Crocker v. United States

638 F.Supp.3d 1295

Marcus Lamont CROCKER, Petitioner, v. UNITED STATES of America, Respondent.

Case No. 2:16-cv-681-HCN

United States District Court, D. Utah

Signed October 31, 2022

Benjamin C. McMurray, Utah Federal Defender Office, Salt Lake City, UT, for Petitioner.

Marcus Lamont Crocker, Bruceton Mills, WV, Pro Se.

Carlos A. Esqueda, Elizabethanne C. Stevens, U.S. Attorney's Office, Salt Lake City, UT, for Respondent.

MEMORANDUM DECISION AND ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

Howard C. Nielson, Jr., United States District Judge

INTRODUCTION

Petitioner Marcus Crocker moves to vacate his conviction for using, carrying, or possessing a firearm in connection with a crime of violence in violation of 18 U.S.C. § 924(c) on the ground that Hobbs Act robbery, of which he was also convicted, is not a crime of violence within the meaning of Section 924(c). The court denies the motion.

I.

On March 4, 2008, Mr. Crocker was charged in a two-count felony information. See United States v. Crocker, 2:08-cr-122, Dkt. No. 1 (D. Utah Mar. 4, 2008). Count one charged him with Hobbs Act robbery under 18 U.S.C. § 1951(a). See id. at 1. The felony information alleged that Mr. Crocker:

did take from an employee, against his will, at the Sunshine convenience store, located at 700 East 1845 South, Salt Lake City, Utah, by physical force and violence, threatened force and violence and fear of injury, U.S. currency, which belonged to and was in the care, custody, control, management and possession of the Sunshine convenience store, and by committing such robbery obstructed, delayed or affected commerce or the movement of articles or commodities in interstate commerce; all in violation of 18 U.S.C. § 1951(a).

Id. at 1-2. Count two charged Mr. Crocker with violating 18 U.S.C. § 924(c), alleging that he "did knowingly and intentionally use, carry, and discharge a . . . handgun" "during and in relation to the crime of violence of Hobbs Act Robbery." Id. at 2.

Mr. Crocker pleaded guilty to both counts. Id. Dkt. No. 9. Mr. Crocker admitted the following facts in his statement in advance of plea:

On or about September 6, 2001, I along with another individual, drove to the Sunshine Market, located at 700 East 1845 South, Salt Lake City, Salt Lake County. I, along with two others, surveyed the Sunshine Market in order to rob the market. I was told that the cashier was the only one inside the market. The car I drove in was parked down the street from Sunshine Market.

I entered the market carrying a .44 caliber Smith and Wesson handgun, and wearing a bandana, gloves, shirt, sweatshirt, and hat that was purchased earlier that day in order to conceal my identity. I approached the cashier, brandished my handgun and demanded money from the register. The cashier complied with my demands and handed me the cash in the register, less than $100.00.

After receiving the money, and as I turned to leave, I shot the Clerk in the chest, killing him. As previously planned, I left the market and gave the revolver to another person to conceal it. I had been recently paroled from the Utah State Prison and did not want to be caught with a gun. The handgun was then returned to the person who originally provided me the handgun.

I acknowledge the accuracy of a videotape recovered from the Sunshine Market which documents the victim Kang Ho Lee being shot after giving me the money from the register. I also acknowledge that I am [sic] person in the video, wearing clothing identical to the clothing described above, who robbed and shot Kang Ho Lee, at the Sunshine Market. I acknowledge that the cashier, Kang Ho Lee, died from the gun shot wound to his chest. I acknowledge that the Sunshine Market is a retail establishment which moves articles and commodities in interstate commerce.

Id. at 3-4. Mr. Crocker's statement in advance of plea listed the following elements of Hobbs Act Robbery:

1. The defendant knowingly obtained or attempted to obtain, property of another, from the person or presence of another; 2. The defendant took the property against the victim's will, by means of actual or threatened force or violence or fear of injury; resulting in the death of another; and 3. That as a result of defendants' actions, interstate commerce, or an item moving in interstate commerce, was delayed, obstructed or affected in any way or degree.

Id. at 1.

At his combined change of plea and sentencing hearing, Mr. Crocker orally admitted the facts of the crime as stated in the statement in advance of plea and pleaded guilty to both counts. See United States v. Crocker, 2:16-cv-681, Dkt. No. 19-1 at 15-18 (D. Utah June 23, 2016). The court accepted Mr. Crocker's plea and sentenced him to life in prison. See Crocker, 2:08-cr-122, Dkt. No. 12 at 2.

In 2016, Mr. Crocker filed a motion for relief under 28 U.S.C. § 2255, which he amended in April 2020 and June 2020. See Crocker, 2:16-cv-681, Dkt. Nos. 1, 3, 4. The court stayed this action shortly after Mr. Crocker first filed his motion, and the stay remained in place until earlier this year. See Dkt. Nos. 11, 12, 15. The motion is now fully briefed and ready for decision.¹

II.

Mr. Crocker argues that the court should vacate his Section 924(c) conviction "because the Hobbs Act crime he admitted included attempted robberies, so it does not qualify categorically as a crime of violence under § 924(c)." Dkt. No. 18 at 3 (emphasis added). The court rejects this argument.

A.

"The Hobbs Act makes it a federal crime to commit, attempt to commit, or conspire to commit a robbery with an interstate component." United States v. Taylor, — U.S. —, 142 S. Ct. 2015, 2019, 213 L.Ed.2d 349 (2022); see 18 U.S.C. § 1951(a). Section 924(c) "authorizes further punishments for those who use a firearm in connection with a 'crime of violence.' " Taylor, 142 S. Ct. at 2019; 18 U.S.C. § 924(c).

Section 924(c) contains two definitions for "crime of violence." Under the "elements clause," a crime of violence is defined as a felony that "has as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 924(c)(3)(A); United States v. Baker, 49 F.4th 1348, 1354 (10th Cir. 2022). Under the "residual clause," a felony "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" is a crime of violence. 18 U.S.C. § 924(c)(3)(B). Because the Supreme Court has held that the "residual clause" is "unconstitutionally vague," United States v. Davis, — U.S. —, 139 S. Ct. 2319, 2336, 204 L.Ed.2d 757 (2019), "a criminal conviction qualifies as a predicate 'crime of violence' . . . only if it meets the terms of . . . the 'elements clause.' " Baker, 49 F.4th at 1355.

To determine whether a felony qualifies as a crime of violence under the elements clause, courts apply the "categorical approach." United States v. Melgar-Cabrera, 892 F.3d 1053, 1060-61 (10th Cir. 2018). Under that approach, the court must look only "to the elements of the statutes of conviction and not to the particular facts underlying those convictions." United States v. Titties, 852 F.3d 1257, 1266 (10th Cir. 2017) (internal quotation marks omitted). The court then "compare[s] the scope of conduct covered by the predicate crime's elements with § 924(c)(3)(A)'s definition of 'crime of violence[,]' . . . presume[s] that an offender's conviction rested upon nothing more than the least of the acts criminalized, and then determine[s] whether even those acts are encompassed by § 924(c)(3)(A)." Baker, 49 F.4th at 1355 (cleaned up).

If a criminal statute is "divisible"—meaning the statute "list[s] elements in the alternative, and thereby define[s] multiple crimes"—courts apply the "modified categorical approach." Mathis v. United States, 579 U.S. 500, 505, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). "The modified categorical approach allows courts to consult certain documents—for example, the charging document, plea agreement, and transcript of the plea colloquy—to decide 'what crime, with what elements, a defendant was convicted of.' " United States v. Eccleston, 2022 WL 3696664, at *2 (10th Cir. Aug. 26, 2022) (quoting Mathis, 579 U.S. at 505-06, 136 S.Ct. 2243).

In Eccleston, a recent unpublished opinion, the Tenth Circuit held that "the Hobbs Act is divisible into three robbery-based offenses: robbery, attempted robbery, and conspiracy to commit robbery . . . because these three crimes comprise different elements." Id. Regardless of whether this unpublished opinion constitutes binding precedent, the court agrees with its conclusion that the Hobbs Act is divisible in this manner.²

In United States v. Taylor, the Supreme Court recently held that attempted Hobbs Act robbery is not a crime of violence under the categorical approach. See 142 S. Ct. at 2025. The Court in Taylor did not, however, address "completed Hobbs Act robbery"—let alone disturb circuit precedent regarding that offense. Baker, 49 F.4th at 1360; Taylor, 142 S. Ct. at 2020.

In Melgar-Cabrera, by contrast, the Tenth Circuit held that completed "Hobbs Act robbery is a crime of violence under the elements clause of § 924(c)(3)." Melgar-Cabrera, 892 F.3d at 1060 n.4. And the Tenth Circuit has repeatedly reiterated—including after the Supreme Court's decision in Taylor—that Melgar-Cabrera establishes that completed Hobbs Act robbery is categorically a crime of violence. See Baker, 49 F.4th at 1357 n.4.

It follows that whether Mr. Crocker was convicted of a crime of violence turns on whether he was convicted of attempted Hobbs Act robbery or completed Hobbs Act robbery. The court must apply the modified categorical approach to answer this question.

B.

Having reviewed the felony information, the statement in advance of plea, and the transcript from Mr. Crocker's change of plea and sentencing hearing, the court concludes that Mr. Crocker was convicted of completed Hobbs Act robbery.

The...