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United States v. McCallister

United States District Court, District of Columbia

May 31, 2016

UNITED STATES OF AMERICA,
v.
NED MCCALLISTER, Defendant.

          MEMORANDUM OPINION

          AMY BERMAN JACKSON United States District Judge.

         In this opinion, the Court joins the chorus of judges declaring that a robbery in violation of the Hobbs Act is a “crime of violence” for purposes of 18 U.S.C. § 924(c).

         Defendant Ned McCallister has been charged in an indictment with attempting to obstruct interstate commerce by robbery in violation of the Hobbs Act, 18 U.S.C. § 1951, and with carrying a firearm during and in furtherance of a crime of violence during that robbery, in violation of 18 U.S.C. § 924(c)(1). Indictment [Dkt. # 1]. Defendant moved to dismiss Count Two, the charge seeking an enhanced penalty under section 924(c)(1), on the grounds that the Hobbs Act robbery offense in Count One “categorically fails to qualify as a ‘crime of violence’ within the meaning of 18 U.S.C. § 924(c)(3)(A), ” and because “the residual clause of § 924(c)(3)(B) is unconstitutionally vague” under the Supreme Court’s recent ruling in Johnson v. United States, 135 S.Ct. 2551 (2015). Def.’s Mot. to Dismiss Count Two of the Indictment [Dkt. # 16] (“Def.’s Mot.”) at 1. The Court finds the defendant’s insistence on the use of the categorical approach in connection with this provision and at this stage of the proceedings to be misplaced. Moreover, the Court finds that a Hobbs Act robbery qualifies as a crime of violence under section 924(c)(3)(A). For those reasons, and for the reasons set forth in more detail below, the Court denied defendant’s motion to dismiss Count Two at the hearing on the motion held on May 17, 2016, see Min. Entry (May 17, 2016), and it need not reach defendant’s claim that the residual clause of section 924(c)(3)(B) is unconstitutionally vague.

         BACKGROUND

         I. Factual Background

         This case involves a botched and ultimately deadly armed robbery of a liquor store. See Gov’t Mem. for Pretrial Detention [Dkt. # 3] at 1. The indictment charges that on October 26, 2015, defendant attempted to take and obtain personal property from the presence of an employee of Morris Miller Wine & Liquor in Washington, D.C. “against his will by means of actual and threatened force, violence, and fear of injury, immediate and future, ” in violation of 18 U.S.C. § 1951. Indictment at 1-2. It also charges that defendant did knowingly and unlawfully use, carry, and possess a Taurus .38 special revolver during and in relation to the commission of that robbery, in violation of 18 U.S.C. § 924(c)(1). Id. at 2.

         On April 18, 2016, defendant moved to dismiss Count Two of the indictment. Def.’s Mot. The government opposed the motion on May 5, 2016, and defendant filed his reply on May 12, 2016. Gov’t Opp. to Def.’s Mot. [Dkt. # 18] (“Gov’t Opp.”); Def.’s Reply in Supp. of Def.’s Mot. [Dkt. # 20]. The Court held a hearing on the motion on May 17, 2016.

         II. Statutory Background

         Section 924(c)(1) provides for an enhanced punishment for a defendant who uses, carries, or possesses a firearm “during and in relation to any crime of violence.” 18 U.S.C. § 924(c)(1)(A).

         The statute defines a “crime of violence” as a felony that:

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) 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.

Id. § 924(c)(3). Section 924(c)(3)(A) is referred to as the “force clause” of the statute, while section 924(c)(3)(B) is referred to as the “residual clause.”[1]

         In this case, defendant has been charged with a violation of the Hobbs Act, 18 U.S.C. § 1951. That statute provides:

Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion 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 shall be fined under this title or imprisoned not more than twenty years, or both.

18 U.S.C. § 1951(a). The statute defines “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.

18 U.S.C. § 1951(b)(1).

         ANALYSIS

         I. The “categorical approach” does not apply when determining, on a pre-trial motion to dismiss, whether an offense qualifies as a crime of violence under section 924(c).

         Defendant has moved to dismiss Count Two of the indictment on the grounds that the Hobbs Act robbery offense underlying the section 924(c) charge does not qualify as a “crime of violence” within the meaning of 18 U.S.C. § 924(c)(3)(A). Def.’s Mot. at 1. Relying on Supreme Court precedent that requires a sentencing court to employ a “categorical, ” elements-based approach in determining whether a prior offense qualifies as a predicate crime for a sentencing enhancement, defendant argues that Hobbs Act robbery “can only qualify as a ‘crime of violence’ if all the criminal conduct covered by [the] statute - ‘including the most innocent conduct’ - matches or is narrower than the ‘crime of violence’ definition.” Id. at 5-6, quoting United States v. Torres-Miguel, 701 F.3d 165, 167 (4th Cir. 2012). Because he can hypothesize three ways in which a Hobbs Act robbery could be committed without what he maintains is the requisite level of force, defendant insists that a section 1951 charge cannot provide a basis for a section 924(c)(3) “crime of violence” sentencing enhancement. Id. at 5-20.

         In the Court’s view, the fundamental problem with defendant’s motion is that the precedent he relies upon, which was developed under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), does not apply to the instant situation: a pre-trial motion to dismiss a count premised on section 924(c).

         Section 924 of Title 18 provides for enhanced penalties for offenses involving firearms under certain circumstances, and each of the subsections is different. Under the ACCA, which was promulgated in 1984 and is embodied in section 924(e), any person who commits a firearms offense in violation of 18 U.S.C. § 922(g) “and has three previous convictions by any court . . . for a violent felony or a serious drug offense . . . shall be . . . imprisoned not less than fifteen years.” 18 U.S.C. § 924(e)(1). The terms “violent felony” and “serious drug offense” are specifically defined for purposes of this provision in subsection 924(e)(2).

         A review of the Supreme Court jurisprudence applying the ACCA reveals that the Court has required sentencing courts to look solely at the elements of the offense of conviction to eliminate any unfairness or uncertainty, as well as any potential constitutional problems that could arise, when significant penalties are predicated on “previous” convictions. In Taylor v. United States, 495 U.S. 575 (1990), the Supreme Court addressed the question of whether the sentencing court must only look to the statutory definitions of the prior offenses that might serve as the predicate for an enhancement under section 924(e), or whether it was permitted to consider other evidence concerning the defendant’s prior crimes. Id. at 600. Based upon the language of section 924(e), the legislative history of the enhancement statute, and the “practical difficulties and potential unfairness of a factual approach, ” which it considered to be “daunting, ” the Court decided that section 924(e) generally required a categorical approach. Id. at 600-01.

         The problem that arose in Taylor was that the definition of “violent felony” in section 924(e) includes not only any offense that “has as an element the use, attempted use, or threatened use of physical force, ” but also a list of specific offenses, including burglary and extortion. 18 U.S.C. § 924(e)(2)(B). Faced with the question of whether the sentencing enhancement could be properly based on a conviction for second degree burglary from a state that defined burglary more broadly than the generic definition embodied in the statute, the Court recognized that the categorical approach “may permit the sentencing court to go beyond the mere fact of conviction in a narrow range of cases, ” and that in those limited circumstances, the indictment or jury instructions would illuminate what it was that the jury was actually required to find. Taylor, 495 U.S. at 602.

         In Shepard v. United States, 544 U.S. 13 (2005), the Court was faced with a conflict in the circuits concerning whether the Taylor ruling should apply when the prior convictions stemmed from guilty pleas instead of jury verdicts, id. at 19, and it observed: “certainly, ‘the practical difficulties and potential unfairness of a factual approach are daunting, ’ no less in pleaded than in litigated cases.” Id. at 20, quoting Taylor, 495 U.S. at 601. The Shepard Court also expressed the concern that if the sentencing judge were to “make a disputed finding of fact about what the defendant and state judge must have understood as the factual basis of the prior plea, ” such judicial fact-finding could raise Sixth Amendment concerns under Jones v. United States, 526 U.S. 227 (1999), and Apprendi v. New Jersey, 530 U.S. 466 (2000). Id. at 25. It decided to adhere to the “demanding requirement” that had been in effect since Taylor “that any sentence under the ACCA rest on a showing that a prior conviction ‘necessarily’ involved (and a prior plea necessarily admitted) facts equating to” a predicate violent felony under the statute. Id. at 24.

         In Descamps v. United States, 133 S.Ct. 2276 (2013), the Court insisted again on the use of an elements-based, instead of a facts-based, inquiry when sentencing a defendant under the ACCA. It stressed that in Shepard, due to the divisible nature of the state burglary statute, “[n]o one could know, just from looking at the statute, which version of the offense [the defendant] was convicted of, ” and so the sentencing court was authorized to review a narrow set of materials related to the predicate offense for the sole purpose of resolving that uncertainty. Id. at 2284. The Court then repeated its three reasons for adopting the “elements-centric, ‘formal categorical approach’”: “First, it comports with ACCA’s text and history. Second, it avoids the Sixth Amendment concerns that would arise from sentencing ...


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