Hobbs Act Robbery Not “Crime of Violence” Under Guidelines

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In United States v. O’Connor, No. 16-3300, the Tenth Circuit found that Hobbs Act robbery was not a “crime of violence” under the Sentencing Guidelines.

O’Connor pled guilty to being a felon in possession of a firearm without a plea agreement. The presentence report indicated that O’Connor’s base offense level should be 20 based on U.S.S.G. § 2K2.1(a)(4)(A), which applies when a defendant has a prior felony conviction for a “crime of violence.” O’Connor’s prior convictions included aiding and abetting in Hobbs Act robbery, in violation of 18 U.S.C. § 1951 and 2; and aiding and abetting in the brandishing of a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) and 2. The district court agreed with Probation and the Government and held that O’Connor’s prior conviction for Hobbs Act robbery qualified as a “crime of violence.”

On appeal before the Tenth Circuit, O’Connor argued that his prior Hobbs Act robbery conviction fails to qualify as a “crime of violence” under the Guidelines. The Tenth Circuit began by looking at whether Hobbs Act robbery qualified under either the “force clause” or the “enumerated offenses clause.” Section 4B1.2 of the U.S. Sentencing Guidelines defines a crime of violence:

(a) The term “crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—

(1) has an element the use, attempted use, or threatened use of physical force against the person of another [force clause]; or

(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. 5845(a) or explosive material as defined in 18 U.S.C. 841(c). [enumerated offenses clause].

U.S.S.G. 4B1.2(a)(1)-(2).

The Government argued that because “robbery” and “extortion” are both listed in the enumerated offenses clause, Hobbs Act robbery must qualify as a crime of violence. However, the Tenth Circuit, in applying the categorical approach consistent with Descamps and Mathis, found that Hobbs Act robbery encompasses threats to property and generic robbery excludes such threats. Thus, the court concluded that Hobbs Act robbery under 18 U.S.C. § 1951 is broader than generic robbery and therefore does not categorically qualify as a crime of violence under that portion of the enumerated offenses clause.

The court then looked at the extortion statute. The court noted that Sentencing Guideline Amendment 798 noted that extortion was:

“obtaining something of value form another by the wrongful use of (i) force, (ii) fear of physical injury, or (iii) threat of physical injury.” The court ultimately found that based on the interpretations of Amendment 798, the Guidelines definition of extortion is ambiguous and thus must be interpreted in favor of O’Connor as excluding injury and threats of injury to property.

In sum, the Tenth Circuit held that “Hobbs Act robbery can be accomplished by threats to property. Both generic robbery and Guidelines extortion, as interpreted above, cannot–they are limited to conduct involving physical force or threats of physical force against a person. We thus conclude that Hobbs Act robbery under 1951(b)(1) does not categorically qualify as a crime of violence under the enumerated offense clause of the Guidelines.”

Turning to the force clause, the court held that “[b]ecause Hobbs Act robbery criminalizes conduct involving threats to property, it does not qualify as a crime of violence under the Guidelines’ force clause.

The court’s analysis concluded that Hobbs Act robbery fails to categorically qualify under either the force clause or enumerated offense clause of U.S.S.G. § 4B1.2, and cannot be used to enhance a sentence under U2K2.1(a)(4)(A). The Tenth Circuit vacated O’Connor’s sentence and remanded to the district court for re-sentencing.

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