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In Amended Decision, Circuit Leaves In Place that “Hobbs Act” Robbery is a Categorical “Crime of Violence” Based on “Force Clause” but Eliminates Constitutional Blessing of “Risk-of-Force” Clause

Over a year and a half after issuing its initial decision in United States v. Hill, 14-3872-cr (August 3, 2016), the Court amended its decision on May 9, 2018.  The amended decision maintains the Court’s holding that a Hobbs Act robbery is a categorical “crime of violence” under the so-called “force clause” clause (§ 924(c)(3)(A)).  However, the amended decision excises the Court’s prior holding that the “risk-of-force” clause (§ 924(c)(3)(B), also called the “residual clause”) was not void for vagueness and also qualified the a Hobbs Act robbery as a categorical “crime of violence.”

As we observed in our initial post about this case, the Court’s original decision finding no constitutional infirmity in the “risk-of-force” clause appeared to create a conflict with several other Circuits that, in the wake of Johnson v. United States, 135 S. Ct. 2551 (2015), had found materiality-identical language in 18 U.S.C. § 16(b) to be void for vagueness.  The Court’s initial decision distinguished Johnson, which had invalidated the “residual clause” of the “violent felony” provision in the Armed Career Criminal Act (“ACCA”), by pointing to several differences between that clause and the “risk-of-force” clauses at issue in Hill and the § 16(b) cases.  However, on April 17, 2018, the Supreme Court ruled 5-4 in Sessions v. Dimaya, 138 S. Ct. 1204 (2018) that § 16(b) was also void for vagueness pursuant to Johnson.

The Court’s amended opinion falls back to the principal holding that the “force clause” alone qualifies a Hobbs Act robbery as a categorical “crime of violence,” such that the Court need not pass on the applicability (or constitutionality) of the “risk-of-force clause” clause.  Although the Supreme Court found nearly identical language in § 16(b) to be unconstitutional, the amended decision declines to resolve whether Dimaya compels the same result for § 924(c)(3)(B).  Instead, it quotes the dissent of Chief Justice Roberts, who warned of the impact the Dimaya immigration-law ruling could have on similarly-worded provisions in the criminal law—in particular the “oft-prosecuted offense” of § 924(c)—but ultimately “express[ed] no view” as to whether or not such provisions could be distinguished.  Dimaya, 138 S. Ct. at 1241 (Roberts, C.J., dissenting).

While the Court deferred this issue for now, they will likely soon confront it head-on since the Court’s amendment essentially invites District Courts in the Circuit to now find the “risk-of-force” clause unconstitutional under Dimaya and Johnson.  The Court acted only a few weeks after the Dimaya decision, so this amended decision avoids future district court reliance on Hill’s pre-Dimaya analysis, which advocated strongly against the position ultimately taken by the Supreme Court in Dimaya.  Eventually there will be another appeal—perhaps one that is now pending before the Court—in which the Court will be required to answer the question left open by this amended decision.

-By Jason Vitullo and Harry Sandick