In United States v. St.Hubert, No. 16-10874 (Nov. 15, 2018) (Hull, Marcus, Anderson), the
Court sua sponte modified its earlier opinion in part and applied the
recent en banc decision in Ovalles.
The Court reinstated without
change its earlier analysis rejecting the government's argument that the
defendant's guilty plea waived his argument that his convictions were not
crimes of violence. It also reinstated
without change its holding that Hobbs Act robbery qualified as a crime of
violence under the elements clause in 924(c)(3)(A).
Applying Ovalles'
conduct-based approach, the Court held that the defendant's Hobbs Act robbery
conviction satisfied the residual clause in 924(c)(3)(B). Reviewing the facts admitted at the plea
hearing -- namely, brandishing a firearm and threatening to shoot store
employees during a robbery -- the Court concluded that his offense involved a
substantial risk that physical force may have been used against a person or
property.
The Court also held that the
defendant's attempted Hobbs Act robbery conviction was a crime of violence
under both the elements clause and residual clause in 924(c). As to the residual clause, the Court again
reviewed the facts admitted at the plea hearing -- which involved brandishing
a firearm, holding it against one employee's side while directing another to
open the safe, but fleeing before he could take any money -- and concluded that
this conduct involved a substantial risk that physical force might be used
against a person or property.
Alternatively, the Court reiterated and slightly modified its holding
that attempted Hobbs Act robbery satisfied the elements clause because it
necessarily involves the attempted use of force or threatened force.
