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United States v. Thomas

United States District Court, District of Columbia

April 12, 2019

UNITED STATES OF AMERICA,
v.
DAVID LEE THOMAS, Defendant.

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE

         Defendant David Lee Thomas moves to dismiss multiple counts of his indictment on the ground that the predicate offense, Hobbs Act robbery, does not qualify as a “crime of violence” within the meaning of 18 U.S.C. § 924(c). Agreeing with every Court of Appeals to have considered that argument, the Court concludes that Hobbs Act robbery is a crime of violence within the meaning of 18 U.S.C. § 924(c) and, accordingly, will deny the motion.

         On May 3, 2018, a grand jury returned a superseding indictment charging Thomas with fourteen criminal counts related to alleged robberies. Five of these fourteen counts-Counts Two, Four, Six, Ten and Twelve-charge Thomas with “Using, Carrying, and Possessing a Firearm During a Crime of Violence, in violation of Title 18, United States Code, Sections 924(c)(1)(A).” Dkt. 8 at 2, 3, 4-5, 6, 7-8 (“§ 924(c) counts”). That statute provides that “any person who, during and in relation to any crime of violence . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence . . . be sentenced to a term of imprisonment” as defined by the statute. 18 U.S.C. § 924(c)(1)(A). For purposes of § 924(c), a “crime of violence” is “an offense that is a felony and:”

(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). The D.C. Circuit has declared the second clause-the so-called “residual clause”- unconstitutionally vague, see United States v. Eshetu, 898 F.3d 36, 37 (D.C. Cir. 2018), and so only the first clause-the so-called “elements” or “force” clause-is at issue here.

         According to Thomas, the Court must dismiss all five § 924(c) counts because the underlying crimes charged by the indictment-robberies in violation of the Hobbs Act, 18 U.S.C. § 1951-are not “crimes of violence” within the meaning of 18 U.S.C. § 924, and therefore § 924 cannot apply regardless of whether Thomas himself allegedly used violent force during the commission of the alleged robberies. Dkt. 18 at 1. The Hobbs Act defines “robbery” as:

[T]he 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). The Hobbs Act also defines “extortion” as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” Id. § 1951(b)(2).

         Thomas argues that, in evaluating his motion, the Court must ignore the particulars of his case and apply the “categorical approach.” The categorical approach directs courts to evaluate whether an offense is a “crime of violence” solely “in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.” Johnson v. United States, 135 S.Ct. 2551, 2557 (2015). That is, in examining whether a crime meets the definition of a “crime of violence, ” “[t]he key” to the Court's analysis must be “elements, not facts.” Descamps v. United States, 570 U.S. 254, 261 (2013).[1] “If the law defines the crime in such a way that it can be committed using either violent or non-violent force, then the crime is not” a crime of violence under § 924(c)(3)(A), “even if the defendant actually used violent force in committing the crime.” United States v. Haight, 892 F.3d 1271, 1279 (D.C. Cir. 2018). A court applying the categorical approach must therefore look only to “the minimum conduct criminalized by the [particular] statute.” Moncrieffe v. Holder, 569 U.S. 184, 191 (2013). Thomas argues that, viewed from this vantage point, the Court must dismiss all of the § 924(c) counts because there are multiple “ways in which Hobbs Act robbery can be committed without satisfying the force clause.” Dkt. 18 at 10.

         The government first responds by arguing that the categorical approach does not apply here. Explaining that the categorical approach is used “almost exclusively . . . at sentencing or post-trial matters, ” the government observes that some courts have “questioned the [application] of the categorical approach to a pre-trial motion to dismiss a count in the indictment.” See Dkt. 24 at 9 n.3. Indeed, at least one decision in this district has held that the categorical approach is inapposite when analyzing a pretrial motion to dismiss a § 924 count, because-unlike in cases in which courts must consider past convictions for purposes of sentencing-the application of § 924 will be “based solely upon the offense being presented to the factfinder in the same case.” United States v. McCallister, No. CR 15-0171, 2016 WL 3072237, at *4 (D.D.C. May 31, 2016); see also United States v. Robinson, 844 F.3d 137, 143 (3d Cir. 2016) (“Looking at a contemporaneous conviction allows a court to determine the basis for a defendant's predicate conviction. The defendant suffers no prejudice because the court is not finding any new facts which are not of record in the case before it.”).

         The D.C. Circuit, however, has previously applied the categorical approach to determine whether Hobbs Act robbery is a crime of violence for purposes of § 924(c)(3). See United States v. Kennedy, 133 F.3d 53, 56 (D.C. Cir. 1998). Although a portion of that case cited only the residual clause, see Id. at 57, the Court of Appeals did not differentiate between § 924(c)(3)(A) and § 924(c)(3)(B). There is little to suggest, moreover, that the court's reasoning would not apply equally to the elements clause, and dicta in the decision seems to reject the argument the government raises here. See Id. n.3 (“There is no difference, for the purpose of sentencing enhancement statutes, between predicate crimes committed in the past or the present.”). The government, moreover, recently raised the argument it raises here in the context of the residual clause, arguing to the D.C. Circuit that a case-by-case-and not a categorical-approach ought to apply to challenges to § 924(c)(3)(B) counts. See Corrected Supplemental Pleading of Appellee at 9-24, United States v. Eshetu, No. 15-3020 (D.C. Cir. June 6, 2018). The Court of Appeals rejected that argument, holding that “circuit precedent demands a categorical approach to section 924(c)(3)(B).” Eshetu, 898 F.3d at 37 (citing Kennedy, 133 F.3d at 53). The government makes no attempt to explain why this Court's analysis under the elements clause should proceed differently.

         The Court, however, need not-and does not-resolve this question because Thomas's argument fails even under the categorical approach. As the government points out, “[n]o case to date has held that Hobbs Act robbery cannot serve as a predicate offense for § 924(c)-despite robbery frequently serving as a predicate offense for § 924(c) counts in federal cases and even though both Hobbs Act robbery and § 924(c) have been on the books for many years.” Dkt. 24 at 24. To the contrary, every Court of Appeals to consider the question has concluded that Hobbs Act robbery qualifies as a “crime of violence” under § 924(c)(3)(A) when analyzed under the categorical approach. See, e.g., United States v. Garcia-Ortiz, 904 F.3d 102, 105 (1st Cir. 2018), cert. denied, 139 S.Ct. 1208 (2019); United States v. Barrett, 903 F.3d 166, 174 (2d Cir. 2018); United States v. Melgar-Cabrera, 892 F.3d 1053, 1065 (10th Cir.), cert. denied, 139 S.Ct. 494 (2018); United States v. Buck, 847 F.3d 267, 274-75 (5th Cir. 2017); United States v. Gooch, 850 F.3d 285, 292 (6th Cir. 2017); United States v. Anglin, 846 F.3d 954, 965 (7th Cir.), judgment vacated on other grounds, 138 S.Ct. 126 (2017); United States v. Howard, 650 Fed.Appx. 466, 468 (9th Cir. 2016). Thomas's counsel acknowledged as much at oral argument. See Dkt. 31 at 7 (Apr. 5, 2019 Hrg. Tr.) (“[O]n the force clause, I've made my argument, and every court that has looked at it has found it lacking.”). The Court agrees with the reasoning of these decisions, and because Thomas's arguments track those previously made-and rejected- in this substantial body of precedent, the Court will address them only briefly.

         Thomas contends that there are “three ways in which Hobbs Act robbery can be committed without satisfying the force clause.” Dkt. 18 at 10. First, he argues that someone could potentially commit Hobbs Act robbery “via threats to devalue some intangible economic interest like a stock holding or contract right.” Id. at 11. Thomas further contends that even when considering tangible property, “[o]ne can threaten to injure another's property by throwing paint on someone's house, pouring chocolate syrup on one's passport, or spray painting someone's car, ” and it “is plain that such actions do not require violent (i.e. strong) physical force against property, as required under the § 924(c)(3)(A) force clause.” Id. The Supreme Court has cautioned that, when applying the categorical approach, however, there needs to be “a realistic probability, not a theoretical possibility” that the statute will be applied in the way a defendant contends, usually by “point[ing] to his own case or other cases in which the . . . courts in fact did apply the statute in the special (nongeneric) manner for which he argues.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). The cases that Thomas cites in support of this argument, moreover, do not deal with Hobbs Act robbery at all; they instead address Hobbs Act extortion-a separate and distinct criminal offense. See United States v. ...


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