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The Habeas Citebook: Prosecutorial Misconduct

Eleventh Circuit Holds Hobbs Act Robbery Doesn’t Trigger Career Offender Enhancement

The U.S. Court of Appeals for the Eleventh Circuit held on March 24, 2020, that substantive Hobbs Act robbery is “too broad” and doesn’t qualify to require a sentencing enhancement under the career offender provision of the United States Sentencing Guidelines (“USSG”).

In a consolidated direct appeal by three defendants from the U.S. District Court for the Southern District of Florida, the question before the Eleventh Circuit was whether substantive Hobbs Act robbery (and not conspiracy to commit Hobbs Act robbery) meets the definition of a “crime of violence” under the USSG to apply a career offender enhancement to each defendant. All three argued that Hobbs Act robbery cannot support a career offender sentence because it includes violence toward property, as well as persons, which falls outside the career offender definition requiring violence toward only a person.

Under USSG § 4B1.1(a), a person may be sentenced as a career offender if (1) he is at least 18 at the time of the instant offense, (2) the instant offense is a “crime of violence” or “controlled substance offense,” and (3) he has at least two prior felony convictions for either a crime of violence or controlled substance offense. The term “crime of violence,” at issue here, is defined under § 4B1.2 as any offense punishable by more than a year that either “has an element the use, attempted use, or threatened use of physical force against the person of another” or is one of the enumerated offenses in the guideline, which includes “robbery.” [Writer’s note: The text of the Armed Career Criminal Act (“ACCA”) is exactly the same as § 4B1.2, which suggests the Court’s reasoning in this case would seemingly apply equally to ACCA cases with Hobbs Act robbery as a predicate offense.]

Hobbs Act robbery is defined for purposes of this appeal as an act by someone who “commits or threatens physical violence to any person or property in furtherance of” committing a robbery. “Robbery,” in turn, 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 ... to his person or property.” 18 U.S.C. § 1951(a), (b). Clearly, the “or property” language was crucial to this appeal.

The Eleventh Circuit began by recognizing that other courts have held that Hobbs Act robbery is not a crime of violence for the career offender guideline, because it extends to violence toward property as well as persons. Under the familiar categorical approach, the Court said it looks only to the language of the statute and not to what the defendants actually did. The Court then compared the elements of the Hobbs Act robbery statute to the definition of crime of violence in the career offender guideline. If the statute “sweeps more broadly” than the guideline definition, it does not count for the career offender enhancement. [Writer’s note: The Supreme Court ruled in United States v. Davis, 139 S. Ct. 2319 (2019), that the categorical approach also applies even when the predicate conviction is also before the court as the instant offense, as it was in this case.]

Hobbs Act robbery can be committed with threats of violence to person or property, the Court noted. “Because a person can commit Hobbs Act robbery without using, attempting to use, or threatening to use physical force against the person of another, Hobbs Act robbery does not satisfy the elements clause” of the career offender guideline, the Court concluded. In short, Hobbs Act robbery sweeps too broadly to match the career offender guideline.

The Government raised numerous arguments, which the Court addressed in turn, and rejected in turn. First was the argument that because Hobbs Act robbery requires the act to be done in close proximity to the victim, it is “inherently violent.” The Court said the Government’s argument ignored the “or property” language, and the unlawful taking isn’t just about proximity but also requires “by means of actual or threatened force” to property as well.

Second, the Government argued that the Court had previously held in United States v. St. Hubert, 909 F.3d 335 (11th Cir. 2018), that Hobbs Act robbery is a “crime of violence” for 18 U.S.C. § 924(c), and that the defendants could not show a history that Hobbs Act robbery had been applied to only the “property” provision of the statute. The Court, again, reminded that the “or property” language in the statute mattered: § 924(c) includes the “or property language in its definition of crime of violence. And the Court concluded that the defendants did not need to point to a Hobbs Act robbery conviction under only the property provision because the Hobbs Act robbery statute itself expressly includes violence to property in the offense. “We cannot ignore the statutory text and construct a narrower statute” for the Government’s sake, the Court said.

The Government’s third argument, that the Supreme Court’s decision in Stokeling v. United States, 139 S. Ct. 544 (2019), which held that Florida robbery is a crime of violence for the ACCA, also supports Hobbs Act robbery as a crime of violence for the career offender guideline. The Court acknowledged that Florida robbery qualifies but only because it requires the use of force against a person, not property. Again, the Government ignored the “or property” language of Hobbs Act robbery that is missing from the career offender guideline.

The Government’s fourth attempt to save Hobbs Act robbery under the career offender guideline was an argument that “robbery” is one of the enumerated offenses under § 4B1.2 and thus counts. While it is named in the guideline, the Court said that “We disregard the label on a crime” in determining whether it qualifies as an enhancement offense. The guidelines do not define “robbery,” but the Court has defined it in other cases as violence only toward a person. “Thus, Hobbs Act robbery is not a categorical match for the enhancement offense of robbery.”

The final argument by the Government, and one that got the most attention from the Court, was that Hobbs Act robbery should qualify for the career offender guideline because the U.S. Sentencing Commission is talking about amending the career offender guideline to include Hobbs Act robbery. Therefore, the Government said, the Court should not hesitate to create a “circuit split” by being the first to apply the proposed change. The Court disagreed. While the commission “appears to be in the process” of changing the career offender guideline to include Hobbs Act robbery, “we nevertheless must stick to the plain text of the Hobbs Act robbery statute and the guidelines.”

Accordingly, the Court concluded that Hobbs Act robbery does not qualify as a “crime of violence” under the career offender guideline and vacated the defendants’ sentences. See: United States v. Eason, 953 F.3d 1184 (11th Cir. 2020).

Related legal case

United States v. Eason

 

 

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