CATEGORICALLY INSUFFICIENT: THE U.S. SUPREME COURT MUST FIND ATTEMPTED HOBBS ACT ROBBERY IS NOT A “CRIME OF VIOLENCE” UNDER 18 U.S.C. § 924(c)(3)(A).

By: Michael Van Ryn, Volume 106 Staff Member

In United States v. Taylor, the U.S. Supreme Court is presented with the question of whether an attempted robbery in violation of the Hobbs Act qualifies as a “crime of violence” under 18 U.S.C. § 924(c)(3)(A).[1] The Supreme Court should find that it is not a crime of violence under § 924(c)(3)(A) because the Court must apply the categorical approach and the minimum conduct required to sustain a conviction for Hobbs Act robbery does not require the use, attempted use, or threatened use of physical violence.

I. BACKGROUND

The Hobbs Act is a federal statute which prohibits robbery or extortion that affects interstate or foreign commerce.[2] Hobbs Act robbery is 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.”[3] Section 924(c) is a sentence enhancement statute that requires mandatory minimum sentences for individuals who use, carry, or possess a firearm in the commission of a crime of violence.[4] If Hobbs Act robbery is determined to be a crime of violence under § 924(c)(3), individuals convicted of Hobbs Act robbery will be subject to the mandatory minimum sentences imposed by § 924(c).

In Taylor, the defendant was involved in a conspiracy to rob Martin Sylvester during a sale of marijuana.[5] Taylor directed Sylvester to an alleyway, where his coconspirator would complete the robbery.[6] The coconspirator was armed with a pistol and fatally shot Sylvester when he refused to give up his money.[7] Taylor appealed to have his conviction of attempted Hobbs Act robbery vacated and requested resentencing.[8] The Fourth Circuit vacated Taylor’s sentence, finding that attempted Hobbs Act robbery is not as a crime of violence.[9] Those unfamiliar with § 924(c)(3)(A) might be puzzled as to why there is any question as to whether Taylor’s attempted robbery was a crime of violence under any definition of the phrase given that a man was fatally shot.

II. THE SUPREME COURT MUST APPLY THE CATEGORICAL APPROACH TO SENTENCING ENHANCEMENT UNDER § 924(c)

The determination of whether an offense constitutes a crime of violence under 18 U.S.C. § 924(c)(3)(A) requires courts to take the “categorical approach.”[10] This means the courts must look to the elements of the offense rather than the facts of the underlying conviction.[11] When analyzing the elements of the offense, courts focus on the “minimum conduct required” to sustain a conviction.[12] For example, consider the hypothetical crime of burglary with the following elements: (1) entering a building without consent (2) with the intent to steal. This is not a crime of violence under the categorical approach even if the individual broke down the front door and destroyed half of the victim’s property in the home. The minimum conduct required to sustain a conviction under this hypothetical crime does not necessarily involve the use of such violence; it requires only entering the building with the intent to steal.

The categorical approach was initially generated in the context of 18 U.S.C. § 924(e) which involves enhanced sentencing based upon prior convictions.[13] The question concerning whether the categorical approach was appropriate for § 924(c)(3) was presented to the Supreme Court in United States v. Davis.[14] In Davis, the Court determined § 924(c)(3)(B) to be unconstitutionally vague.[15] In reaching that decision, the Supreme Court, split 5–4, held that the categorical approach was what Congress intended to be used for determinations of what constitutes a crime of violence under § 924(c)(3).[16] Justice Kavanaugh authored the dissent, centering his argument on the considerations involved with sentence enhancement for prior convictions, namely re-litigation of past convictions and Sixth Amendment concerns, and their irrelevance in sentence enhancement for current-offense conduct.[17] He argued that while the categorical approach was appropriate under § 924(e), it did not make sense to use it for § 924(c)(3).[18] The majority nonetheless determined the categorical approach to be appropriate based upon the “generic” meaning of the word offense in the statute, the fact a case-specific approach would “make a hash of the federal criminal code,” and that Congress enacted the law on the premise that a similar provision in § 16(b) required a categorical analysis.[19] Thus, Congress intends the Courts to use the categorical approach.

The categorical approach opens the door for unjust results. Here, Taylor may escape the mandatory minimums imposed by § 924(c)(3) despite the fact his actions led to a man being fatally shot. Another individual who commits a much less violent act but is convicted of a crime that is categorically a “crime of violence” will be subject to the minimums imposed by § 924(c)(3). These inequitable results are typically frowned upon in the judicial system and it calls into question whether the categorical approach is appropriate for the determination of what constitutes a crime of violence under § 924(c)(3). Although I agree with Justice Kavanaugh’s assessment of the sensibility of the categorical approach when reviewing current-offense conduct, the Judiciary must respect Congress’s legislative role and avoid “unnecessarily disturbing a law apart from invalidating the provision that is unconstitutional.”[20] The importance of the preservation of the separation of powers is well-known. The Supreme Court must not overstep its constitutional limits and must continue to use the categorical approach when applying § 924(c)(3), despite its shortcomings.

III. THE CIRCUIT SPLIT

The Fourth Circuit stands alone in determining that attempted Hobbs Act robbery is not a “crime of violence.” The Third, Seventh, Ninth, and Eleventh circuits have held that attempted Hobbs Act robbery constitutes a crime of violence under § 924(c). They reached this conclusion on the basis that when a substantive offense would be a violent felony under § 924(e), an attempt to commit that offense is also a violent felony.[21] As the Taylor court notes, this presumes that an attempt to commit a crime of violence necessarily constitutes an attempt to use physical force, which is simply not true.[22]

IV. ANALYSIS

Attempted Hobbs Act robbery consists of two elements: 1) the defendant had the required intent to commit Hobbs Act robbery, and 2) the defendant took a substantial step to complete the robbery that strongly corroborates the intent element.[23] A substantial step is a “direct act in a course of conduct planned to culminate in commission of a crime that is strongly corroborative of the defendant’s criminal purpose.”[24] Therefore, an individual who intends to take another’s property under the threat of physical force and commits an act that strongly corroborates that intent to threaten physical force is guilty of attempted Hobbs Act robbery. The minimum conduct needed to meet the substantial step standard does not necessarily involve the use, attempted use, or threatened use of physical force. This is where courts have frequently gotten the question wrong, looking to the usual conduct rather than the minimal conduct.[25] There is still one more hurdle to jump: there must be a “realistic possibility, not a theoretical possibility, that a state would actually punish that conduct.”[26] The State would likely seek to punish an individual who plans to threaten physical force in commission of a robbery and is caught just prior carrying the plan out. Thus, attempted Hobbs Act robbery is not a crime of violence as defined in the statute.

V. CONCLUSION

While there may be some debate as to whether the categorical approach is in line with common sense, there is no debate as to whether it is the law which governs. As such, the Supreme Court ought to affirm the Fourth Circuit’s decision in Taylor and hold that Hobbs Act robbery is not a crime of violence under § 924(c)(3)(A) because doing otherwise would be in violation of its constitutional role. The ills of the categorical approach must be addressed by Congress, not the courts.

 

[1] United States v. Taylor, 979 F.3d 203 (4th Cir. 2021), cert. granted, 141 S. Ct. 2882 (U.S. July 2, 2021) (No. 20-1459).

[2] 18 U.S.C. § 1951

[3] 18 U.S.C. § 1951(b)(1).

[4] 18 U.S.C. § 924(c)(1)(A).

[5] Taylor, 979 F.3d at 205.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Descamps v. United States, 570 U.S. 254, 258 (2013).

[11] Id.

[12] United States v. Doctor, 842 F.3d 306, 308 (4th Cir. 2016).

[13] Taylor v. United States, 495 U.S. 575, 576–77 (1990).

[14] 139 S. Ct. 2319 (2019).

[15] Id.

[16] Id. at 2328.

[17] Id. at 2342–45 (Kavanaugh, J., dissenting).

[18] Id.

[19] Id. at 2328–31.

[20] Barr v. American Association of Political Consultants, 120 S. Ct. 2335, 2351 (2020).

[21] United States v. Walker, 909 F.3d 316, 326–28 (3d Cir. 2021); United States v. Ingram, 947 F.3d 1021, 1026 (7th Cir. 2020); United States v. Dominguez, 954 F.3d 1251, 1261 (9th Cir. 2020); United States v. St. Hubert, 909 F.3d 335, 351 (11th Cir. 2018).

[22] United States v. Taylor, 979 F.3d 203, 208 (4th Cir. 2021).

[23] See United States v. Engle, 676 F.3d 405, 419–20 (4th Cir. 2012).

[24] Id. at 423.

[25] See, e.g., Crowder v. United States, No. 05 CR 67-02 (CM), 2019 WL 6170417, at *3 (S.D.N.Y. Nov. 20, 2019) (“[C]onduct sufficient to meet the substantial step standard . . . ordinarily will constitute an attempt to use force.”). The Crowder court didn’t look at the minimum conduct required to meet the substantial step requirement, but rather the ordinary conduct that will meet the standard.

[26] United States v. Doctor, 842 F.3d 306, 308 (4th Cir. 2016).