The court noted that the guidelines “define “extortion” as “obtaining something of value from another by the wrongful use of (A) force, (B) fear of physical injury, or (C) threat of physical injury.”” The court noted that the guidelines nowhere define robbery but Eleventh Circuit has defined generic robbery as “the taking of property from another person or from the immediate presence of another person by force or intimidation[ ]” in prior cases.
What Have Other Courts Done?
“Both circuits that have addressed this issue—the Sixth and the Tenth—have held that Hobbs Act robbery does not satisfy either enumerated offense or some combination of both offenses.” The Eleventh Circuit agreed here. The court indicated that “threats to property alone . . . do not necessarily create a danger to the person" and that the court cannot ignore the statutory text and construct a narrower statute than the plain language supports. The court determined that Hobbs Act Robbery was not a categorical match for the enumerated offense of robbery.
Similarly, the court determined that Hobbs Act Robbery was not a categorical match with the offense of extortion. This was because the “Guidelines’ definition of extortion excludes fear or threats of harm to property and that, because Hobbs Act robbery can be committed by a threat to property alone, it does not satisfy that definition.”
The court noted that the commission has proposed amending the “crime of violence” definition to include Hobbs Act Robbery. But “[u]ntil then, we must read the statute as it is written and interpret the Guidelines as they currently exist.” The court vacated the sentences and remanded them back down to the district court.
I’ve had a couple of requests for this case and some questions about whether this meant that 924c’s that are based on Hobbs Act Robbery could be challenged. My answer to that question is no.
Remember, the definition of “crime of violence” in 924(c)(3) is different:
(3)For purposes of this subsection the term “crime of violence” means 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.
924(c)(3)(B) was found to be unconstitutional, which is very different from what this case is discussing. Therefore I would not use this case to seek a 2255 to fight any 924(c) case that you may have pending.
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