This month two circuits held, respectively, that offenses cannot serve as predicates under the Career Offender Guideline or the Armed Career Criminal Act (ACCA) because they can involve force against property as well as against persons.
The Tenth Circuit held that robbery under the Hobbs Act, 18 U.S.C. § 1951, is not a crime of violence under the Career Offender Guideline (COG), U.S.S.G. § 4B1.2. See United States v. O’Connor. The enumerated clause of the COG identifies “robbery” as a crime of violence. The Tenth Circuit held that the elements of this generic offense include the use or threatened use of force against a person, but not against property. Hobbs Act robbery, by contrast, can involve “actual or threatened force, or violence, or fear of injury, immediate or future, to . . . [a] person or property.” 18 U.S.C. § 1951(b)(1) (emphasis added). The COG’s definition of robbery therefore does not cover robbery under the Hobbs Act. For good measure, the court also decided that Hobbs Act robbery does not qualify as “extortion” under the COG’s enumerated clause because, as defined under a 2016 Guideline amendment (Amendment 798), the latter offense cannot be accomplished by making threats against property. Finally, the court easily decided that Hobbs Act robbery does not qualify as a crime of violence under the Career Offender Guideline’s force clause, which speaks only to offenses that have “as an element the use, attempted use, or threatened use of physical force against the person of another. U.S.S.G. § 4B1.2(a)(1) (emphasis added).
The Eight Circuit, meanwhile, held that an offense under 18 U.S.C. §924(c) is not a “violent felony” for purposes of the ACCA, 18 U.S.C. § 924(e).* See United States v. Boman. Section 924(c)(1) criminalizes (a) the use or carrying of a firearm (b) during and in relation to a crime of violence or drug trafficking crime. The Boman court held that the second of these elements is divisible, and relied on the defendant’s indictment to conclude that his predicate § 924(c) conviction was a crime of violence (rather than a drug trafficking crime). Significantly, however, the court decided that § 924(c)(3)’s definition of “crime of violence” is indivisible. The categorical approach therefore governs whether a § 924(c) violation is a “violent felony” for purposes of the ACCA. The court then identified offenses that would qualify as a predicate crime of violence under § 924(c)’s residual clause, but not as a “violent felony” under the ACCA’s force clause. (The Eighth Circuit, like the Second, has rejected a constitutional vagueness challenge to § 924(c)’s residual clause notwithstanding Johnson II. See United States v. Prickett, 839 F.3d 697, 699 (8th Cir. 2016) (per curiam); United States v. Hill, 832 F.3d 135, 145-50 (2d Cir. 2016)). Additionally, the Boman court recognized that § 924(c)’s force clause and residual clause both define “crime of violence” to include force against the “property of another”. Id. § 924(c)(3). The ACCA’s force clause, by contrast, defines “violent felony” only in terms of “physical force against the person of another.” Id. § 924(e)(2)(B)(i). Accordingly, the court concluded that “§ 924(c)’s definition of crime of violence is not divisible . . . and a conviction for the use of a firearm during and in relation to a crime of violence is not an ACCA predicate offense under the categorical approach.” Slip op. at 10. On plain error review, the court reversed and remanded for resentencing.
Thanks to our colleagues at the Sentencing Resource Counsel Project for drawing attention to these decisions.
*More precisely, the court held that a conviction under an earlier version of § 924(c) cannot serve as a predicate conviction under the ACCA. In 1998, subsequent to the defendant’s conviction in Boman, the statute was expanded to criminalize the possession of a firearm “in furtherance of” a crime of violence or drug trafficking crime. The Boman court’s analysis appears to apply with equal weight to the current version of § 924(c). Indeed, the opinion uses the statute’s “in furtherance of” language when offering examples of violations of § 924(c) that do not qualify as violent felonies under the ACCA. See slip op. at 9-10 (analyzing conspiracy to commit murder for hire).