Wednesday, August 3rd, 2016

An Uphill Battle

United States v. Elvin Hill, No. 14-3872-cr (Circuit Judges: Jacobs, Livingston, and Droney).(Disclosure: This is an appeal that this Office litigated).

In this direct appeal,  Mr.  Hill argued: (1)  that Hobbs Act robbery (18 U.S.C. § 1951) did not “categorically” constitute a “crime of violence” under the “force” clause of 18 U.S.C. § 924(c)(3);  and (2) that Johnson v. United States, 135 S.Ct. 2551 (2015)  applied to the residual clause of  § 924(c)(3), which is worded similarly to that of the ACCA statute — 18 U.S.C.. § 924(e)(2)(B) — and that Johnson rendered 924(c)(3)’s residual void for vagueness. Both claims were rejected by the Circuit.

The Cateqorical approach: The Circuit stated that it was applying the “categorical approach” in determining whether the predicate crime (the Hobbs Act robbery) was a “crime of violence” under §924(c).  The categorical approach looks only to the statutory definition of the predicate crime  — that is, to the  elements only. It does not look to the particular facts underlying the predicate offense. The categorical approach requires a court to consider the minimum conduct necessary for a conviction of the predicate offense (here, a Hobbs Act robbery), and then to consider whether such minimum conduct meets the definition of a crime of violence.

However, the categorical approach “‘requires more than application of the legal imagination’” to the statutory language, to show whether a predicate offense is a crime of violence.  There has to be a “‘realistic probability, not a theoretical possibility’” that the criminal statute could apply to conduct that would not be a crime of violence.  Op. at 10 (quoting Gonzales v. Duenas-Alvarez,  549 U.S. 183, 193 (2007)).

The Force clause:  The Circuit held that a Hobbs Act robbery categorically meets the definition of crime of violence under the “force” clause of § 924(c).  The force clause — of § 924(c)(3) —  requires that the predicate crime have “as an element the use, attempted use, or threatened use of force.” 18 U.S.C. § 924(c)(3).  And in the Hobbs Act,  “robbery” is 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.” 18 U.S.C. § 1951(b)(1).

The Circuit states that Hill does not dispute that 2 of the ways in which a Hobbs Act robbery can be committed, by “actual or threatened force” or “violence,” appear to satisfy § 924(c)’s force clause. Op. at 12-13.

According to the Court, the defendant focused instead on Hobbs Act robberies that could be accomplished by putting the victim in “fear of injury” to person or property. Hill argued that such fear can be instilled “without” the “‘use, attempted use, or threatened use of force’” by putting a victim “in fear of injury to his property through non-forceful means” (Op. at 13, 14-16); or by putting the victim “in fear of injury through such means, inter alia, as threatening to withhold vital medicine from the victim or to poison him.” Op. 17, 18-21.  The Court rejected these arguments. It stated that for some of the examples the defense lacked cases showing actual convictions for Hobbs Act robberies involving non-forceful means and relied on hypotheticals.  Op. at 17.

And the Opinion notes that two other Circuits agree that a Hobbs Act robbery is a  crime of violence under § 924(c). Op. at 11 & n.6,  21 (Citing cases from the Ninth and Eighth Circuits reaching a similar conclusion).

The little bit of good news is that Corey Jones appears to still be safe. The Circuit distinguished Corey Jones (United States v. Jones, No. 15-1518), which held that N.Y.’s first-degree robbery statute did not categorically qualify as a crime of violence under the Sentencing Guideline for Career Offenders (Sent’g Guidelines § 4B1.2). Op. at 21-22,  n. 13. The Circuit stated that Corey Jones concerned a distinct NY robbery statute and concluded that “Hill’s suggestion that this decision has any relevance to ours is mistaken.” Id.

The “Risk-of-force” clause (more commonly known as the “residual” clause).

The Court’s conclusion that a Hobbs Act robbery meets the requirements of  § 924(c)(3)’s “force” clause was sufficient to decide the case against Mr. Hill.  The Court, however, went on to decide whether the residual clause of § 924(c) survived Johnson.

In the Circuit’s view, the residual clause of ACCA and that of  § 924(c) are materially different.  It states they differ textually in material ways: for example, § 924(c)  refers to force in relation  to “property” as well as to persons;  ACCA’s force, however, only references people. The Circuit also found it meaningful that § 924(c) does not have the enumerated crimes provision of ACCA — ACCA’s enumerated crimes clause names 4 crimes as qualifying as violent felonies: “burglary, arson, or extortion, involves use of explosives.” 18 U.S.C. § 924(e)(2)(B). According to the Circuit, ACCA’s enumerated crimes provision was a principal cause of the unconstitutional vagueness of its residual clause.

To emphasize its view of the textual differences between the clauses of 924(c) and ACCA,  the Circuit would not use the term “residual” clause in discussing 924(c), even though  the Government and the defense had “refer[red] to § 924(c)(3)(B) as the ‘residual clause.’” Op. at 7, n. 4.  The Court calls the 924(c)’s clause the “risk-of-force” clause. And it holds that Johnson did not render the risk-of-force clause void for vagueness,  and that the clause is not void for vagueness.  Op. at 22-34.

The  Circuit acknowledges, however, that four other Circuits have gone the other way on this question. The 5th, 6th, 7th, and 9th circuits, it recognizes, “have considered the language in 18 U.S.C. § 16(b), which appears materially the same as that in 18 U.S.C. § 924(c)(3)(B), and have determined that  § 16(b) is void for vagueness after Johnson.” Op. at 32; see Op. at 32-34.  In one of those cases, Dimaya v. Lynch, 803 F.3d 225, 227 (9th Cir. 2015), the Government is seeking certiorari.

The take away: CONCEDE NOTHING. The issue of whether the residual clause of § 924(c) survives Johnson will doubtless be taken up by the Supreme Court.  And there will be further litigation on whether a Hobbs Act robbery qualifies under the “force” clause of § 924(c) as a crime of violence.

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