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Disciplinary Self-Help Litigation Manual
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Eleventh Circuit: Conspiracy to Commit Hobbs Act Robbery not a Crime of Violence Under 18 U.S.C. § 924(c)

by Douglas Ankney

The U.S. Court of Appeals for the Eleventh Circuit held that conspiracy to commit Hobbs Act robbery is not a crime of violence as defined by 18 U.S.C. § 924(c)(3).

In 2014, Michael Brown pleaded guilty to conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951(a) and to using a firearm during a crime of violence in violation of 18 U.S.C. 924(c)(1)(A) with the understanding that the “crime of violence” was the conspiracy to commit Hobbs Act robbery. The district court imposed 30 months of imprisonment for the conspiracy conviction and a consecutive sentence of 60 months’ imprisonment for the firearm conviction.

In May 2016, Brown filed a 28 U.S.C. § 2255 motion to vacate his conviction and sentence, arguing that, in light of Johnson v. United States, 135 S. Ct. 2551 (2015), his conviction for conspiracy to commit Hobbs Act robbery no longer qualified as a crime of violence as defined by § 924(c)(3) to support his firearm conviction under § 924(c)(1)(A). The district court denied Brown’s motion, and he appealed.

The Eleventh Circuit observed that Davis v. United States, 139 S. Ct. 2319 (2019), had been decided while Brown’s appeal was pending. Davis struck down the residual clause of § 924(c)(3) as unconstitutionally vague. Consequently, Brown’s conviction for use of a firearm during a crime of violence could stand only if the conspiracy to commit Hobbs Act robbery is a crime of violence as determined by the elements clause of § 924(c)(3). Under that clause, a crime of violence requires either the use, or the threatened use, of physical force.

When making this determination, the court uses the categorical approach, which means the court does not look at the defendant’s actual conduct but instead examines the elements of the statute under which he was convicted. United States v. St. Hubert, 909 F.3d 335 (11th Cir. 2018). Under that approach, the court looks to see if the statutory elements of the predicate offense require either the threatened use of force or the attempted use of force. Id.

The elements of conspiracy to commit Hobbs Act robbery are (1) two or more people, including the defendant, agree to commit Hobbs Act robbery (2) with the defendant knowing of the conspiratorial goal and (3) the defendant voluntarily participating in furthering that goal. United States v. Ransfer, 749 F.3d 914 (11th Cir. 2014).

Because none of those elements require the use or threatened use of physical force, conspiracy to commit Hobbs Act robbery is not a crime of violence as defined by § 924(c)(3). Therefore, Brown’s conviction for using a firearm during a crime of violence could not stand.

Accordingly, the Court reversed the district court’s denial of Brown’s § 2255 motion and remanded for resentencing. See: Brown v. United States, 942 F.3d 1069 (11th Cir. 2019).

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Brown v. United States

 

 

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