Hobbs Act robbery is not a qualifying predicate under either the Career Offender Guideline or the Armed Career Criminal Act (“ACCA”). But it does count under § 924(c). This is because it can be committed “by means of actual or threatened force, or violence, or fear of injury, immediate or future, to [someone’s] person or property.” 18 U.S.C. § 1951(b)(1).
The Guideline and ACCA
“Because Hobbs Act robbery can be committed by using force against persons or property, it reaches more broadly than the Career Offender Guideline’s elements clause, [U.S.S.G. § 4B1.2(a)(1),] which is limited to offenses using force against persons.” Nunez v. United States, 954 F.3d 465, 477 n.5 (2d Cir. 2020) (Raggi, J., concurring). For the same reason, the offense is beyond the reach of ACCA’s elements clause, which is also limited to “force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i).
Also because Hobbs Act robbery can be committed by force against property, it is broader than the generic “robbery” offense enumerated in § 4B1.2(a)(2), which requires “the taking of property from another person or from the immediate presence of another person by force or by intimidation” against that person. United States v. Walker, 595 F.3d 441, 446 (2d Cir. 2010). See also id. at 447 (“[A]cts by the perpetrator that include or constitute a threat of bodily harm” are “the hallmarks of generic robbery.”). Likewise, Hobbs Act robbery is not one of ACCA’s enumerated offenses, which are “burglary, arson,  extortion,” and crimes requiring the “use of explosives.” § 924(e)(2)(B)(ii).
At least six circuits have held Hobbs Act robbery is not a Career Offender Guideline predicate. The decisions also explain why Hobbs Act robbery does not match the generic “extortion” offense enumerated in the guideline. See United States v. Green, 996 F.3d 176 (4th Cir. 2021); Bridges v. United States, 991 F.3d 793 (7th Cir. 2021); United States v. Eason, 953 F.3d 1184 (11th Cir. 2020); United States v. Rodriguez, 770 F. App’x 18 (3d Cir. 2019); United States v. Camp, 903 F.3d 594 (6th Cir. 2018); United States v. O’Connor, 874 F.3d 1147 (10th Cir. 2017).
The Second Circuit has not yet held Hobbs Act robbery is not a Career Offender Guideline predicate. And there is confusing language in a couple of rulings. In one summary order, there is a line in a footnote saying Hobbs Act robbery “qualifies as ‘crime of violence’ [sic] as a ‘robbery’ offense under the Guidelines.” United States v. Rosario, 834 F. App’x 661, 663 n.2 (2d Cir. 2021). Yet the footnote offers no analysis for that assertion, nor does it acknowledge the uniform wall of authority to the contrary from the other circuits. Similarly, there’s dictum in a two-judge opinion that Hobbs Act robbery is a “crime of violence under U.S.S.G. § 4B1.2 and § 4B1.2(a)(1) (2015 version).” Collier v. United States, 989 F.3d 212, 217 (2d Cir. 2021). Yet the authority cited for that claim is United States v. Moore, 916 F.3d 231 (2d Cir. 2019), which says nothing about Hobbs Act robbery.
The Second Circuit has also not yet held Hobbs Act robbery is not an ACCA predicate– and has also said confusing things in a non-precedential context. For example, a concurrence cites United States v. Hill, 890 F.3d 51 (2018), as “recognizing Hobbs Act robbery as crime of violence under ACCA, whose element clause references force against person or property [sic].” Nunez, 954 F.3d at 477 n.5 (Raggi, J., concurring). Yet Hill is about § 924(c), not ACCA. And unlike § 924(c), ACCA’s elements clause “is limited to offenses using force against persons.” Nunez, 954 F.3d at 477 n.5 (Raggi, J., concurring). See also § 924(e)(2)(B)(i) (limiting clause to “force against the person of another”).
Bottom line, for the reasons in the six circuit opinions above, Hobbs Act robbery is neither a Career Offender Guideline nor ACCA predicate.
Unlike the Career Offender Guideline and ACCA, the “crime of violence” definition at § 924(c)(3)(A) reaches crimes that can be committed by “force against the person or property of another.” Thus, Hobbs Act robbery is a § 924(c) predicate. See United States v. Hill, 890 F.3d 51 (2d Cir. 2018).
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