U.S. District Court Holds Hobbs Act Robbery not Crime of Violence for § 924(c), Grants § 2255 Motion
by Dale Chappell
The U.S. District Court for the Northern District of California granted a motion under 28 U.S.C. § 2255, holding that substantive Hobbs Act robbery is not categorically a crime of violence to support a conviction under 18 U.S.C. § 924(c).
For over two decades, Rey Chea had been challenging his convictions and sentences for Hobbs Act robbery and the four stacked § 924(c) convictions attached to those robberies. When the Supreme Court declared the residual clause of the Armed Career Criminal Act (“ACCA”) unconstitutional in Johnson v. United States, 135 S. Ct. 2551 (2015) (“JohnsonII”), the U.S. Court of Appeals for the Ninth Circuit granted him permission to file yet another § 2255 motion in district court.
While that motion was pending, the Supreme Court decided United States v. Davis, 139 S. Ct. 2319 (2019), applying Johnson II to the similar residual clause of § 924(c). When the Court found that residual clause unconstitutional, Chea’s motion was ripe for review by the district court.
In 1998, Chea was indicted for several counts of substantive Hobbs Act robbery, as well as counts of conspiracy to commit Hobbs Act robbery. Chea ended up with two separate criminal cases in the same court based on those charges, and there were a total of four § 924(c) charges attached to the robbery charges for use of a firearm in furtherance of each of the robberies.
After two jury trials, one for each case, Chea was found guilty of every charge and eventually sentenced to just over eight years total for the robberies, but the § 924(c) convictions required the court to impose five years consecutive for the first one and then 20 years for the other three § 924(c) convictions, all of them running consecutively. That bumped Chea’s sentence to just over 73 years in prison without parole.
After Chea’s appeals were exhausted, he filed multiple § 2255 motions to vacate his convictions and sentences on constitutional grounds. Those motions were all denied or dismissed, the last one being in 2012.
But then Johnson II was decided, and the Ninth Circuit granted Chea permission to file a “second or successive” § 2255 motion in his sentencing court. Actually, Chea had to file two identical applications for permission to file a motion in each of his criminal cases. A motion under § 2255 must be filed in each case being challenged, even if they are identical.
After Davis was decided, the district court ordered Chea and the Government to file additional briefing on the impact of the Supreme Court’s decision. In response, the Government raised numerous procedural defenses in an attempt to prevent the court from reaching the merits of Chea’s claims. Those defenses were all rejected by the Court.
First, the Court found that Chea’s motion was timely because it was filed within one year of Johnson II, even though the Ninth Circuit did not grant him permission to file the motion until after the Johnson II deadline had passed. The Court recognized that the Ninth Circuit had previously held that a § 924(c) claim could not be timely filed as a “new right” under Johnson II. However, Davis overturned that case law by extending Johnson II to § 924(c).
Next, the Court found that Chea’s motion was not procedurally barred. The Government had argued that Chea could not raise the § 924(c) claim under § 2255 because he had not raised it on appeal years ago. The Court acknowledged that a claim that could have been raised on appeal would normally be barred under § 2255. But claims that could not have been raised on appeal are exempt from that rule, the Court said. Chea’s § 924(c) claim did not exist at the time of his appeal, and if he had raised it, he faced a “solid wall” of case law that would have denied his claim on appeal.
Thus, “Chea’s residual-clause challenge would have been futile prior to Johnson,” the Court concluded. Chea showed “cause and prejudice” to excuse the procedural default because he was left with an unconstitutional sentence and conviction that he could not have challenged earlier, the Court explained. His § 924(c) claim “would have been futile,” the Court said.
Under § 924(c), possessing a firearm “in furtherance” of a “crime of violence” or drug trafficking crime required the district court to impose at the time of Chea’s sentencing at least five years consecutive or any sentence imposed for the robberies. And any further § 924(c) conviction required the court to “stack” the sentences.
But a “crime of violence” under § 924(c) must have met either of two criteria: (1) an offense that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another” or (2) an offense that, “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” § 924(c)(3).
The first clause is called the “elements clause,” and the second is called the “residual clause.” It was the residual clause that the Supreme Court struck as unconstitutional in Davis.
Hobbs Act robbery under 18 U.S.C. § 1951(a) is an offense that affects interstate commerce “by robbery or extortion.” The Court found that the Hobbs Act actually had two offenses: robbery and extortion. But the parties here stipulated that Chea’s offenses were all for robbery.
“Robbery” under the Hobbs Act is defined as “the unlawful taking or obtaining of personal property ... by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property.” § 1951(b)(1) [emphasis added].
The Davis Court expressly rejected that a court may look at what the defendant did in order to see if his robbery met the elements clause of § 924(c). Instead, it held that a sentencing court may only look at the statutory language of the predicate offense being attached to the § 924(c) charge. If the statutory language meets the elements clause definition, it matches. Otherwise, it doesn’t, and it cannot be used at all for a § 924(c) conviction.
Chea’s argument was that another Johnson case, Johnson v. United States, 599 U.S. 133 (2010) (“Johnson I”), which held that “physical force” under the elements clause must be “violent force — that is, force capable of causing physical pain or injury to another person,” applied also to property under § 924(c).
The district court agreed, citing that the Ninth Circuit has held as much: “The only reasonable way to apply the Johnson I standard is to require likewise that the offense involve ‘violent’ physical force against the property.” The Court concluded that putting a person in fear that his property will suffer an injury in the future does not require the use physical force. “For example, a vintage care can be injured by a mere scratch,” the Court reasoned.
“The plain language of § 1951(b)(1) clearly supports the notion that committing Hobbs Act robbery by causing fear of future injury to property does not require the use or threatened use of any physical force, much less violent physical force required by Johnson I,” the Court said.
Thus, the definition of robbery under the Hobbs Act “sweeps more broadly” than the elements clause under § 924(c) and could not be a categorical match to allow a § 924(c) conviction, the Court held.
Before closing her opinion, Judge Claudia Wilken did note that other courts have held since Johnson II that Hobbs Act robbery is a crime of violence for § 924(c) purposes under the elements clause. But she pointed out that “some of those opinions do not apply the categorical approach correctly or at all, which renders their conclusions incorrect.” She noted, for example, the Eleventh Circuit’s decision In re Fleur, 824 F.3d 1337 (11th Cir. 2016), holding Hobbs Act robbery is a conviction under § 924(c)’s elements clause because the defendant’s indictment said that he committed the robbery “by means of actual or threatened force, violence, or fear of injury.”
Davis, however, forbids a court from looking at the indictment to see how a defendant committed the offense tied to a § 924(c) charge, Wilken explained.
The Court also said that the other courts did not apply Johnson I’s definition of physical force against property. But the Ninth Circuit has held that Johnson I applies to property as well.
Accordingly, the Court granted Chea’s motions (both of them) and vacated all of his § 924(c) convictions based on Hobbs Act robbery. The Court ordered expedited briefing on what steps it should take as a remedy. See: United States v. Chea, 2019 U.S. Dist. LEXIS 177651 (N.D. Cal. 2019).
Writer’s note: The purpose of covering this U.S. district court opinion is to highlight the application of the Supreme Court’s decision in Davis requiring the categorical approach for § 924(c). Prior to Davis, courts largely applied a “conduct-specific” approach, which took into account the defendant’s actual conduct in determining whether the predicate offense fits under § 924(c). Davis expressly rejects the conduct-specific approach.
This is important because many of those post-Johnson cases applied the case-specific approach to find Hobbs Act robbery qualifies under the elements clause of § 924(c). Those cases may no longer be good after Davis and may be ripe for a post-Davis challenge.
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United States v. Chea
|Cite||2019 U.S. Dist. LEXIS 177651 (N.D. Cal. 2019)|