Cuthbertson: Critical Decision Regarding Hobbs Act Robbery

In Cuthbertson, the 10th circuit reversed the denial of a 2255 based on an enhanced sentence due to a prior Hobbs Act Robbery Conviction. Several courts have made decisions surrounding Hobbs Act Robbery. The cumulative effects of these decisions are the curtailing of Hobbs Act Robberies being used to enhance sentencing in some courts.

Cuthberston's Procedural History

Cuthbertson pled guilty to felon in possession of a firearm. His normal base offense level would be 14 for that. The Presentence Report listed his offense level at 20 because of a prior felony conviction for Hobbs Act Robbery, a “crime of violence” under USSG 2k2.1(a)(4). Sentencing Guideline 4B1.2 defines crime of violence as:

(a) [A]ny offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another [i.e., the elements clause], or

(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c) [i.e., the enumerated-offenses clause].

United States Sentencing Guideline 2k2.1

Cuthbertson’s counsel objected stating that Hobbs Act Robbery was not a crime of violence under 4B1.2 because it could be committed with de minimis force and does not require the use of physical force. At sentencing, he reiterated those same arguments and made no additional arguments. The court rejected these objections. The impact was Cutherbertson’s guideline range was 84-105 months instead of 46-57 months.

Later, the 10th circuit decided O’Connor, 874 F.3d 1147 (10th Cir. 2017). There, the court determined that Hobbs Act Robbery is not a Guidelines crime of violence under the elements or enumerated classes of 4B1.2(a):

“We concluded that Hobbs Act robbery is not categorically a crime of violence under the elements clause because it “criminalizes conduct involving threats to property,” id., whereas the elements clause is limited to the “use, attempted use, or threatened use of physical force against the person of another,” id. at 1150 (emphasis added). And we found that Hobbs Act robbery is not categorically a crime of violence under the enumerated-offenses clause as “robbery” because it “encompasses threats to property,” whereas “generic robbery excludes threats that are limited to property”

O’Connor, 874 F.3d 1147 (10th Cir. 2017)

These arguments were not used at Cuthbertson’s sentencing. Cuthebertson sought a 2255 claiming ineffective assistance of counsel, claiming “that crimes of violence have to involve violence against a person or that Hobbs Act [r]obbery can be committed by using violence against property.”

The district court denied the motion. Cuthbertson sought and received a Certificate Of Appealability because “trial counsel was constitutionally ineffective for failing to argue that Hobbs Act robbery categorically exceeds both the elements and enumerated-offenses clauses because it can be committed against property.” This is the court ruling on the appeal of the 2255.

Ineffective assistance of counsel and the Strickland Test

Because this is the appeal of the denial of a 2255 the court used the familiar test of Strickland vs. Washington:

To succeed on an ineffective assistance of counsel claim, Mr. Cuthbertson must satisfy the two-part test set out in Strickland. Under the first part of the test, Mr. Cuthbertson must show that trial counsel was “deficient,” i.e., that counsel's “representation fell below an objective standard of reasonableness” as measured by “prevailing professional norms...Under the second part of the Strickland test, Mr. Cuthbertson must show “prejudice,” i.e., “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”

Ineffective Assistance of Counsel and and 'Constitutionally Suspect" Statutes

Hobbs Act Robbery's inapplicability as a "crime of violence"

The court noted that their prior holdings dictated that “when the breadth of a statute was ‘constitutionally suspect,’ ‘minimally competent counsel would have recognized a likely defense based on the statute's text’ alone.” Further, “any minimally competent lawyer would then have turned to case law to determine whether the … statute's reach … had somehow [been] limited.” Id. If “no narrowing construction” is found, we concluded that “minimally competent counsel would have recognized the possibility of asserting viable defenses to culpability under the statute.”

The court indicated “that effective counsel would have recognized a likely defense to the application of the crime-of-violence enhancement based on the text of § 4B1.2(a) alone. By its very terms, Hobbs Act robbery exceeds the scope of the elements clause. Hobbs Act robbery is “fear of injury, immediate or future, to [the victim's] person or property.” 18 U.S.C. § 1951(b)(1) (emphasis added). Yet the elements clause is explicitly limited to crimes that have “as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 4B1.2(a)(1) (emphasis added). In that way, the scope of Hobbs Act robbery categorically exceeds the scope of “crimes of violence” under the elements clause.”

The government presented several types of cases that they believed undermined these arguments. The government first showed two cases that held that robbery under Colorado law satisfies the elements clause of 4B1.2 and the elements clause of the ACCA. “Yet the person/property distinction was not at issue in either case. Instead, both defendants argued that robbery under Colorado law did not satisfy the “physical force” factor of the elements clause.” The second group of cases were two Eighth Circuit decisions that sold for the idea that Hobbs Act Robbery fell within the elements clause of 18 USC 3559. “These cases, however, are neither binding nor persuasive. They are not binding because they are out-of-circuit, and they are not persuasive because they reach their holdings without much meaningful analysis and, more importantly, without any analysis whatsoever of the person/ property defense at issue here.” Lastly, the government presented cases that show that Hobbs Act Robbery qualifies as a crime of violence under the elements clause of 924(c)(3)(A). “Yet these cases also do not undermine the person/property defense. As the government itself admits, the elements clause of § 924(c) (3)(A)—unlike the elements clause of § 4B1.2(a)(1)—explicitly includes the use of force against property.”

Further, the court had to determine “whether competent counsel, after becoming aware of the person/property defense, could have reasonably chosen not to raise it.” While it is true that counsel is not required to raise every meritorious claim, here, trial counsel raised two weaker arguments as to why Hobbs Act robbery is not a crime of violence under the elements clause: “(1) that it can be committed by de minimis force, and (2) that it can be committed by threatening force that is not physical.” The court stated reasonable counsel would not have chosen to forgo the person/property defense to avoid watering down the other two weaker defenses.

Inapplicability of Hobbs Act Robbery to the "enumerated offense statute"

Cuthbertson also argued that trial counsel was deficient for failing to argue that Hobbs Act Robbery is not a crime of violence under the enumerated offenses clause because it exceeds generic robbery by extending to threats against property. The court agreed.

First the court stated that counsel oddly have looked to language in United States vs. Castillo, 811 F.3d 342 (10th Cir. 2015). In Castillo, the court acknowledged that “the weight of authority and the vast majority of state criminal codes require a threat to a person, not merely to property, to constitute robbery.” While the court in Castillo held that the robbery was a crime of violence under 4B1.2, there was a strong implication of the language on generic robbery applied only to people, NOT property. Further, counsel could have also found support in United States v. Becerril- Lopez, 541 F.3d 881 (9th Cir. 2008), a case where the Ninth Circuit concluded that robbery under California law “is broader than generic robbery [under U.S.S.G. § 2L1.2] … because it encompasses takings accomplished by a broader range of threats than would the generic offense.” (note, “As in U.S.S.G. § 4B1.2(a), one of the enumerated offenses under U.S.S.G. § 2L1.2 is robbery.”) As a result, the court stated that “effective counsel would have been
aware of this elements-clause argument” and that “effective counsel would have been aware of the person/property defense to the government's claim that Hobbs Act robbery is a crime of violence under the enumerated-offenses clause.” And like before, the court stated that “it was objectively unreasonable representation for Mr. Cuthbertson's counsel to fail to argue that Hobbs Act robbery is not generic robbery under U.S.S.G. § 4B1.2(a)(2) because it extends to threats against property.”

Again, the government argued that counsel could have reasonably chose not to raise the defense because of the generic definition of extortion and the legal theory that Hobbs Act Robbery was was a crime of violence because it fell within the enumerated offense of extortion. But the court disagreed, noting that the Sentencing Commission amended the Guidelines to include a definition of the term “extortion” to read like this:

‘Extortion’ is obtaining something of value from another by the wrongful use of (A) force, (B) fear of physical injury, or (C) threat of physical injury.”

Because of this new definition, the question of whether robbery committed by threats to property was extortion was no longer relevant.The court reasoned that as a result of this it would have been unreasonable for counsel not to raise this defense.

As a result of all of this, the 10th Circuit reasoned that Cuthbertson had shown that reasonable counsel would not have failed to argue that Hobbs Act Robbery was not a crime of violence under both the elements and enumerated-offenses clauses. This showed that he had met the first burden under the first part of the Strickland test.

Prejudice to Cuthbertson under Strickland

The Second part of the stricken test is whether the ineffective assistance prejudiced Cuthberson. The court stated that the arguments that Cuthbertson’s trial counsel omitted were meritorious when looking at the holding in O’Connor that:

““one can commit Hobbs Act robbery by threatening property alone”; and a “generic robbery is limited to the use or threat of force against a person, and thus a robbery statute that punishes the use or threat of force against property exceeds the generic robbery definition.” Because of this, there was no doubt “that the omitted arguments—on both the elements and enumerated-offenses clauses—were meritorious, and we conclude that there is a reasonable probability that raising the arguments would have altered the outcome of the proceedings. Thus, we hold that trial counsel's failure to raise them was prejudicial.”

The 10th Circuit Reversed the District Court’s denial of the 2255 motion and sent the case back down to be resentenced.

Notes: Many times, sentencing gets treated as an afterthought; something that happens after the hard work. But there are many things that can happen in sentencing that are just as important if not more. An attoreny must spend just as much time reviewing the law at punishment as they should with regard to the guilt/innocence phase.