St. Hubert: Hobbs Act Robbery and Attempted Robbery are Crimes of Violence under 924(c)'s Elements and Residual Clauses

In United States v. St. Hubert, No. 16-10874 (Feb. 28, 2018) (Hull, Marcus, Anderson), the Court upheld the defendant's 924(c) convictions predicated on Hobbs Act robbery and attempted Hobbs Act robbery, concluding that both offenses qualified as "crimes of violence" under both the residual and elements clauses of 924(c)(3).

As an initial matter, the Court rejected the government's argument that the defendant's guilty plea waived his argument on appeal that his convictions were not crimes of violence.  As to the defendant's constitutional vagueness argument based on Johnson and the residual clause, the Court concluded that the Supreme Court's recent decision in Class confirmed that a guilty plea does not waive an argument that the offense is unconstitutional.  As to the defendant's statutory argument under the elements clause, the Court re-affirmed its prior precedent that claims challenging the legal sufficiency of the government's affirmative allegations (as opposed to omissions) are jurisdictional and therefore not waived by a guilty plea.

As to Hobbs Act robbery, the Court concluded that it was a crime of violence under the residual clause, relying its decision in Ovalles.  The Court also concluded that it was a crime of violence under the elements clause, relying on its prior SOS decisions in St. Fleur and Colon.  The Court specifically held that its published SOS decisions constitute binding precedent that all subsequent panels are bound to follow, even in direct appeals.

As to attempted Hobbs Act robbery, the Court included a lengthy discussion about why it satisfied the elements clause analysis, relying heavily on its analysis in St. Fleur and Colon.  During that analysis, the Court held that: the Hobbs Act is a divisible statute, with robbery and extortion constituting separate offenses; four circuits have concluded that Hobbs Act robbery satisfied the elements clause using the categorical approach and one did so using the modified categorical approach; contrary to the defendant's argument, the "fear or injury" component of Hobbs Act robbery necessarily required the threatened use of force, relying on its bank robbery precedents and emphasizing that there was no reported Hobbs Act robbery case that did not involve the threatened use of force; Curtis Johnson may be of "limited value" in the 924(c) context due to the textual differences between the elements clauses of 924(c) and ACCA; and attempted Hobbs Act robbery satisfies the elements clause because it requires the "attempted" use of force, relying on other circuits' ACCA cases holding that an attempt to commit a violent felony is itself a violent felony.

Although the Court recognized that, under its precedent, it was bound to apply the categorical approach, the Court included a favorable discussion of a Third Circuit decision applying the modified categorical approach in the 924(c) context.  The Court agreed with the Third Circuit that, unlike in the ACCA context, it made more sense to apply the modified categorical approach in the 924(c) context, because the analysis focused on a charged offense, not a prior conviction.  It nonetheless recognized that it was bound to apply the categorical approach.

Finally, the Court noted that it had denied the defendant's motion to stay the appeal pending the Supreme Court's forthcoming decision in Dimaya, because that decision would not impact the result "no matter the outcome."  The Court identified three distinctions between 16(b), the statute at issue in Dimaya, and 924(c): 1) 16(b) applies to prior convictions, not contemporaneous charged offenses; 2) the categorical approach plays a more limited role in the 924(c) context than in the 16(b) (and ACCA) contexts, because it applies only to federal crimes; and 3) 924(c), unlike 16(b) and ACCA, does not require courts to discern some common cross-jurisdictional character for a variety of different predicate offenses.

Lisa Branch

Today the Senate confirmed Lisa Branch of Georgia as the newest member of the Eleventh Circuit by a vote of 73-23.  A thorough overview of her background is available at the link below.

https://vettingroom.org/tag/lisa-branch/

Joyner: Supplemental Jury Instruction on Possession was not Abuse of Discretion, and Attempted Florida Robbery is a Violent Felony

In United States v. Joyner, No. 16-17285 (Feb. 22, 2018) (Hull, Marcus, Fay), the Court upheld the defendant's felon-in-possession conviction and ACCA sentence.

As to the conviction, the Court concluded that the district court did not abuse its discretion in supplementing its jury instruction on possession in response to a jury question.  The Court reasoned that the court's original possession instruction was correct, the court's answer referred back to the original instruction, it did not misstate the law, and it appropriately resolved any potential confusion in light of the government's theory of the case.  The Court further noted that the defendant's proposed response was not a correct statement of the law, and the court's answer was more beneficial to the defendant.  The Court rejected the defendant's argument that the district court was required to say more given its substantial discretion.

As for the ACCA sentence, the Court held that attempted Florida robbery satisfied the elements clause, relying on its prior precedents holding that substantive robbery satisfied the elements clause.  Notably, and as the Court itself observed, the defendant did not argue that the attempt component distinguished his offense from substantive robbery, and so the Court did not address any of the arguments for why attempted robbery might be different than substantive robbery.  The Court also reiterated its prior precedent that resisting with violence satisfied the elements clause, and that prior convictions need not be charged in the indictment or proved beyond a reasonable doubt.

Cintron: Florida Statute 893.135 is Indivisible

In Cintron v. U.S. Att'y Gen., Nos. 15-12344 & 14352 (Feb. 20, 2018) (Jill Pryor, Marcus, Siler), the Court held that a drug conviction under Fla. Stat. 813.135(1)(c)1 was not an aggravated felony for immigration purposes.  

In so holding, the Court concluded that the statute was indivisible after Mathis, and it analyzed how to distinguish between means and elements.  It reasoned that the statutory language of 893.135 itself strongly suggested that the various ways to commit the offense (e.g., sell, purchase, manufacture, etc...) were means, not elements, because they were all one way to commit the single offense of trafficking.  This conclusion was also consistent with how Florida courts had characterized the statute.  And the Court distinguished its precedent holding that Fla. Stat. 893.13 was divisible, because the statutory structure and case law interpreting that statute suggested that the ways to commit that drug-trafficking offense were separate elements, not means.  That distinction, moreover, was reflected in the standard jury instructions for each statute.  Although the Court recognized in footnote 8 that brackets often suggest alternative elements, not means, that was not the case with 893.135, since they just defined alternative ways to commit a single crime; and, in any event, Mathis required the Court to look first to the statutory language and case law, which it found conclusive.

Deshazior: Florida Sexual Battery with a Deadly Weapon Satisfies the Element Clause of the ACCA

In United States v. Deshazior, No. 16-11373 (Feb. 20, 2018) (Reeves (E.D. Ky), Jordan, Jill Pryor), the Court upheld the defendant's ACCA enhancement.

After reiterating its prior precedents holding that Florida aggravated assault and resisting with violence qualified as violent felonies under the elements clause, the Court held that Florida sexual battery also satisfied that definition.  Although the Court, in an earlier case, had accepted the government's concession that Florida sexual battery did not satisfy the elements clause, it did so only for purposes of that case, and the sexual battery offense here required the use or threatened use of a deadly weapon.  Determining that the sexual battery statute was divisible, in part by consulting the standard jury instructions, the Court consulted the information in his case, which showed that his sexual battery involved the use or threatened use of a deadly weapon.  

The Court thus addressed whether the use or threatened use of a deadly weapon necessarily involved the use, attempted use, or threatened use of physical force.  It concluded that it did.  It rejected the defendant's argument that the offense was overbroad because a "deadly weapon" could include poison/anthrax, bleach, or an attack dog.  The Court acknowledged that those uses of force were not direct, but it concluded that they were nonetheless capable of causing physical injury or pain and thus satisfied the elements clause.  Relying on the Supreme Court's decision in Castleman, the Court concluded that it did not matter whether the force was applied indirectly rather than directly.