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United States v. Henderson

United States District Court, M.D. Georgia, Columbus Division

August 31, 2017

UNITED STATES OF AMERICA
v.
MARCOS HENDERSON, Defendant.

          ORDER

          CLAY D. LAND, CHIEF U.S. DISTRICT COURT JUDGE.

         Defendant 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.

         BACKGROUND

         On May 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.

         Defendant 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.

         The 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.

         DISCUSSION

         I. The Hobbs Act and 18 U.S.C. § 924(c)(1)(A)(i).

         The 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).

         Congress 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).

         The 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.

         For 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.

         II. Hobbs Act Robbery is Categorically a Crime of Violence.

         Defendant 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.[1] 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 ...


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