United States v. Smith

          ORDER REGARDING MOTION TO DISMISS COUNTS 3, 4, 5, 6, 11, AND 15: HOBBS ACT CRIMES OF VIOLENCE

          SHARON L. GLEASON UNITED STATES DISTRICT JUDGE

         Before the Court at Docket 300 is Defendant John Pearl Smith, II's motion to dismiss counts 3, 4, 5, 6, 11, and 15. Mr. Smith's motion is grounded in his assertion that Hobbs Act robberies are not “crimes of violence” as defined in 18 U.S.C. § 924(c)(3). The Government filed an opposition.^[1] Mr. Smith did not file a reply.

         The First Superseding Indictment alleges three Hobbs Act robberies: Counts 1, 9, and 13.^[2] Count 1 forms the basis for Counts 3, 4, 5, and 6, which charge use of a firearm in relation to a crime of violence resulting in murder.^[3] Counts 9 and 13 allege different Hobbs Act robberies and respectively form the bases for Counts 11 and 15, which allege use of a firearm in relation to a crime of violence.^[4] Thus, if the Hobbs Act robberies in Counts 1, 9, and 13 are not “crimes of violence, ” there is no predicate foundation for Counts 3, 4, 5, 6, 11, and 15.

         Felonies can qualify as a “crime of violence” in two ways. First, if the crime “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”^[5] This is known as the force clause (also called the elements clause). Second, a crime “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.”^[6] This is known as the residual clause.

         Mr. Smith asserts that a Hobbs Act robbery is not a crime of violence under either clause. He contends that it is not a crime of violence under the force clause because (1) “its extensive definition of ‘fear' does not constitute the threatened use of force” and (2) “the Hobbs Act defines ‘threatened force' so expansively that it includes implied threats of force.”^[7] He contends that the residual clause does not apply because that clause is unconstitutionally vague.^[8]

         I. Hobbs Act robberies are crimes of violence under the force clause.

         In United States v. Howard, an unpublished opinion, the Ninth Circuit held that a Hobbs Act robbery is categorically a crime of violence under 18 U.S.C. § 924(c)(3)(A), the force clause.^[9] Similar to Mr. Smith, the defendant in Howard argued that Hobbs Act robberies are not categorically crimes of violence because they can be committed by placing someone in “fear of injury, ” which does not necessarily involve “the use, attempted use, or threaten use of physical force.”^[10] The Ninth Circuit rejected this argument. Although Howard is an unpublished opinion, it relied on two published Ninth Circuit opinions, United States v. Selfa^[11]and United States v. Mendez.^[12]

         In Selfa, the court interpreted an analogous federal bank robbery statute that may be violated by willful intimidation.^[13] The Selfa Court reasoned that a crime committed by “intimidation”-taking an action that willfully puts a “reasonable person in fear of bodily harm”-meets the requirement of a “threatened use of physical force.”^[14] The Howard Court found that “willfully putting a reasonable person in fear of bodily harm” was similar to the Hobbs Act's requirement of “willfully placing a victim in fear of injury.”^[15] Therefore, the Hobbs Act language also met the requirement of a “threatened use of physical force.”^[16] Accordingly, Hobbs Act robberies qualify as crimes of violence under the force clause because they require a threatened use of physical force.^[17]

         In United States v. Mendez, the Ninth Circuit considered whether a conspiracy to commit a Hobbs Act robbery is categorically a “crime of violence.”^[18] Although the court decided Mendez under the residual clause and specifically “[did] not address whether conspiracy to rob in violation of § 1951 is a ‘crime of violence' under [the elements clause]” the court noted in passing that a completed Hobbs Act robbery “indisputably qualifies as a crime of violence.”^[19] Mr. Smith maintains that “Mendez is no longer good law” and bases this argument on language from decisions in 2013 and 2014.^[20] After those decisions, however, the Ninth Circuit in 2016 has cited Mendez for the proposition that a Hobbs Act robbery is a crime of violence.^[21]

         The Court finds that Hobbs Act robbery constitutes a crime of violence under section 924(c)(3)'s force clause because the offense has, “as an element the use, attempted use, or threatened use of physical force against the person or property of another.”^[22] In doing so, the Court agrees with other circuits^[23] and with other Ninth Circuit district courts^[24] that agree with Howard's conclusion.

         II. The Court does not need to consider whether Hobbs Act robberies are crimes of violence under the residual clause.

         In Johnson v. United States, the Supreme Court considered the constitutionality of the definition of a “violent felony” as used in the Armed Career Criminal Act (ACCA).^[25] The ACCA's definition of “violent felony” includes a residual clause: “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”^[26] The Supreme Court held that this residual clause was unconstitutionally vague in violation of due process, reasoning that it left too much uncertainty as to how to estimate and measure the risk posed by a crime and how must risk was required to be a “violent felony.”^[27] In Sessions v. Dimaya, the Supreme Court applied Johnson to the Immigration and Nationality Act's definition of an aggravated felony and found that it, too, was unconstitutionally vague.^[28]

         Relying on Johnson and Dimaya, Mr. Smith contends that the residual clause of the Hobbs Act is unconstitutionally vague. However, the Court need not decide whether the reasoning of Johnson and Dimaya^[29] extends to the residual clause of the Hobbs Act since the Court has already determined that a Hobbs Act ...