Wednesday, September 19, 2018

Hobbs Act Robbery Ruled Not a "Crime of Violence" Under Sentencing Guidelines

The Sixth Circuit ruled recently that Hobbs Act robbery, a violation of 18 U.S.C. § 1951(a), is not a "crime of violence" under the sentencing guidelines in United States v. Camp. As a result, the court held that the district court erred in finding that the defendant was a career offender under the guidelines and remanded the case for resentencing.

The defendant, Desmond Camp, pleaded guilty to three charges: (1) Hobbs Act robbery; (2) using a firearm during a crime of violence, a violation of 18 U.S.C. § 924(c); and being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1). He received a mandatory statutory minimum sentence of 25 years on the 924(c) charge owing to a prior conviction under that statute. The district court determined that Camp was a career offender under the guidelines finding that the Hobbs Act robbery conviction and his prior convictions -- a 2003 federal bank robbery conviction and a 1990 convicting in Michigan for armed robbery -- all qualified as crimes of violence. As a result, Camp received sentences of 72 months on the Hobbs Act robbery and felon in possession charges to run consecutively to the 25 years on the 924(c) charge.

The court considered whether Hobbs Act robbery was a "crime of violence" under the guidelines § 4B1.1 by applying the categorical approach to both the use-of-force clause and the enumerated offense clauses As an initial matter, the court discussed whether the categorical approach should be applied to both prior and instant offenses and concluded that it should.

The court held that Hobbs Act robbery was not a crime of violence under the Guidelines' use-of-force clause, because Hobbs Act robbery included use of force against property, not just a person as under the guidelines.

Turning to analysis under the enumerated offense clause the court saw two offenses, robbery and extortion, listed in § 4B1.2 that potentially were a categorical match to Hobbs Act robbery. The generic definition of robbery applied, the court concluded, and Hobbs Act robbery was broader than generic robbery for two reasons: (1) generic robbery includes a requirement of immediate danger; and, (2) it criminalizes threats to property alone untethered by any temporal immediacy. 

The Guidelines define extortion, see USSG § 4B1.2, comment. (n. 1), and it "does not include threats against property and, as a result, Hobbs Act robbery -- which plainly does -- is not a categorical match with Guidelines extortion." 

The court joined the 10th Circuit, United States v. O'Connor, 874 F.3d 1147 (2017), in holding that Hobbs Act robbery is not a crime of violence under the Guidelines.

Camp also argued that Hobbs Act robbery did not qualify as a crime of violence for purposes of 18 USC § 924(c), a contention the court found foreclosed by its holding in United States v. Gooch, 850 F3d 285 (6th Cir.), cert. denied, 137 SCt 2230 (2017).