United States District Court, D. Alaska
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United States v. Howard, an unpublished opinion, the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 ...