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United States v. Hernandez

United States District Court, D. Maine

January 11, 2017

UNITED STATES OF AMERICA,
v.
MARCOS HERNANDEZ, et al., Defendants.

          ORDER ON DEFENDANTS' MOTION TO DISMISS

          NANCY TORRESEN UNITED STATES CHIEF DISTRICT JUDGE.

         The Grand Jury returned an indictment charging the Defendants with conspiracy to commit a Hobbs Act robbery in violation of 18 U.S.C. § 1951(a) (Count One); Hobbs Act robbery in violation of 18 U.S.C. §§ 2, 1951(a) (Count Two); and brandishing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. §§ 2, 924(c)(1)(A)(ii) (Count Three). (ECF No. 1). The Defendants move to dismiss Count Three on the grounds that conspiracy to commit Hobbs Act robbery and Hobbs Act robbery do not constitute crimes of violence as defined in § 924(c)(3). (ECF No. 121). For the following reasons, the motion is DENIED.

         METHOD OF ANALYSIS

         In the parties' initial briefing, both sides assumed that a categorical analysis of the Hobbs Act was required. To perform a categorical analysis, I am required to identify the minimum criminal conduct necessary for conviction under the predicate offense's statutory elements without regard to the underlying facts in the case. United States v. Acosta, 470 F.3d 132, 135 (2d Cir. 2006).[1] If a Hobbs Act robbery could be committed without “the use, attempted use, or threatened use of physical force against the person or property of another, ” then the crime categorically is not a crime of violence for purposes of § 924(c)(3)(A).

         At oral argument, I invited the parties to address whether it made sense to use a categorical approach in the context of a motion to dismiss a § 924(c) count of an indictment. It seemed strange to perform the categorical analysis for a count that is heading to trial. Both parties pointed me to a First Circuit opinion holding that it was not error to instruct a jury that the predicate crimes of tampering with and retaliating against an informant were, as a matter of law, crimes of violence for purposes of § 924(c). See United States v. Weston, 960 F.2d 212, 217 (1st Cir. 1992) abrogated on other grounds by Stinson v. United States, 508 U.S. 36 (1993). While the First Circuit did not use the term “categorical” in Weston, the parties nonetheless believe that categorical analysis is required.

         The Third Circuit recently addressed this precise question. Despite the defendant and government's agreement that categorical analysis was appropriate, the Third Circuit resisted:

We do not agree that the categorical approach applies here. When the predicate offense, Hobbs Act robbery, and the § 924(c) offense are contemporaneous and tried to the same jury, the record of all necessary facts [are] before the district court. The jury's determination of the facts of the charged offenses unmistakably shed[s] light on whether the predicate offense was committed with “the use, attempted use, or threatened use of physical force against the person or property of another.”

United States v. Robinson, No. 15-1402, 2016 WL 7336609, at *3 (3rd Cir. Dec. 19, 2016). In addition to Robinson, a number of lower courts have pointed out that categorical analysis does not make much sense in the case of a contemporaneously charged § 924(c) count.[2]

         This growing consensus is based on the origins and purposes behind categorical analysis. The categorical approach was designed to guide courts in determining whether a predicate offense constitutes a crime of violence for the purposes of fashioning an appropriate sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”). Taylor v. United States, 495 U.S. 575 (1990). At issue in Taylor was whether the defendant's two prior state burglary convictions should be considered violent felonies under ACCA. The Supreme Court unanimously held that to determine whether the burglaries qualified, the sentencing court could look only to the conviction and the statutory definition of the offense, not to the underlying facts involved in the particular offense.

         In reaching this conclusion, the Taylor Court focused on three factors. First, the Court noted that “[s]ection 924(e)(1) refers to ‘a person who . . . has three previous convictions' for-not a person who has committed-three previous violent felonies or drug offenses.” Id. at 600. The Court interpreted this text as congressional intent to focus on the category of the conviction, not the underlying facts. See Id. Second, the legislative history of ACCA suggested that a categorical approach was intended. “If Congress had meant to adopt an approach that would require the sentencing court to engage in an elaborate factfinding process regarding the defendant's prior offenses, surely this would have been mentioned somewhere in the legislative history.” Id. at 601. Third, the Court pointed out “the practical difficulties and potential unfairness of a factual approach.” Id. The Court was concerned that facts not found by a jury would be used to enhance the Defendant's sentence and envisioned the practical difficulties of determining the factual basis for a defendant's past, potentially old, [3]convictions. Id.

         The Supreme Court has repeatedly restated the rationale for using categorical analysis under ACCA. See Mathis v. United States, 136 S.Ct. 2243, 2252-53 (2016); Descamps v. United States, 133 S.Ct. 2276, 2287 (2013). The categorical approach has been refined, Shepard v. United States, 544 U.S. 13 (2005) (applying categorical analysis to a defendant entering a plea instead of having a trial) and extended to other statutes and guidelines. See Moncrieffe v. Holder, 133 S.Ct. 1678, 1684 (2013) (using categorical analysis to determine whether a crime is an aggravated felony under the Immigration and Nationality Act); Leocal v. Ashcroft, 543 U.S. 1, 9-11 (2004) (applying categorical analysis under definition of crime of violence in 18 U.S.C. § 16); Stinson, 508 U.S. at 39 (applying categorical analysis under the career offender guideline, U.S.S.G. § 4B1.1). All these applications involve a backward look at a prior conviction.

         The reasons used to support categorical analysis in Taylor do not fit the § 924(c) context. First, the text of § 924(c), which uses the term “offense, ” is different than that of § 924(e), which speaks in terms of “previous convictions.” Second, the elaborate fact-finding process that Taylor was concerned about is not going to pose the same problems in a contemporaneously charged § 924(c) offense. The government must plead and prove the § 924(c) count beyond a reasonable doubt to a jury, or the defendant must admit a factual basis for a plea, so there are no fairness or Sixth Amendment concerns.[4] Finally, there are no concerns about having to relitigate the factual basis for old convictions or rely on old, possibly inaccurate recitations of fact. Rather, there will either be “a live case where fresh evidence will be presented to a jury, ” United States v. Woodley, No. 15-cr-20007, 2015 WL 7770859, at *4 (E.D. Mich. Dec. 5, 2015), or a guilty plea that will be based on an adequate factual basis to demonstrate whether the way in which the crime was committed had the requisite use of physical force. Despite the agreement of the parties to the contrary, I conclude that categorical analysis is not appropriate here and would deny the motion to dismiss on that basis alone. But, out of an abundance of caution and because it does not affect the outcome, I will conduct the categorical analysis.

         DISCUSSION

         I. Statutory Background

         The categorical analysis requires a close look at the language of both § 924(c) and the Hobbs Act.

         A. Using or Carrying a Firearm During a Crime of Violence, 18 U.S.C. § 924(c)

Under § 924(c),
any person who, during and in relation to any crime of violence . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence . . . if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years . . . .

18 U.S.C. § 924(c)(i)(A), (ii). The term “crime of violence” as used in §924(c) means:

an offense that is a felony and-
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 924(c)(3)(A)-(B). Section 924(c)(3)(A) is commonly referred to as the “force clause, ” and § 924(c)(3)(B) as the “residual clause.”

         The parties have not pointed to a Supreme Court or First Circuit case defining the term “physical force” under § 924(c)(3). In Johnson v. United States, the Supreme Court defined the term “physical force” for purposes of ACCA as “violent force . . . capable of causing physical pain or injury to another person.” 559 U.S. 133, 140 (2010) (“Johnson I”). Here, the parties agree that the Johnson I definition of physical force applies. It is not clear to me that § 924(c)(3) requires violent force, [5] but I will accept the Government's concession, at least as it is applied to the portion of § 924(c)(3) that deals with physical force against the person of another.

         Whether the residual clause under § 924(c)(3) is still valid is an open question in this Circuit. In United States v. Johnson, the Supreme Court held that a similar, but not identical, residual clause of ACCA was unconstitutionally vague. 135 S.Ct. 2551 (2015) (“Johnson II”).

         B. The Hobbs Act, 18 U.S.C. § 1951

The Hobbs Act provides that:
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 to do so, 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 ...

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