SIXTH CIRCUIT HOLDS THAT HOBBS ACT ROBBERY NOT PROPER ENHANCEMENT FOR CAREER OFFENDER LEVEL GUIDELINES

In United States of America vs Desmond Camp, No. 17-1879, Camp was charged with Hobbs Act robbery, in violation of 18 U.S.C. 1951; using a firearm during a crime of violence, in violation of 18 U.S.C. 924(c); and being a felon in possession of a firearm, inviolation of 18 U.S.C. 922(g)(1). He pled guilty to all three counts. Among otherthings, the district court determined that Camp was a career offender under theSentencing Guidelines because Hobbs Act robbery was a crime of violence, andthat his two prior offenses—a 2003 federal bank robbery conviction and a 1990Michigan armed robbery conviction––were also crimes of violence. Camp appealedhis sentence, arguing that Hobbs Act robbery is not a crime of violence andcould not serve as a predicate for a 924(c) conviction or a career offenderclassification. 

The Sixth Circuit first considered
whether Hobbs Act robbery was a crime of violence under 924(c). The court
looked to United States v. Gooch, 850 F.3d 285, 292 (6th Cir. 2017), cert.
denied, 137 S. Ct. 2230 (2017), where the court held that the Hobbs Act statute
was divisible and that Hobbs Act robbery “requires a finding of actual or
threatened force, or violence, or fear of injury, immediate or future,” to
person or property. And therefore “clearly has as an element the use, attempted
use, or threatened use of physical force against the person or property of
another as necessary to constitute a crime of violence under 924(c)(3)(A).” Because
one panel cannot overrule a prior panel, Gooch foreclosed Camp’s argument that
Hobbs Act robbery does not qualify as a crime of violence under 924(c).

Next, the court considered whether
Hobbs Act robbery is a crime of violence under the U.S. Sentencing Guidelines
for career offender purposes.

Under the Guidelines, a defendant is a
career offender if:

(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction;
(2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and

(3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

The Guidelines further state that a
crime of violence is:

[A]ny offense under federal or state
law, punishable by imprisonment for a term exceeding one year, that— (1) has as
an element the use, attempted use, or threatened use of physical force against
the person of another, 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).

The court noted that “[a]lthough both
18 U.S.C. 924(c) and USSG 4B1.1(a) have a use-of-force clause, the Guidelines’
force clause is limited to force against the person, while 924(c) covers force
against person or property. “

The Hobbs Act statute provides:

Whoever in any way or degree obstructs,
delays, or affects commerce or the 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 shall be fined
under this title or imprisoned not more than twenty years, or both.

Robbery is in turn defined 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 Sixth Circuit further noted that
the Tenth Circuit had squarely addressed this issue in United States v.
O’Connor, 874 F.3d 1147 (10th Cir. 2017), where the court held that Hobbs Act
robbery is broader than the enumerated offenses of robbery and therefore fails
to qualify under the Guidelines’ use-of-force clause.

Next, the court noted that the case law
and the Guidelines support using the categorical approach for both the instant
offense (the Hobbs Act Robbery) and the prior offensess (the bank robbery and
the other armed robbery).  

The court looked at whether the Hobbs
Act robbery qualified as a crime of violence under the use-of-force clause. The
plain text of the Hobbs Act statute criminalizes robbery accomplished by using
or threatening force against “person or property.” Although this is enough
under 924(c), this is not enough to criminalize someone as a career offender
under the Guidelines. 

The court then examined whether Hobbs
Act robbery could be a categorical match under the enumerated offense clause of
4B1.2. There are two crimes that could possibly fit the statute: robbery or extortion. 

The court agreed with the Tenth Circuit
that Hobbs Act robbery reaches conduct that falls outside of generic robbery
because the statute “plainly criminalizes the ‘misappropriation of property
under circumstances’ that do not involve ‘immediate danger to the person[.]’”

Next, the court determined whether
Hobbs Act robbery could fit the enumerated offense of extortion. 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.” This does not include threats against property.  Because Hobbs Act robbery includes threats
against property, then it cannot be a categorical match with generic robbery or
extortion and is not a crime of violence.

Thus, the Sixth Circuit found that aHobbs Act robbery is not a crime of violence under the Guidelines for careeroffender purposes. Accordingly, the Sixth Circuit VACATED Camp’s sentence andremanded back to the district court. No. 17-1879

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