United States v. Green

996 F.3d 176

UNITED STATES of America, Plaintiff – Appellee,

v.Richard GREEN, Defendant – Appellant.

No. 19-4703

United States Court of Appeals, Fourth Circuit.

Argued: January 28, 2021

Decided: April 29, 2021

ARGUED: Julie Marie Reamy, JULIE M. REAMY, ATTORNEY AT LAW, LLC, Baltimore, Maryland, for Appellant. Charles David Austin, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Robert K. Hur, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Before KING, HARRIS, and RUSHING, Circuit Judges.

Vacated and remanded by published opinion. Judge Harris wrote the opinion, in which Judge King joined. Judge Rushing wrote a separate opinion, concurring in part and concurring in the judgment

PAMELA HARRIS, Circuit Judge:

Richard Green was sentenced as a career offender under § 4B1.1 of the United States Sentencing Guidelines, after the district court found that Hobbs Act robbery, of which Green was convicted, qualified as a crime of violence under that provision. This court has not yet considered whether Hobbs Act robbery constitutes a crime of violence under the Guidelines, but all five federal courts of appeals to do so have concluded that it does not. Because we agree with our sister circuits, we vacate Green's sentence and remand for resentencing.

I.

Richard Green pled guilty to a single count of interference with commerce by robbery – so-called Hobbs Act robbery – in violation of 18 U.S.C. § 1951. In their plea agreement, the parties stipulated to a sentence of no less than 120 months’ imprisonment. Green's presentence report ("PSR") designated Green as a career offender under § 4B1.1 of the Sentencing Guidelines, treating his Hobbs Act robbery conviction as a "crime of violence." See U.S.S.G. § 4B1.1. As a result, his Guidelines sentencing range, otherwise 77 to 96 months, became 151 to 188 months.

The only issue on appeal is whether Green's instant offense of conviction, Hobbs Act robbery, is a "crime of violence" under the Sentencing Guidelines’ career offender provision.¹ Section 4B1.2(a) of the Sentencing Guidelines provides two alternative definitions of a "crime of violence." First, an offense will qualify as a crime of violence under the "force clause" if it "has as an element the use, attempted use, or threatened use of physical force against the person of another." Id. § 4B1.2(a)(1). Second, an offense will qualify under the "enumerated clause" if it is among the listed offenses to be treated categorically as a crime of violence – including, as relevant here, both robbery and extortion. Id. § 4B1.2(a)(2).

In his sentencing memo, Green objected to the career offender enhancement, arguing that Hobbs Act robbery "is not a crime of violence as defined by USSG § 4B1.2." J.A. 137. Green's argument consisted of one sentence and two footnotes, in which he appeared to raise a vagueness challenge to § 4B1.2. See id. (citing United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019) ; Johnson v. United States , 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) ). Green also cited, without additional discussion, Quarles v. United States , ––– U.S. ––––, 139 S. Ct. 1872, 204 L.Ed.2d 200 (2019), which applied the Armed Career Criminal Act's definition of "violent felony" and construed the enumerated offense of "burglary." Id.

In response, the government explained that the recent vagueness decisions cited by Green did not apply to the Sentencing Guidelines. See J.A. 148; see also Beckles v. United States , ––– U.S. ––––, 137 S. Ct. 886, 197 L.Ed.2d 145 (2017). And because "robbery" is among the offenses listed in § 4B1.2(a)(2) ’s enumerated clause, the government argued, Hobbs Act robbery necessarily qualifies as a crime of violence under the Sentencing Guidelines’ career offender provision. J.A. 148.

At the sentencing hearing, the district court overruled Green's objection to the career offender enhancement. The court appeared to rely on § 4B1.2 ’s force clause, rather than the enumerated clause, reasoning that the elements of Hobbs Act robbery "allow [that offense] to be treated as a predicate under the force clause." J.A. 98. The court acknowledged, however, that whether Hobbs Act robbery qualifies as a crime of violence under § 4B1.1 "has not been fully decided yet," and that it "could relook at this again if a higher court were to determine that [ ] Hobbs Act robbery is not a predicate offense." Id.

Applying the career offender enhancement, the district court adopted the Guidelines range recommended by the PSR: 151 to 188 months. That range, the court determined, was too high; even the low end of 151 months overstated the seriousness of Green's criminal history and was more than required to provide deterrence. But the parties’ stipulated minimum of 120 months was too low, given the details of the crime at hand. Instead, the court imposed a term of imprisonment of 144 months (or 12 years), above the parties’ agreed-upon minimum but a downward variance from the Guidelines range.

II.

We begin with the merits of the question on appeal: whether Hobbs Act robbery is a crime of violence under § 4B1.2 of the Sentencing Guidelines. Five other federal courts of appeals have considered this question and have concluded unanimously that it is not. See United States v. O'Connor , 874 F.3d 1147, 1158 (10th Cir. 2017) ; United States v. Camp , 903 F.3d 594, 604 (6th Cir. 2018) ; United States v. Rodriguez , 770 F. App'x 18, 21 (3d Cir. 2019) ; United States v. Eason , 953 F.3d 1184, 1195 (11th Cir. 2020) ; Bridges v. United States , 991 F.3d 793, 802-803 (7th Cir. 2021). A sixth court of appeals is in effective agreement, having determined that functionally identical state robbery statutes do not qualify as crimes of violence under § 4B1.2. See, e.g. , United States v. Edling , 895 F.3d 1153, 1157–58 (9th Cir. 2018) (Nevada robbery statute); United States v. Bankston , 901 F.3d 1100, 1103–04 (9th Cir. 2018) (California robbery statute). We agree with our sister circuits and now hold that Hobbs Act robbery is not a crime of violence under the Sentencing Guidelines’ career offender provision.

A.

As the parties agree, we apply the categorical approach to determine whether Hobbs Act robbery is a crime of violence under the Guidelines, asking whether the offense matches categorically with the definition at § 4B1.2(a). See Descamps v. United States , 570 U.S. 254, 260–61, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) (citation omitted); United States v. Simmons , 917 F.3d 312, 316–17 (4th Cir. 2019). That means we look only to the statutory elements of the offense, not the particular facts of any case. Simmons , 917 F.3d at 317. If Hobbs Act robbery could be committed, consistent with the elements, "without satisfying the definition of crime of violence, then it is overbroad and not a categorical match." Id. (internal quotation marks omitted).

We thus start with the elements of Hobbs Act robbery. That offense is defined by statute 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, to his person or property , or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.

18 U.S.C. § 1951(b)(1) (emphasis added). Critically for our purposes – as detailed below – this definition, by express terms, goes beyond the use of force or threats of force against a person and reaches the use of force or threats of force against property , as well. See Rodriguez , 770 F. App'x at 21 ("[T]he use or threat of force against a person is not required. The use or threat of force against property is enough."). So to the extent the Guidelines definition of "crime of violence" requires the use of force or threats of force against persons , there can be no categorical match. See id.

Anticipating where this will lead us, the government makes a threshold argument about the scope of Hobbs Act robbery: Hobbs Act robbery cannot be committed through the use or threat of force against property alone, the government urges, because there is no "realistic probability" that the statute would be employed in a case lacking an accompanying use or threat of force against a person. Like the other courts with occasion to address this argument, see O'Connor , 874 F.3d at 1153–54 ; Eason , 953 F.3d at 1190–92 ; see also Camp , 903 F.3d at 602, we disagree. In its entirety, the text of the Hobbs Act robbery definition dictates that it will apply to force or threats against property, with or without the kind of "proximity" between victim and property that might mark the offense as one involving an inherently violent act against a person. See Eason , 953 F.3d at 1190–91. And contrary to the government's argument, where the plain statutory language is clear, it is not incumbent on Green to identify a Hobbs Act robbery prosecution involving only a threat of force against property. See Gordon v. Barr , 965 F.3d 252, 260 (4th Cir. 2020) (where the "plain statutory language" is clear, "the burden does not shift to the respondent to ‘find a case’ in which the state successfully prosecuted a defendant for the overbroad conduct"); see also O'Connor , 874 F.3d at 1154 ; Eason , 953 F.3d at 1191. Rather, we know that Hobbs Act robbery "reaches conduct directed at ‘property’ because the statute specifically says so." O'Connor , 874 F.3d at 1154 (citation omitted).

Accordingly, we turn next to the question of whether a robbery offense that, like Hobbs Act robbery, may be committed through force or threats of force against property as well as persons is a categorical match with any portion of the Guidelines definition of "crime of violence" set out in § 4B1.2(a). Like our sister circuits, we conclude that it is not.

B.

The government...