Hobbs Act Robbery a Categorical “Crime of Violence” and Predicate to Federal “Murder-by-Firearm” Statute

In United States v. Hill, 14-3872-cr (August 3, 2016) (Jacobs, Livingston, Droney), the Court affirmed Defendant’s conviction in the Eastern District of New York (Matsumoto, J.) pursuant to 18 U.S.C. § 924(j)(1) for a firearm-related murder committed in the course of a “crime of violence.”

In today’s precedential opinion, the Court held that a Hobbs Act robbery categorically qualifies as a “crime of violence” under both clauses of 18 U.S.C. § 924(c)(3).  The Court rejected Hill’s claim that clause B is unconstitutionally vague under recent Supreme Court precedent—and in this respect, explicitly disagreed with earlier holdings of multiple other circuits, setting up the case for further review by the Supreme Court. 

This heated disagreement amongst the Circuits arises from a cold case file—a 1997 homicide that was not charged until after a cooperating witness emerged in 2011.  It also grows out of the Supreme Court’s dissatisfaction—in two cases, both named Johnson—with the wording of the Armed Career Criminal Act, a statute passed to enhance the sentences of defendants who are convicted of a firearm offense after sustaining multiple prior convictions for crimes of violence or narcotics offenses.  The statute was passed during an era of historic crime rates in the United States and an epidemic of inner-city firearm violence growing out of drug dealing and gang activity.  The Court here was confronted with the question of whether to apply the Johnson rulings in a different but potentially analogous set of circumstances, and ruled that those decisions should not upset the Defendant’s conviction for a different firearms offense.

The Court resolved additional challenges to Defendant’s conviction in a summary order, which is available here.

Defendant’s Conduct, Conviction, and “Crime of Violence” Challenge

This case arises from the robbery and murder of a cab driver in Brooklyn back in 1997.  Shortly after the murder, an eyewitness identified Hill as one of two passengers who fled the cab after the murder, but Hill was not indicted at that time.  In 2011, the other passenger came forward to admit his involvement in the robbery, and identified Hill as the second passenger—and the one who carried and discharged the firearm. 

The government charged Hill with violating 18 U.S.C. §924(j)(1) by committing a firearm-related murder in the course of a “crime of violence,” as defined by 18 U.S.C. § 924(c)(3).  It identified a Hobbs Act robbery, 18 U.S.C. § 1951(b)(1), as the underlying “crime of violence.”  Hill was convicted by a jury following trial, and sentenced to 43 years’ imprisonment.

In this appeal, Hill argued, inter alia, that a Hobbs Act robbery is not a “crime of violence.”

Section 924(c)(3) defines a “crime of violence” as an “offense that is a felony” and:

1. has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
2. 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.

First, Hill claimed that a Hobbs Act robbery does not “categorically” satisfy the requirements of § 924(c)(3)(A)—which the Court calls the “force clause.”  Under established Supreme Court and Second Circuit precedent, courts determine if an offense is a “crime of violence” using a “categorical” approach that looks to the “minimum criminal conduct necessary for conviction under a particular statute,” as opposed to the “particular facts” of the conduct at issue.  (Citations omitted.)

Second, citing the Supreme Court’s recent decision in Johnson v. United States, 135 S. Ct. 2551 (2015) (Johnson II),[1] Hill claimed that § 924(c)(3)(B) is unconstitutionally vague.  The Court refers to this clause as the “risk-of-force clause.”

Crime of Violence under “Force Clause”

In a matter of first impression in this Circuit, the Court held that a Hobbs Act robbery categorically qualifies as a “crime of violence” under the “force clause,” § 924(c)(3)(A).

The “robbery” prong of the Hobbs Act punishes one who “in any way or degree obstructs, delays, or affects commerce … by robbery … or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section.”  18 U.S.C. § 1951.

Section 1951(b)(1) defines a “robbery” 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.

The crux of Hill’s argument on appeal was that a Hobbs Act robbery does not “categorically” qualify as a crime of violence since one could put another in “fear of injury, immediate or future, to … property” without employing or threatening violent force.  Hill offered various hypotheticals to this end, including “threatening to throw paint on the victim’s house, to spray paint his car,” or to “pour[] chocolate syrup on his passport.”  Hill argued that these applications of the Hobbs Act would not include “force” of sufficient magnitude to qualify as a “crime of violence,” based on his reading of the Supreme Court’s decision in Johnson v. United States, 559 U.S. 113 (2010) (Johnson I).  Hill also claimed that one could commit a Hobbs Act robbery by threatening action that does not necessarily involve any “force”—such as poisoning, or withholding medicine.

As an initial matter, the Court pointed out that the “categorical” test of statutory application must be grounded in “reality, logic, and precedent, not flights of fancy.”  Nevertheless, assuming that Hill’s hypotheticals could actually put one in “fear of injury” sufficient to accomplish a robbery, the Court held that such conduct would qualify as a “crime of violence” under the “force clause.” 

The Court first questioned the applicability of Johnson I, which addressed the meaning of “force” in the definition of a violent felony under the Armed Career Criminal Act.  It observed that the definition of “force” here, unlike the ACCA provision, explicitly contemplates injury to both person and property.  Even assuming the applicability of Johnson I, the Court rejected Hill’s claim that Johnson I mandated a certain quantum of force.  Rather, Johnson I simply clarified that “physical force” in the provision at issue meant force capable of causing physical pain or injury, and thus something more than mere common law battery.  Applied to the Hobbs Act, this means “force capable of causing physical pain or injury to a person or injury to property.”  (Emphasis in original.)  The Court also explained that “physical force can encompass acts undertaken to cause physical harm, even when the harm occurs indirectly (as with poisoning).”

Applying this reading, the Court determined that each of Hill’s hypotheticals—even the threat of pouring chocolate syrup on a passport—qualified as a “crime of violence” under the “force” clause of § 924(c)(3).  Accordingly, the Court held that a Hobbs Act robbery is categorically a “crime of violence” pursuant to § 924(c)(3)(A).

Crime of Violence under “Risk-of-Force Clause”

The Court next held that a Hobbs Act robbery is also a “crime of violence” under clause B of § 924(c)(3), since such a crime categorically “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.”  18 U.S.C. § 924(c)(3)(B).  The Court rejected Hill’s argument that this provision is void for vagueness under Johnson II.

In Johnson II, the Supreme Court addressed the so-called “residual clause” of the ACCA’s “violent felony” provision, which extended to any felony that “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another ….” 18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added).  The Supreme Court held that this provision was unduly vague and ran afoul of Fifth Amendment due process.  The Supreme Court explained that this provision combined the uncertainty of assessing the “potential risk of physical injury” in the hypothetical “ordinary case” of a given crime, with the uncertainty of comparing that risk to the risk of injury posed by the four distinct enumerated crimes.

Here, distinguishing Johnson II, the Second Circuit held that the Hobbs Act “risk-of-force clause” does not violate due process.  First, unlike the ACCA, the Hobbs Act does not list a disparate set of example offenses and ask a court to determine if the offense at issue “otherwise involves” conduct with similar risks.  The Court considered this the primary defect in the ACCA residual clause.  Second, the Court explained that assessing whether a crime will in the ordinary course involve “physical force” is a narrower and simpler inquiry than assessing if it will likely involve “physical injury.”  Third, the Court observed that the Hobbs Act “risk-of-force clause” does not have a history of interpretive difficulties, unlike the ACCA provision at issue in Johnson II.

The Court acknowledged that its holding contradicts the holdings of multiple other circuits that recently interpreted the materially identical definition of “crime of violence” in 18 U.S.C. § 16(b), which has particular import in immigration proceedings.  The Fifth, Sixth, Seventh, and Ninth circuits have all held that 18 U.S.C. § 16(b) is void for vagueness under Johnson II.[2]  The Sixth Circuit’s decision is especially notable since an earlier panel of that court held that § 924(c)(3)(B) was not unconstitutionally vague.[3] 

The Court sharply criticized these § 16(b) decisions.  It asserted that each (1) “greatly underestimates – or misunderstands – the significance of the list of enumerated offenses” in ACCA to the holding in Johnson II, (2) “ignore[s] or minimize[s] the other textual distinctions” between the Hobbs Act and ACCA, and (3) disregards the impact in Johnson II of the “fraught precedent interpreting the ACCA’s residual clause.”

This question is ripe for clarification by the Supreme Court given the current circuit split, and numerous other cases—including habeas petitions filed in the wake of Johnson II—that are currently percolating through district courts in other circuits, with similarly inconsistent results.  Compare United States v. Moreno-Aguilar, 2016 U.S. Dist. LEXIS 100924 (D. Md. Aug. 2, 2016) (rejecting claim that Johnson II renders § 924(c)(3) invalid); United States v. Tsarnaev, 157 F. Supp. 3d 57, 71-74 (D. Mass. 2016) (same, in case concerning the 2013 Boston Marathon bombing), with United States v. Edmundson, 153 F. Supp. 3d 857, 861-64 (D. Md. 2015) (concluding that § 924(c)(3) is unconstitutional in light of Johnson II).

The combination of Johnson II and the mandatory minimum sentences under Section 924(c) and 924(j)—which are especially long for those defendants facing multiple firearm charges—may have led some courts to conclude that the safer course was to invalidate § 924(c)’s “risk-of-force” clause.  The Second Circuit has taken the other side of this argument, which will inevitably be resolved by a higher authority.

Update (9/29/16):  As expected, the Supreme Court granted certiorari in a case concerning the constitutionality of a “crime of violence” provision—specifically, the definition in § 16(b) applicable to immigration proceedings.  See Lynch v. Dimaya, No. 15-1498.  If the Supreme Court finds that provision valid notwithstanding Johnson II, the same should hold true for the identical definition of “crime of violence” in § 924(c)(3) and the Second Circuit’s ruling here will stand.  If the Supreme Court finds § 16(b) unconstitutionality vague, without addressing § 924(c)(3), the viability of the latter is also doubtful, but could remain an open question.  As discussed above, the Sixth Circuit has held that § 924(c)(3) is constitutionally sound as applied in ongoing criminal prosecutions, but that the materially identical language in § 16(b) is unconstitutionally vague as applied in immigration proceedings.