Seventh Circuit Holds Hobbs Act Robbery Not ‘Crime of Violence’ for Career Offender Enhancement, Likely IAC for Not Anticipating Outcome
The Court’s 28-page opinion on the issue came after Jeffery Bridges pleaded guilty to four counts of Hobbs Act robbery under 18 U.S.C. § 1951 and stipulated in the plea agreement that he was a career offender. The problem, though, was that Bridges was not a career offender because Hobbs Act robbery does not qualify as a “crime of violence” under the amended career offender, nor is it a categorical match for robbery. But defense counsel missed this critical point, and Bridges filed a motion under 28 U.S.C. § 2255 to vacate his conviction. He claimed that his guilty plea was invalid because of ineffective assistance of counsel (“IAC”) because counsel failed to advise him he was, in fact, not a career offender.
Without a hearing, U.S. District Court for the Southern District of Indiana denied Bridges’ motion. The court ruled that because there was no binding case law in the circuit on Hobbs Act robbery qualifying under U.S. Sentencing Guidelines (“USSG”) § 4B1.2, as amended in 2016, counsel wasn’t obligated to anticipate that Hobbs Act robbery could not be a predicate offense for the enhancement. After all, Hobbs Act robbery had previously been used for career offender status and only after Bridges’ sentencing did public defenders begin arguing that it couldn’t be used any longer.
The question before the Seventh Circuit was two-fold: (1) whether Hobbs Act robbery no longer supported the career offender penalty and (2) whether Bridges’ counsel was ineffective for not pursuing this argument before advising him to plead guilty and stipulate that he was a career offender. As for the first question, the Court quickly joined almost every other circuit to address the issue and held that Hobbs Act robbery no longer may be used to apply the career offender penalty after the 2016 amendment.
The new definition of “crime of violence” under USSG § 4B1.2, which applied to Bridges, requires the predicate offense to have, as an element, “the use, attempted use, or threatened use of physical force against the person of another” or be one of several enumerated offenses including robbery. Hobbs Act robbery does not meet the first provision because the elements of the offense allow force against a person “or property,” the Court explained. Under the “categorical approach,” where a sentencing court analyzes only the elements of a predicate offense to determine if it’s a match for a qualifying offense, Hobbs Act robbery is overbroad because of the inclusion of property in its elements. The Court also determined that Hobbs Act robbery is not a qualifying “robbery” for the second provision, again, because of the inclusion of property. “The generic definition of robbery does not include threats of force against property,” the Court reiterated, citing numerous other circuits holding the same.
Hobbs Act robbery no longer qualifying under the career offender Guideline wasn’t enough for Bridges, however. He also had to show that his counsel was ineffective for advising him to take a plea deal that stipulated he was a career offender, when he really wasn’t, even though no binding circuit cases supported such an argument. Because negotiating a plea bargain is a critical phase of a criminal case requiring the effective assistance of counsel, the Supreme Court’s familiar two-part IAC test under Strickland v. Washington, 466 U.S. 668 (1984), applied. Bridges had to show (1) “counsel’s performance was deficient” and (2) “the deficient performance prejudiced” him.
While counsel isn’t ordinarily expected to predict changes in the law, the Court said, “in some circuits, defense counsel may be required to anticipate arguments foreshadowed but not yet adopted by existing case law.” That existing case law, the Court noted, was United States v. O’Connor, 874 F.3d 1147 (10th Cir. 2017), which held prior to Bridges’ plea negotiations that Hobbs Act robbery does not qualify under the new career offender Guideline. [Note: several other circuits have since held the same.]
“In the plea bargaining context, reasonably competent counsel will attempt to learn all of the facts of the case, make an estimate of a likely sentence, and communicate the results of that analysis before allowing his client to plead guilty,” the Court said. But here, that didn’t happen. “With modern methods of legal research, it would not have taken long in 2018 for counsel to have found the Tenth Circuit decision holding Hobbs Act robbery is not a crime of violence under the 2016 guideline amendment,” the Court said.
The Supreme Court said as much in Hinton v. Alabama, 571 U.S. 263 (2014): “An attorney’s ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland.”
The potential prejudice, the Court noted, was that the career offender penalty nearly tripled Bridges’ Guideline range. A higher Guideline range that is erroneous implicates “a reasonable probability of a different outcome,” the Supreme Court ruled in Molina-Martinez v. United States, 136 S. Ct. 1338 (2016). The district court, therefore, erred in failing to hold an evidentiary hearing.
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