United States District Court, M.D. Georgia, Columbus Division
D. LAND, CHIEF U.S. DISTRICT COURT JUDGE.
has moved to dismiss Count 3 of the Government's
Superseding Information which charges the Defendant with
possession of a firearm in furtherance of a crime of violence
(Hobbs Act robbery). Defendant argues that Hobbs Act robbery
is not a “crime of violence” for purposes of 18
U.S.C. § 924(c)(1)(A)(i), and therefore, this count must
be dismissed. For the reasons explained in the remainder of
this Order, Defendant's motion (ECF No. 21) is denied.
25, 2016, Defendant, a convicted felon, walked into the
Circle K convenience store on Wynnton Road in Columbus,
Georgia, pulled out a firearm, threatened the cashier with
the firearm, demanded money, and fled with the stolen cash.
Two days later, he did it again-this time at the Circle K on
Veterans Parkway in Columbus.
was indicted for two counts of interference with commerce by
robbery in violation of the Hobbs Act, 18 U.S.C. § 1951
(“Hobbs Act robbery”), two counts of possession
of a firearm in furtherance of a crime of violence in
violation of 18 U.S.C. § 924(c)(1)(A)(i), and two counts
of possession of a firearm by a convicted felon in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
Indictment, ECF No. 1. Defendant moved to dismiss the two
§ 924(c) counts, arguing that Hobbs Act robbery is not a
“crime of violence” under recent Supreme Court
precedent including Samuel Johnson v. United States,
135 S.Ct. 2551 (2015) and Descamps v. United States,
133 S.Ct. 2276 (2013). See Def.'s Mot. to
Dismiss Counts Two and Four of the Indictment 4 & n.1, 11
& n.30, ECF No. 21.
Government subsequently filed a superseding information in
which it charged Defendant with the same two counts of Hobbs
Act robbery but only one count of possession of a firearm in
furtherance of a crime of violence (predicated on the May 27,
2016 Circle K robbery) and one count of possession of a
firearm by a convicted felon. See Superseding
Information, ECF No. 25. Defendant waived his right to be
indicted by a grand jury and renewed his motion to dismiss
the § 924(c) possession of a firearm in furtherance of a
crime of violence count. The Court denied Defendant's
motion orally from the bench. The Defendant then pled guilty
to each of the four counts in the superseding information
while reserving his right to appeal the Court's denial of
his motion to dismiss the § 924(c) count. This Order
explains the Court's rationale for denying
Defendant's motion to dismiss that count.
The Hobbs Act and 18 U.S.C. § 924(c)(1)(A)(i).
Hobbs Act makes it a federal crime to “obstruct,
delay, or affect commerce or the movement of any article
or commodity in commerce . . . by robbery.” 18 U.S.C.
§ 1951(a). “Robbery” is “the unlawful
taking or obtaining of personal property from the person . .
. 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.” § 1951(b)(1). The statutory penalty
for Hobbs Act robbery is a fine and a prison sentence not to
exceed 20 years. § 1951(a).
has also mandated that “any person who, during and in
relation to any crime of violence . . . for which the person
may be prosecuted in a court of the United States, 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 . . . be sentenced to a
term of imprisonment of not less than 5 years.” 18
U.S.C. § 924(c)(1)(A)(i).
Government has charged the Defendant with two counts of Hobbs
Act robbery-one for the May 25 robbery and one for the May 27
robbery. In addition, the Government contends that the May 27
Hobbs Act robbery was a “crime of violence” and
that Defendant used or carried a firearm in furtherance of
that robbery, thus subjecting Defendant to the consecutive
minimum mandatory five year prison sentence pursuant to
§ 924(c)(1)(A)(i). Superseding Information 2-3.
Defendant argues that Hobbs Act robbery is not a “crime
of violence” for § 924(c) purposes, and therefore,
that this charge must be dismissed.
purposes of § 924(c), “crime of violence”
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 [the
‘use-of-force clause'], 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 [the ‘risk-of-force
clause'].” § 924(c)(3)(A & B). The
question presented by Defendant's motion to dismiss is
whether the Hobbs Act robbery with which Defendant is charged
is a “crime of violence” under either the
use-of-force clause or the risk-of-force clause.
Hobbs Act Robbery is Categorically a Crime of
maintains that the Court must use the “categorical
approach” in determining whether Hobbs Act robbery is a
crime of violence. See Taylor v. United States, 495
U.S. 575, 600 (1990) (adopting “categorical
approach” for enhancement purposes under the Armed
Career Criminal Act). Under that approach, the Court ignores
the Defendant's actual alleged criminal conduct and
instead must determine whether the offense of Hobbs Act
robbery has as an element the use, attempted use, or
threatened use of physical force. To obtain a conviction for
Hobbs Act robbery, the Government must prove that the
Defendant (1) took personal property belonging to someone
else; (2) that he did so against the will of the person from
whom he took the property; (3) that to take the property he
used actual force, threatened force, violence, or fear of
immediate or future injury to the victim's person or
property or property in the victim's custody or control;
and (4) that the robbery obstructed, delayed, or affected
commerce or the movement of any article or commodity in
commerce. 18 ...