United States District Court, D. Maine
ORDER ON DEFENDANTS' MOTION TO DISMISS
TORRESEN UNITED STATES CHIEF DISTRICT JUDGE.
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
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). 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).
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.
Third Circuit recently addressed this precise question.
Despite the defendant and government's agreement that
categorical analysis was appropriate, the Third Circuit
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)
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.
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, convictions.
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.
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. 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 requires a close look at the language of
both § 924(c) and the Hobbs Act.
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
(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.”
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,  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.
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
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 ...