by Dale Chappell
In resolving a split among U.S. Courts of Appeals, the Supreme Court of the United States (“SCOTUS”) held on June 21, 2022, that an attempted Hobbs Act robbery is not categorically a crime of violence to support a separate conviction for use of a firearm under federal law. It is yet another in the Court’s line of decisions that have narrowed which offenses qualify under the harsh federal gun laws relating to current and past crimes of violence.
The events on which this case is based occurred almost 20 years ago, when Taylor and a codefendant attempted to rob a drug dealer. The dealer fought back, and the codefendant shot and killed the dealer. Taylor agreed to plead guilty to attempted Hobbs Act robbery and discharge of a firearm during a crime of violence. At the time, use of a firearm during a crime of violence under 18 U.S.C. § 924(c) broadly included an offense that “involves a substantial risk that physical force against the person or property of another may be used.” § 924(c)(3)(B). Even if Taylor’s attempted robbery didn’t involve force, the risk of force was enough to negate any challenge to the § 924(c) charge. He was sentenced to 30 years in prison, 20 for the robbery (the statutory maximum) and ten for the firearm. His appeal was barred by a waiver in his plea agreement.
After SCOTUS struck down the residual clause of the Armed Career Criminal Act (“ACCA”) as unconstitutional in Johnson v. United States, 576 U.S. 591 (2015), the Fourth Circuit granted Taylor permission to file a second of successive (“SOS”) motion under 28 U.S.C. § 2255 to challenge his § 924(c) conviction. The Supreme Court then extended Johnson to the residual clause in § 924(c) in United States v. Davis, 139 S. Ct. 2319 (2019), but the U.S. District Court for the Eastern District of Virginia denied Taylor’s motion. The court ruled that an attempted Hobbs Act robbery still qualifies under the elements or “force” clause of § 924(c). The Fourth Circuit, however, disagreed and vacated Taylor’s § 924(c) conviction. SCOTUS agreed to hear the Government’s appeal.
A Mismatch of the Elements
In order for a predicate offense, such as Taylor’s attempted Hobbs Act robbery, to qualify as a crime of violence to support a § 924(c) conviction, the offense must have “as an element, the use, attempted use, or threatened use of physical force against the person or property of another.” § 924(c)(3)(A).
A completed Hobbs Act robbery requires the Government to prove beyond a reasonable doubt that a defendant engaged in the “unlawful taking or obtaining of personal property from the person ... of another, against his will, by means of actual or threatened force.” 18 U.S.C. § 1951(b). However, attempted Hobbs Act robbery requires only two things: (1) that the defendant intended to take property by force and (2) that he took a “substantial step” toward that goal. The parties agreed, and the Court accepted in Taylor’s case, that a substantial step means an “unequivocal step,” but it “need not be violent.”
The Court said that while the Government must show an intention to use force to take property to prove an attempted Hobbs Act robbery, “an intention is just that, no more.” It also found that a substantial step does not require the actual use of force and that the Model Penal Code’s definition of robbery aligns with this finding.
The Government pressed two arguments in an effort to fit attempted Hobbs Act robbery under the elements clause. First, it offered an argument that it had successfully used to convince other Circuits to include attempted Hobbs Act robbery within the elements clause of § 924(c). It said that since completed Hobbs Act robbery qualifies as a crime of violence, then an attempt also qualifies. The District Court said as much when it denied Taylor’s motion. SCOTUS rejected this argument because the elements clause “asks whether the defendant did commit a crime of violence,” not whether there was an attempt to do so. [Emphasis added] Congress could have easily included attempted crimes of violence in the elements clause if it wanted to, but it didn’t, the Court explained.
The Government’s second argument received more attention but still failed. It argued that taking a substantial step toward completing Hobbs Act robbery amounts to a “threatened use of force” even if no actual threat is communicated either verbally or by conduct to anyone, i.e., conduct that poses an abstract risk to community peace and order even if unknown to anyone suffices. In response, the Court cited five sources defining “threat” and found it requires some form of communication. The Government’s definition, the Court said, “would vastly expand the statute’s reach” by including threats without communication, such as an incomplete offense like attempted Hobbs Act robbery. The Court warned that expanding the elements clause this far “would only wind up effectively replicating the work formerly performed by the residual clause ... and perhaps inviting similar constitutional questions along the way.”
The Elements Matter, Not the Conduct
Whether Taylor’s attempted Hobbs Act robbery could support a § 924(c) conviction has nothing to do with his conduct in the offense. The SCOTUS applied the “categorical approach” in Davis to analyze predicate offenses under § 924(c) and reaffirmed in the present case that this approach still applies. A court may not look at the defendant’s actual conduct under the categorical approach, only the elements of the offense in question, the Court explained.
To separate Taylor’s offense conduct from the analysis, the Court presented a hypothetical case of an unfortunate would-be robber who wrote a threatening note and laid out his plans in detail, only to be arrested as he set foot in the store before he could complete the robbery or even communicate any threat to anyone. He would be guilty of attempted robbery, even though he never attempted to communicate a threat, since the note was never delivered, according to the Court. “He never even got to the point of threatening the use of force against anyone or anything,” the Court said. But under the categorical approach, “no element of attempted Hobbs Act robbery requires proof that the defendant used, attempted to use, or threatened to use force,” the Court concluded.
A Defendant Need Not Prove How the Government Prosecutes Similar Crimes
The Government faulted Taylor for not providing any cases in which the Government had prosecuted someone for an attempted Hobbs Act robbery without a communicated threat, but SCOTUS said it didn’t matter.
The Government’s theory cannot be squared with the statute’s terms. To determine whether a federal felony qualifies as a crime of violence, § 924(c)(3)(A) doesn’t ask whether the crime is sometimes or even usually associated with communicated threats of force (or, for that matter, with the actual or attempted use of force). It asks whether the Government must prove, as an element of its case, the use, attempted use, or threatened use of force, the Court explained.
The Court pointed out that this is a “world where most cases end in plea agreements,” and the particulars of what the Government proved in a case would not be “easily accessible” to defendants. The Government’s proposed rule that defendants must prove how it prosecutes similar offenses is too much a of “burden,” the Court said.
The Court concluded that “to convict a defendant of attempted Hobbs Act robbery, the government does not have to prove” the use, attempted use, or threatened use of force. Thus, attempted Hobbs Act robbery does not qualify as a crime of violence for purposes of § 924(c), the Court ruled.
Accordingly, the Court affirmed the Fourth Circuit’s decision vacating Taylor’s § 924(c) conviction based on an attempted Hobbs Act robbery conviction. See: United States v. Taylor, 142 S. Ct. 2015 (2022).
Writer’s note: The Big Question seems to be whether Taylor will open the door for relief under § 2255 for § 924(c) convictions based on attempted Hobbs Act robbery. Yes, Taylor was granted relief under § 2255, but his motion was based on Johnson and Davis—and the one-year window for those cases expired long ago. I can see Taylor being available to file a first § 2255 motion. I can also see the case as grounds for a savings clause petition in those Circuits that still recognize such a remedy. In fact, because Taylor was mainly a statutory interpretation case, the savings clause would be the preferred avenue for relief, if § 2255 isn’t available. This makes the Supreme Court’s upcoming decision in Jones v. Hendrix, No. 21-857 (cert granted May 16, 2022), extremely important for anyone hoping to file a savings clause petition based on Taylor. The Court is expected to settle the deep divide among the Circuits on what qualifies for savings clause relief.
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|Cite||142 S. Ct. 2015 (2022)|