Hobbs Act Robbery NOT Proper Enhance for Career Offender

The Sixth Circuit found that a Hobbs Act robbery is not a crime of violence under the Guidelines for career offender purposes.

Taking a Closer Look

In United States of America vs Desmond Camp, No. 17-1879, Camp was charged with:

• 1. Hobbs Act robbery, in violation of 18 U.S.C. 1951;
• 2. using a firearm during a crime of violence, in violation of 18 U.S.C. 924(c);
• 3. and being a felon in possession of a firearm, inviolation of 18 U.S.C. 922(g)(1).
•  
• He pled guilty to all three counts. Among other things, the district court determined that Camp was a career offender under the sentencing guidelines because Hobbs Act robbery was a crime of violence. This added to his two prior offenses as crimes of violence. Camp appealed his sentence, arguing that Hobbs Act robbery is not a crime of violence and could not serve as a predicate for a 924(c) conviction or a career offender classification. 

Court Considers the Career Offender and Crime of Violence

The Sixth Circuit first considered whether Hobbs Act robbery was a crime of violence under 924(c). The court looked to United States v. Gooch, 850 F.3d 285, 292 (6th Cir. 2017), cert. denied, 137 S. Ct. 2230 (2017), where the court held that the Hobbs Act statute was divisible. Also, Hobbs Act robbery “requires a finding of actual or threatened force, or violence, or fear of injury, immediate or future,” to person or property.

Therefore the presence statute requires “clearly has as an element the use, attempted use, or threatened use of physical force against the person or property of another as necessary to constitute a crime of violence under 924(c)(3)(A).” Because one panel cannot overrule a prior panel, Gooch foreclosed Camp’s argument that Hobbs Act robbery does not qualify as a crime of violence under 924(c).

Specifics on Career Offender

Next, the court considered whether Hobbs Act robbery is a crime of violence under the U.S. Sentencing Guidelines for career offender purposes.

Under the Guidelines, a defendant is a career offender if:

(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction;
(2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and
(3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

The Guidelines further state that a crime of violence is:

[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, 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).

The court noted that “[a]lthough both 18 U.S.C. 924(c) and USSG 4B1.1(a) have a use-of-force clause, the Guidelines’ force clause is limited to force against the person, while 924(c) covers force against person or property. “

Taking a Look at Robbery and Crimes of Violence

The Hobbs Act statute provides:

Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.

Robbery is in turn 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, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.

The Sixth Circuit further noted that the Tenth Circuit had squarely addressed this issue in United States v. O’Connor, 874 F.3d 1147 (10th Cir. 2017), where the court held that Hobbs Act robbery is broader than the enumerated offenses of robbery, Therefore the case fails to qualify under the Guidelines’ use-of-force clause.

Next, the court noted that the case law and the Guidelines support using the categorical approach for both the instant offense (the Hobbs Act Robbery) and the prior offensess (the bank robbery and the other armed robbery).  

The court looked at whether the Hobbs Act robbery qualified as a crime of violence under the use-of-force clause. The plain text of the Hobbs Act statute criminalizes robbery accomplished by using or threatening force against “person or property.” Although this is enough under 924(c), this is not enough to criminalize someone as a career offender under the Guidelines. 

The court then examined whether Hobbs Act robbery could be a categorical match under the enumerated offense clause of 4B1.2. There are two crimes that could possibly fit the statute: robbery or extortion. 

The court agreed with the Tenth Circuit that Hobbs Act robbery reaches conduct that falls outside of generic robbery because the statute “plainly criminalizes the ‘misappropriation of property under circumstances’ that do not involve ‘immediate danger to the person[.]’”

Offense of Extortion

Next, the court determined whether Hobbs Act robbery could fit the enumerated offense of extortion. The Guidelines define extortion as: “obtaining something of value from another by the wrongful use of

(A) force,

(B) fear of physical injury, or

(C) threat of physical injury.”

This does not include threats against property.  Because Hobbs Act robbery includes threats against property, then it cannot be a categorical match with generic robbery or extortion and is not a crime of violence.

Accordingly, the Sixth Circuit VACATED Camp’s sentence and remanded back to the district court.

For more information on this and other Hobbs Act issues, reach out to our office with questions about your specific case.  The Law Office of Jeremy Gordon is a team dedicated to supporting you, your loved ones and the pursuit of relief in the criminal justice system.