United States v. Eric Scott

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 20-1514

_____________

UNITED STATES OF AMERICA

v.

ERIC SCOTT,

Appellant

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-19-cr-00565-001)

District Judge: Hon. Mitchell S. Goldberg

_______________

Argued January 13, 2021

Before: AMBRO, KRAUSE, and PHIPPS, Circuit Judges.

(Filed: September 22, 2021)

_______________

Christy Martin

Brett G. Sweitzer [ARGUED]

Federal Community Defender Office for the Eastern District

of Pennsylvania

601 Walnut Street

The Curtis Center – Suite 540 West

Philadelphia, PA 19106

Counsel for Appellant

Jason Bologna

Robert A. Zauzmer [ARGUED]

Office of United States Attorney

615 Chestnut Street – Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

_______________

OPINION OF THE COURT

_______________

KRAUSE, Circuit Judge.

This appeal requires us to decide whether Hobbs Act

robbery is a “crime of violence” under the career offender

provision of the United States Sentencing Guidelines.

U.S.S.G. § 4B1.2(a). To answer that question, we must apply

the oft-bedeviling categorical approach and compare the

statutory offense with the definition of “crime of violence”

found in the Guidelines. We now hold, along with every Court

of Appeals to address the issue, that Hobbs Act robbery sweeps

more broadly than the career offender guideline and therefore

does not qualify as a crime of violence. Given both the text of

the Guidelines and the consensus of the Courts of Appeals, we

also conclude that—at least as of the disposition of this

appeal—the error qualifies as plain. We will vacate Appellant

Eric Scott’s sentence and remand for resentencing.

I. Factual and Procedural Background

In February 2020, Scott was sentenced for possessing a

firearm as a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1). In anticipation of sentencing, the United States

Probation Office prepared a Presentence Report (PSR) that

included a career offender enhancement under U.S.S.G.

§ 2K2.1(a)(2), which applies if a defendant “committed any

part of the instant offense subsequent to sustaining at least two

felony convictions of either a crime of violence or a controlled

substance offense.” Here, two prior convictions formed the

basis for that enhancement: a 2019 conviction for possession

of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1),

and a 2019 conviction for Hobbs Act robbery in violation of 18

U.S.C. § 1951(b)(1) and for using and carrying a firearm

during and in relation to a crime of violence in violation of 18

U.S.C. § 924(c). The PSR assigned an enhanced base offense

level of 24 pursuant to U.S.S.G. § 2K2.1(a)(2). The proposed

2

total offense level carried with it an advisory guideline range

of 84–105 months in prison.

Of relevance to this appeal, neither Scott nor the

Government challenged the enhancement or any of the

calculations in the PSR before the sentencing court. Instead,

Scott sought a sentence of 84 months—the bottom of the

Guidelines range—to run concurrently with a previously

imposed 70-month sentence, and the Government disagreed

only in that it sought a term consecutive to the other federal

sentence. The District Court adopted the PSR’s conclusions

and sentenced Scott to 90 months’ imprisonment consecutive

to the existing sentence, three years of supervised release, and

a $100 special assessment.

On appeal, Scott argues that it was reversible error to

sentence him as a career offender because Hobbs Act robbery

is not a “crime of violence” as defined in the federal Sentencing

Guidelines. We now turn to that question.

II. Discussion

The District Court exercised jurisdiction under 18

U.S.C. § 3231, and we have jurisdiction under 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(a), as this case presents an appeal

of a sentence imposed under the Sentencing Reform Act of

1984. Whether an offense qualifies as a crime of violence

under the Sentencing Guidelines is a legal question that this

Court typically reviews de novo. United States v. Henderson,

841 F.3d 623, 626 (3d Cir. 2016). Because Scott raises this

issue for the first time on appeal, however, we review it for

plain error. United States v. Couch, 291 F.3d 251, 252–53 (3d

Cir. 2002). We must decide, in other words, whether (1) the

conclusion that Hobbs Act robbery constitutes a crime of

violence was error and, if so, whether the error (2) is “plain,”

(3) “affect[s] substantial rights,” and (4) “seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings.”

United States v. Olano, 507 U.S. 725, 732–36 (1993)

(alterations in original) (citations omitted); Fed. R. Crim. P.

52(b). Scott has the burden of demonstrating each. Olano, 507

U.S. at 734–35.

3

We address whether it was error to deem Hobbs Act

robbery a crime of violence under U.S.S.G. § 2K2.1(a)(2), and

because we conclude that it was, we then consider whether the

remaining Olano factors are met. Id. at 734.

A. Hobbs Act Robbery is Not a Crime of Violence

Under the Guidelines

We begin by applying the now-familiar categorical

approach to determine whether Scott’s Hobbs Act robbery

conviction qualifies as a predicate “crime of violence” for the

purposes of a career offender enhancement. Notwithstanding

the bizarre results it sometimes produces, this analytical

framework compels us to look “not to the facts of the particular

prior case,” but to the statutory definition of the crime of

conviction. Moncrieffe v. Holder, 569 U.S. 184, 190 (2013)

(internal quotation marks omitted). We compare the scope of

the conduct covered by the elements of Hobbs Act robbery

with the definitions of “crime of violence” found in the

Sentencing Guidelines to determine “if the statute’s elements

are the same as, or narrower than, those of the generic offense.”

Descamps v. United States, 570 U.S. 254, 257 (2013). But if

“the least culpable conduct hypothetically necessary to sustain

a conviction under the [Hobbs Act],” United States v. Dahl,

833 F.3d 345, 350 (3d Cir. 2016) (citation omitted), would not

be a crime of violence under the Guidelines, then any

“conviction under that law cannot count as a[] [‘crime of

violence’] predicate,” Descamps, 570 U.S. at 261. Under the

categorical approach, “a prior crime [will] qualify as a

predicate offense in all cases or in none.” Id. at 268.

Under the Sentencing Guidelines, a statutory offense

can qualify as a “crime of violence” under Section 4B1.2(a)(1),

which encompasses statutes having “as an element the use,

attempted use, or threatened use of physical force against the

person of another” (the “Elements Clause”), or Section

4B1.2(a)(2), which lists particular offenses deemed “crimes of

violence” for Guidelines purposes (the “Enumerated Offenses

Clause”). Hobbs Act robbery satisfies neither.

A plain reading of the text demonstrates that the

definition of “crime of violence” in the Guidelines covers the

use of force or threats of force only against persons, see

4

U.S.S.G. § 4B1.2(a), so there can be no categorical match with

Hobbs Act robbery, which by its terms includes crimes against

property, see 18 U.S.C. § 1951(b)(1). In so holding, we join

the chorus of voices concluding that Hobbs Act robbery is not

categorically a crime of violence under the Guidelines.1 See

United States v. Prigan, — F.4th —, No. 18-30238, 2021 WL

3612176, at *3–5 (9th Cir. Aug. 16, 2021); United States v.

Green, 996 F.3d 176, 181 (4th Cir. 2021); Bridges v. United

States, 991 F.3d 793, 801 (7th Cir. 2021); United States v.

Eason, 953 F.3d 1184, 1189–93 (11th Cir. 2020); United States

v. Camp, 903 F.3d 594, 600–04 (6th Cir. 2018), cert. denied,

— U.S. —, 139 S. Ct. 845 (2019); United States v. O’Connor,

874 F.3d 1147, 1153–58 (10th Cir. 2017); see also United

States v. Edling, 895 F.3d 1153, 1157–58 (9th Cir. 2018)

(reaching the same conclusion when analyzing a state statute

identical to Hobbs Act robbery in all relevant respects).

1. Hobbs Act Robbery Does Not Satisfy the Elements

Clause

We need not tarry long over the Elements Clause. That

clause defines crimes of violence as those offenses that have

“as an element the use, attempted use, or threatened use of

physical force against the person of another.” U.S.S.G.

§ 4B1.2(a)(1). Hobbs Act robbery, on the other hand, means

“the unlawful taking from the person of another . . . by means

of actual or threatened force, or violence, or fear of injury,

immediate or future, to his person or property.” 18 U.S.C.

§ 1951(b)(1). Because the Elements Clause restricts the object

1

In contrast to the Guidelines, a “crime of violence”

under 18 U.S.C. § 924(c)(3)(A) does posit force “against the

person or property of another.” Thus, Hobbs Act robbery is a

categorical match with the elements of § 924(c)(3)(A) as we

recently recognized in United States v. Walker, 990 F.3d 316,

324–25 (3d Cir. 2021); see also United States v. O’Connor,

874 F.3d 1147, 1158 (10th Cir. 2017) (“There is nothing

incongruous about holding that Hobbs Act robbery is a crime

of violence for purposes of 18 U.S.C. § 924(c)(3)(A), which

includes force against a person or property, but not for

purposes of U.S.S.G. 4B1.2(a)(1), which is limited to force

against a person.”).

5

of the use of force to “the person of another,” whereas Hobbs

Act robbery extends to the use of force against the “person or

property” of another, even the Government concedes the

elements are not a categorical match.

2. Hobbs Act Robbery Also Sweeps More Broadly

than Robbery Under the Enumerated Offenses

Clause

To ascertain if a felony qualifies as a crime of violence

under the Enumerated Offenses Clause, we disregard the label

on the offense and “‘look to whether the conduct necessarily

proven as a prerequisite’ for the defendant’s conviction under

the statute is ‘a natural equivalent to the offense as envisioned

by the Guidelines’ drafters.’” Eason, 953 F.3d at 1193

(citation omitted). The Government points to “robbery” as one

natural equivalent among the enumerated offenses. Again,

however, it is not a categorical match for the simple reason that

Hobbs Act robbery reaches force against property, while

guidelines robbery does not.

Because the Guidelines do not define “robbery,” we

revert to its generic meaning, see United States v. Graves, 877

F.3d 494, 501–02 (3d Cir. 2017), which is “the taking of

property from another person or from the immediate presence

of another person by force or by intimidation,” United States

v. McCants, 952 F.3d 416, 428–29 (3d Cir. 2020). Although

the taking itself requires “no more than de minimis force,” we

have previously recognized that such use of force necessarily

“implies personal violence.” Graves, 877 F.3d at 502–03; see

also Camp, 903 F.3d at 601–02; O’Connor, 874 F.3d at 1155.

Hobbs Act robbery differs in that it also reaches conduct

directed at property that “do[es] not necessarily create a danger

to the person.” Camp, 903 F.3d at 602 (emphasis omitted).2

2

Although the inclusion of injury to property in Hobbs

Act robbery is itself sufficient to preclude a categorical match

with guidelines robbery, we note that Hobbs Act robbery is

also broader than generic robbery in that it permits conviction

based on force, “immediate or future,” to a person or

property, 18 U.S.C. § 1951(b)(1) (emphasis added), while

6

3. The Government Cannot Avoid the Plain Language

of the Guidelines

In an attempt to circumvent the plain language of the

Guidelines, the Government offers up a creative but ultimately

unsuccessful argument. It contends that we can combine our

consideration of different enumerated offenses for purposes of

a categorical analysis, and that, if we do, a combination of the

conduct covered by guidelines robbery and extortion produces

a categorical match with Hobbs Act robbery.

We agree with the Government that we may consider a

combination of enumerated offenses. The Guidelines define

“crime of violence” as “any [of the enumerated] offense[s]

under federal or state law,” U.S.S.G. § 4B1.2(a) (emphasis

added), and our sister circuits agree that “nothing in the

Guidelines or related authorities suggests a court is limited to

considering only a single corresponding crime of violence

when evaluating a state statute under the categorical

framework.” United States v. Castillo, 811 F.3d 342, 347 (10th

Cir. 2015), superseded by regulation on other grounds as

recognized in O’Connor, 874 F.3d at 1152.3 A combination of

guidelines robbery and extortion, however, does not salvage

the Government’s case. We already know that guidelines

robbery does not reach force against property. See supra

Section II.A.2. But neither does guidelines extortion.

The Guidelines define extortion as “obtaining

something of value from another by the wrongful use of (A)

guidelines robbery is limited to immediate danger to the

victim. See Camp, 903 F.3d at 601–02.

3

See, e.g., United States v. Becerril-Lopez, 541 F.3d

881, 891–92 (9th Cir. 2008) (reasoning that if state conviction

is a categorical match to a combination of Guidelines-

described robbery and extortion, it is a crime of violence),

superseded by regulation on other grounds as recognized in

United States v. Bankston, 901 F.3d 1100, 1104 (9th Cir.

2018); Eason, 953 F.3d at 1193 (“Both circuits that have

addressed this issue—the Sixth and the Tenth—have held that

Hobbs Act robbery does not satisfy either enumerated offense

or some combination of both offenses. . . . We agree with

them.”).

7

force, (B) fear of physical injury, or (C) threat of physical

injury.” U.S.S.G. § 4B1.2. The Government points to the fact

that guidelines extortion is defined to include “fear . . . or threat

of physical injury,” and argues—focusing on the word

“physical” alone—that extortion is capacious enough to reach

injury to property. But “[t]he definition of words in isolation

. . . is not necessarily controlling in statutory construction.”

Dolan v. U.S.P.S., 546 U.S. 481, 486 (2006).4 To the contrary,

the Supreme Court has cautioned against “attempt[ing] to

break down [a] term into its constituent words,” for doing so

“is not apt to illuminate its meaning.” Sullivan v. Stroop, 496

U.S. 478, 483 (1990).

The most natural reading of “physical injury” is as a

single term that excludes harm to property. That is because

“physical” operates as an adjective, modifying the word

“injury,” and together they connote “bodily injury,” meaning

“[p]hysical damage to a person’s body.” Physical Injury,

Black’s Law Dictionary (11th ed. 2019); id. (Bodily Injury).

Were there any doubt, that is the way “physical injury” is used

consistently throughout the Guidelines, see, e.g., U.S.S.G.

§ 5K2.2,5 and we read “identical words used in different parts

of the same act . . . to have the same meaning,”6 Atl. Cleaners

4

The same “[b]asic tenets of statutory construction,”

including the use of canons of construction, apply when

interpreting the Sentencing Guidelines. See United States v.

Grier, 585 F.3d 138, 143 (3d Cir. 2009) (citing United States

v. Milan, 304 F.3d 273, 294 (3d Cir. 2002)).

5

See also, e.g., U.S.S.G. § 2J1.2(b)(1)(B); § 5K2.12;

§ 2B1.1 cmt. background; § 5K2.0 cmt. n.3(B)(ii);

§ 2J1.3(b)(1).

6

When parsing the different types of injury to persons,

the Guidelines sometimes use the term “bodily injury” to

contrast “psychological injury,” U.S.S.G. §§ 2N1.1 cmt. n.1,

2Q1.2 cmt. n.9(B); “reputation[al]” injury, id. § 2B3.3 cmt.

background; or “personal injury,” id. § 5K2.1. See generally

Physical Injury, Black’s Law Dictionary (11th ed. 2019); Id.

(Bodily Injury). To the extent the Government relies on the

appearance of this term to argue physical injury must have a

different meaning, encompassing harm to property, it does

not account for the comparative context in which “bodily

8

& Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932).

Given that consistent usage, the Court cannot escape the

maxim that “[a] term appearing in several places in a statutory

text is generally read the same way each time it appears.”

Ratzlaf v. United States, 510 U.S. 135, 143 (1994).

In contrast, when the Sentencing Commission refers to

injury to property, it does so using the terms “damage,” “loss,”

or “destruction.” See, e.g., id. at §§ 5K2.5 (referring to

“property damage or loss”); 2C1.1(c)(3) (referring to “property

destruction”); see also supra n.5. So when the Commission

defined guidelines extortion using the term “physical injury,”

we must assume it did so deliberately and consistently with its

usage in surrounding provisions because “differences in

language . . . convey differences in meaning.” Henson v.

Santander Consumer USA Inc., 137 S. Ct. 1718, 1723 (2017)

(citation omitted).

In short, the complexity of the Government’s argument

cannot obscure the simplicity of the categorical mismatch

before us: whether we compare it to guidelines robbery or

guidelines extortion, Hobbs Act robbery sweeps more broadly

by including force against property, not just persons. We thus

join every Circuit to have considered this question in

concluding that Hobbs Act robbery is not a “crime of violence”

under the Guidelines.

B. The Error Is Plain

Because Hobbs Act robbery is not a crime of violence,

it was error to count it as a predicate offense for Scott’s career

offender enhancement. See U.S.S.G. § 2K2.1(a)(2). All that

remains, then, is to decide if the outstanding Olano factors are

met, i.e., if the error is plain, if it affects the defendant’s

“substantial rights,” and, if so, whether leaving it uncorrected

would “seriously affect[] the fairness, integrity or public

reputation of judicial proceedings.” Olano, 507 U.S. at 733–

36 (citations omitted). Each of these prongs is satisfied here

by the application of the career offender enhancement.

injury” is used, or the equivalence of “physical injury” and

“bodily injury” elsewhere throughout the Guidelines.

9

An error is “plain” where it is “clear” or “obvious,”

Olano, 507 U.S. at 734, and it need not be clear or obvious

under a “perfectly analogous case,” Irvin, 369 F.3d at 290, or

even under the case law of the circuit, especially where, as

here, the error is one of textual interpretation, see United States

v. Cole, 567 F.3d 110, 117 (3d Cir. 2009). As we have

previously observed, “the lack of [in-circuit] case law on th[e]

specific question does not doom [a finding of plain error],”

United States v. Husmann, 765 F.3d 169, 177 (3d Cir. 2014),

where there are out-of-circuit “decision[s] . . . sufficiently on-

point,” Irvin, 369 F.3d at 292. It is sufficient that the “great

weight of [persuasive] authority” supports a contrary result,

Cole, 567 F.3d at 118, and that threshold is met so long as “the

Courts of Appeals that have addressed the question have

uniformly held” it so, United States v. Benjamin, 711 F.3d 371,

379 (3d Cir. 2013); see also Cole, 567 F.3d at 118.

Such is the case here. Of the six Courts of Appeals to

consider the Guidelines enhancement, every one has reviewed

the language of the Guidelines and the text of the Hobbs Act

and has held that its application to the robbery offense is error.7

See Prigan, — F.4th —, 2021 WL 3612176, at *1 (Hobbs Act

robbery); Green, 996 F.3d at 184 (same); Bridges, 991 F.3d at

802 (same); Eason, 953 F.3d at 1195 (same); Camp, 903 F.3d

at 604 (same); cf. Edling, 895 F.3d at 1157 (equivalent state

robbery statute); O’Connor, 874 F.3d 1147 (reaching the same

conclusion regarding Hobbs Act robbery under the rule of

lenity).

Of course, we in no way fault the District Court for

failing to appreciate the significance of this unanimity. Indeed,

it could not have done so, for four of the six decisions post-

dated Scott’s sentencing. But “plain-error review is not a

grading system for trial judges. It has broader purposes,

including . . . allowing courts of appeals better to identify those

7

Four of those courts relied on a non-precedential

opinion of our Court, United States v. Rodriguez, 770 F.

App’x 18, 21–22 (3d Cir. 2019), agreeing with its reasoning

and conclusion. See Prigan, — F.4th —, 2021 WL 3612176,

at *1;. Green, 996 F.3d at 179; Bridges, 991 F.3d at 800;

Eason, 953 F.3d at 1193 n.6. Today, we too endorse that

reasoning precedentially.

10

instances in which the application of a new rule of law to cases

on appeal will meet the demands of fairness and judicial

integrity.” Henderson, 568 U.S. at 278 (citing Johnson v.

United State, 520 U.S. 461, 467–68 (1997); Olano, 507 U.S. at

732). With that focus on fairness and judicial integrity in

correcting errors on appeal, we assess whether “an error [is]

‘plain’ at the time of appellate consideration,” Johnson, 520

U.S. at 468, regardless of the state of the law at the time of the

district court’s disposition.

Because our inquiry is simply whether the “error [is]

plain ‘under current law,’” id. at 467 (emphasis added), a

district court’s ruling may be reasonable or even correct under

the law at the time of its decision, yet it can become “error,”

and error that is “plain,” as a result of intervening authority, id.

at 468. That authority may emanate from the Supreme Court

or from a consensus among the Circuits. That is because, as

the Supreme Court made explicit, the Courts of Appeals, not

just the Supreme Court, “clarify the law through their

opinions,” and whether such a clarification renders an earlier

district court decision to the contrary “plainly erroneous” is a

“matter[] of degree, not kind.” Henderson, 568 U.S. at 278.

Here we have not merely consensus, but complete

unanimity, as might be expected after each and every one of

those Circuits has plodded through the requisite categorical

analysis8 concluding that the plain language of the Guidelines

8

To be sure, the categorical approach as an analytical

tool may be anything but plain in the colloquial sense. But

we are tasked with assessing “plain error” as a legal term of

art, guided by our precedent. See Husmann, 765 F.3d at 177.

Under that precedent, the categorical approach itself does not

foreclose plain error. To the contrary, the Supreme Court has

cautioned “that a ‘per se approach to plain-error review is

flawed.’” Puckett v. United States, 556 U.S. 129, 142 (2009)

(citation omitted). And for that reason, this Court and other

Courts of Appeals have often found plain error in a district

court’s application of the categorical approach,

notwithstanding the explication necessary for that analysis.

See, e.g., United States v. Dahl, 833 F.3d 345, 357–58 (3d

Cir. 2016); United States v. Titties, 852 F.3d 1257, 1275 (10th

11

precludes Hobbs Act robbery from qualifying as a crime of

violence under U.S.S.G. § 4B1.2(a). Nor is this unanimity

surprising given “[t]hat [the] error was clear in light of the plain

language of the relevant Guidelines provision” itself. United

States v. Stinson, 734 F.3d 180, 187 (3d Cir. 2013); see supra

Section II.A.2.i. And “[c]oupled with the relative clarity of the

Sentencing Guidelines,” this consensus is sufficient “to satisfy

the requirement that error be ‘plain.’” Irvin, 369 F.3d at 292;

accord Cole, 567 F.3d at 117 (determining that the unanimous

decisions of four Circuits interpreting the same text rendered

error plain).

To establish this error affected his substantial rights,

Scott must show it “prejudic[ed] [him],” and “affected the

outcome of the district court proceedings.” Olano, 507 U.S. at

734. The Government concedes it did: Without the crime of

violence enhancement, Scott’s base offense level was 20, with

a range of 57 to 71 months’ imprisonment, but with it, his

offense level became 24, producing a range of 84 to 105

months—and, in fact, he was sentenced to 90 months’

imprisonment. Because there is no doubt that, “but for the

claimed error, ‘the result of the proceeding would have been

different,’” Scott has met his burden of “[d]emonstrating ‘a

prejudicial effect on the outcome of [his] judicial proceeding.’”

United States v. Payano, 930 F.3d 186, 192 (3d Cir. 2019)

(citation omitted).

At the final prong of Olano, we need not correct this

error unless it “seriously affect[s] the fairness, integrity or

public reputation of judicial proceedings.” Olano, 507 U.S. at

736 (alteration in original). But, again, Scott has carried his

burden. In Rosales-Mireles v. United States, the Supreme

Court explained that, “[i]n the context of a plain Guidelines

error that affects substantial rights, that diminished view of

[judicial] proceedings ordinarily will satisfy Olano’s fourth

prong,” for “what reasonable citizen wouldn’t bear a rightly

diminished view of the judicial process and its integrity if

courts refused to correct obvious errors of their own devise that

threaten to require individuals to linger longer in federal prison

than the law demands?” 138 S. Ct. 1897, 1908 (2018). Thus,

Cir. 2017); United States v. Reyes-Ochoa, 861 F.3d 582, 587–

89 (5th Cir. 2017).

12

in view of Rosales-Mireles, the erroneous sentencing-

guideline calculation, left uncorrected, would impose a “risk of

unnecessary deprivation of liberty [that] particularly

undermines the fairness, integrity, or public reputation of

judicial proceedings.” Id.

III. Conclusion

For the foregoing reasons, we will vacate Scott’s

sentence and remand for resentencing in line with this opinion.

13

United States of America v. Scott, No. 20-1514

PHIPPS, Circuit Judge, dissenting.

The Majority Opinion ably performs a complex and

detailed legal analysis to conclude for the first time

precedentially in this Circuit that, under the categorical

approach, Hobbs Act robbery, see 18 U.S.C. § 1951(b)(1), is

not a “crime of violence” under the career-offender provision

of the United States Sentencing Guidelines, see U.S.S.G.

§ 4B1.2(a). Because Appellant did not preserve that issue in

District Court, the plain-error standard governs his appeal.

Consistent with its namesake, that standard, through its second

prong, requires more than just a finding of error: the error must

also be plain. Here, the legal analysis is intricate, if not

abstruse – anything but plain – and for that reason, I do not

believe that Appellant satisfies the ‘plain’ requirement for

plain-error review. Accordingly, I would affirm the judgment

of the District Court, and I respectfully dissent.

An error is plain when it is “obvious” or, equivalently,

“clear under current law.”1 The more complex or

counterintuitive the legal analysis is, the less plain it is.2 In this

1

United States v. Olano, 507 U.S. 725, 734 (1993) (‘“Plain’ is

synonymous with ‘clear’ or, equivalently, ‘obvious.’”); United

States v. Vazquez, 271 F.3d 93, 100 (3d Cir. 2001) (en banc);

see also Fed. R. Crim. P. 52(b); Charles Alan Wright, Arthur

A. Miller & Peter J. Henning, 3B Federal Practice &

Procedure – Federal Rules of Criminal Procedure § 856

(4th ed. Oct. 2020 Update).

2

See United States v. Jabateh, 974 F.3d 281, 299 (3d Cir.

2020) (explaining that as the inquiry becomes deeper, the

1

case, the legal analysis – which involves the categorical

approach – is both complex and counterintuitive. And before

today, this Circuit had not precedentially applied the

categorical approach to the dispositive issue here: whether

Hobbs Act robbery constitutes a crime of violence under the

Guidelines.3 Yet as the Supreme Court has held, “a court of

appeals cannot correct an error [on plain-error review] unless

the error is clear under current law.”4

As far as I can tell, no one has ever described the categorical

approach as clear, obvious, simple, or straightforward.5 To the

contrary, one Supreme Court Justice explained that the

categorical approach requires “sentencing judges to delve into

pointless abstract questions,” as opposed to “real-world”

considerations.6 Another Justice recognized that the approach

produces “arbitrary and inequitable results.”7 A third Justice

described it as an “absurdity,” explaining that it “is difficult to

correct outcome becomes “less obvious”), petition for

certiorari docketed, 20-1369 (U.S. 2021).

3

Cf. United States v. Rodriguez, 770 F. App’x. 18 (3d Cir.

2019) (nonprecedential).

4

Olano, 507 U.S. at 734.

5

Even proponents of the categorical approach confess that

“[a]t first blush, it may seem counterintuitive.” Amit Jain &

Phillip Dane Warren, An Ode to the Categorical Approach,

67 UCLA L. Rev. Disc. 132, 138 (2019).

6

Mathis v. United States, 136 S. Ct. 2243, 2268–69 (2016)

(Alito, J., dissenting).

7

Id. at 2258 (Kennedy, J., concurring).

2

apply.”8 Two other Justices expressed concern that the

categorical approach “unnecessarily complicate[s] federal

sentencing law.”9 And several other Justices joined in the

remark that under the categorical approach, “[s]omething has

gone badly astray.”10

Similarly, no judge in this Circuit has described the

categorical approach as obvious or clear. One colleague

explained that it requires judges “to close their eyes to what is

obvious,”11 while another described its “catechism of inquiry”

as “ludicrous.”12 Moreover, multiple precedential opinions

8

Quarles v. United States, 139 S. Ct. 1872, 1880–81 (2019)

(Thomas, J., concurring).

9

Mathis, 136 S. Ct. at 2259 (Breyer, J., dissenting, joined by

Ginsburg, J.).

10

See Borden v. United States, 141 S. Ct. 1817, 1856 (2021)

(Kavanaugh, J., dissenting, joined by Roberts, Alito, and

Barrett, JJ.) (“Something has gone badly astray when this

Court is suggesting that second-degree murder and

manslaughter might not involve the ‘use of physical force

against the person of another.’”). See generally United States

v. Williams, 898 F.3d 323, 336 (3d Cir. 2018) (Hardiman, J.,

concurring in part and concurring in the judgment) (observing

that “several Justices have expressed dissatisfaction with the

categorical approach generally”).

11

United States v. Chapman, 866 F.3d 129, 139 (3d Cir. 2017)

(Jordan, J., concurring).

12

Williams, 898 F.3d at 337 (Roth, J., concurring).

3

recognize that the approach is “counterintuitive,”13 and another

expressed “dismay at having to employ the categorical

approach.”14 Even the Majority Opinion characterizes the

categorical approach as “oft-bedeviling.”

Those assessments are widely shared by judges in our sister

circuits. Beyond expressions of disbelief as to the outcomes it

generates,15 they have described the approach as

“complicated,”16 an “absurd[] exercise,”17 a “judicial

charade,”18 a “protracted ruse” for paradoxical findings,19 a

“morass” requiring “legal gymnastics,”20 a “long-baffling”

13

Cabeda v. Att’y Gen., 971 F.3d 165, 166 (3d Cir. 2020);

United States v. Mayo, 901 F.3d 218, 230 (3d Cir. 2018).

14

Moreno v. Att’y Gen., 887 F.3d 160, 163 n.3 (3d Cir. 2018).

15

See, e.g., United States v. Begay, 934 F.3d 1033, 1042

(9th Cir. 2019) (Smith, N.R., J., dissenting in part)

(“MURDER in the second-degree is NOT a crime of

violence???”).

16

United States v. Perez-Silvan, 861 F.3d 935, 944 (9th Cir.

2017) (Owens, J., concurring).

17

United States v. Scott, 990 F.3d 94, 125 (2d Cir. 2021) (en

banc) (Park, J., concurring), petition for certiorari docketed,

20-7778 (U.S. 2021).

18

Ovalles v. United States, 905 F.3d 1231, 1253 (11th Cir.

2018) (en banc) (Pryor, J., concurring).

19

United States v. Doctor, 842 F.3d 306, 313 (4th Cir. 2016)

(Wilkinson, J., concurring).

20

Lopez-Aguilar v. Barr, 948 F.3d 1148, 1149 (9th Cir. 2020)

(Graber, J., concurring).

4

undertaking,21 a “struggle[] to understand,”22 and an inquiry

that “crush[es] common sense”23 with “bizarre” effects that

lead to judicial “puzzlement.”24

But the Majority Opinion says that the application of the

categorical approach here is clear and obvious. It does so even

despite the lack of on-point, binding circuit precedent.

If nothing else, the deep and layered analysis that the

Majority Opinion admirably undertakes demonstrates that the

error here was not obvious or clear under current law. The

Majority Opinion first examines the relevant elements of

Hobbs Act robbery. Next, it accounts for both methods

through which a prior offense may qualify as a crime of

violence under the career-offender Guideline, see U.S.S.G.

§ 4B1.2(a). Then it rules out the first of those methods, the

elemental approach, because the elements of Hobbs Act

robbery sweep more broadly than the elements identified in

that Guideline. For the second method, the enumerated-

offense approach, the Majority Opinion identifies two

enumerated offenses (extortion and robbery) as candidates for

elemental equivalence to Hobbs Act robbery. The Majority

Opinion then sets forth the Guidelines’ elemental definition of

21

United States v. Burris, 912 F.3d 386, 407 (6th Cir. 2019)

(en banc) (Thapar, J., concurring).

22

United States v. Aguila-Montes de Oca, 655 F.3d 915, 917

(9th Cir. 2011) (en banc).

23

United States v. Escalante, 933 F.3d 395, 406 (5th Cir.

2019).

24

United States v. Valdivia-Flores, 876 F.3d 1201, 1210

(9th Cir. 2017) (O’Scannlain, J., specially concurring).

5

the first offense, extortion. For the other enumerated offense,

robbery, however, the Majority Opinion references a generic

meaning for that offense. After doing so, it determines – for

the first time precedentially in this Circuit – that the elements

of those two enumerated offenses may be combined for

purposes of the categorical approach. The Majority Opinion

then concludes that Hobbs Act robbery sweeps more broadly

than the combined elements of both of those enumerated

offenses. It does so through a detailed textual analysis that

examines the usage of ‘physical injury’ throughout the

Sentencing Guidelines to conclude that the term excludes harm

to property. And because Hobbs Act robbery can be proved by

harm to property, it does not categorically match the combined

elements of robbery and extortion under the Guidelines.

That is a lot of work for an obvious conclusion. Many of

those steps are not obvious or clear in themselves. And in

aggregate, the categorical-approach analysis needed to

establish error is far removed from what can be fairly described

as obvious or clear.25 The outcome, too, strains common sense:

the conclusion that Hobbs Act robbery is not robbery or even

extortion sounds more like the answer to a trick question than

an obvious or clear proposition.

But the Majority Opinion says that the error is plain. It does

so because other circuits have uniformly reached that result.

That condition alone, however, has never been sufficient to

justify the plainness of an error. Uniform out-of-circuit

25

Although categorical-approach errors are not plain per se,

the complexity inherent in the categorical approach counsels

that only in rare instances would such an error be plain. This

is not such an exceptional case.

6

precedent must be combined with some other factor – such as

a concession by the government26 or a clearly erroneous

application of statutory law27 – to establish plain error. The

Supreme Court recognizes as much by explaining that “a new

rule of law, set forth by an appellate court, cannot

automatically lead that court to consider all contrary

determinations by trial courts plainly erroneous.”28 And here

the Government does not concede; it vigorously argues that

those circuits erred in several respects – and its position is far

from frivolous. By minimizing the strength of the

Government’s argument, which presents a reasonable

dispute,29 the Majority Opinion deviates from this Circuit’s

precedent30 and makes a finding of plainness based solely on

the uniformity of cases in five other circuits – only one of

which was decided before February 25, 2020, the date the

District Court imposed the sentence in this case.31 Also, by

26

See United States v. Benjamin, 711 F.3d 371, 379 (3d Cir.

2013).

27

See United States v. Cole, 567 F.3d 110, 117 (3d Cir. 2009).

28

Henderson v. United States, 568 U.S. 266, 278 (2013).

29

See Puckett v. United States, 556 U.S. 129, 135 (2009)

(explaining that an error that is “subject to reasonable dispute”

is not plain).

30

See United States v. Harris, 471 F.3d 507, 512 (3d Cir. 2006)

(declining to find an error “plain” because the Supreme Court

had not previously ruled on the issue nor “had this Court in a

precedential opinion”).

31

Compare United States v. Camp, 903 F.3d 594 (6th Cir.

2018), with United States v. Prigan, 8 F.4th 1115 (9th Cir.

2021), United States v. Green, 996 F.3d 176 (4th Cir. 2021),

7

fastening the plainness analysis onto the results of other

circuits, the Majority Opinion diminishes this Circuit’s

independent obligation to say what the law is.32

In debilitating the plain-error rule, the Majority Opinion

affronts the Supreme Court’s guidance to preserve the exacting

nature of the standard.33 Today’s ruling improperly minimizes

Bridges v. United States, 991 F.3d 793, 801 (7th Cir. 2021),

and United States v. Eason, 953 F.3d 1184 (11th Cir. Mar. 24,

2020). The Majority Opinion affords no weight to the later-in-

time resolution of four of those cases because it cites

Henderson for the proposition that plainness is evaluated at the

time of review, not the time of error. But the rule in Henderson

applies only to “an intervening authoritative legal decision,”

such as the intervening Supreme Court decision at issue there.

Henderson, 568 U.S. at 270, 273 (emphasis added).

Henderson did not address the impact of intervening non-

binding decisions, much less the role of those later-in-time

cases in assessing out-of-circuit uniformity. And without those

later decided cases, the Majority Opinion cannot establish out-

of-circuit uniformity.

32

See generally 28 U.S.C. § 41 (setting forth thirteen distinct

circuit courts); Marbury v. Madison, 5 U.S. (1 Cranch) 137,

177 (1803) (“It is emphatically the province and duty of the

judicial department to say what the law is.”).

33

See United States v. Young, 470 U.S. 1, 15 (1985)

(cautioning against “[a]ny unwarranted extension of [the]

exacting definition of plain error” because doing so would

skew the ‘“careful balancing of our need to encourage all trial

participants to seek a fair and accurate trial the first time around

against our insistence that obvious injustice be promptly

8

the consequences for missed objections;34 instead, it favors

performing, for the first time on appeal, a layered and nuanced

analysis under the categorical approach coupled with a survey

of later-in-time, out-of-circuit precedent. That meticulous

undertaking – which sets precedent for the first time in this

Circuit – has none of the hallmarks of correcting a plain error,

so I would affirm the judgment of the District Court.

redressed’” (quoting United States v. Frady, 456 U.S. 152, 163

(1982))).

34

See United States v. Dominguez Benitez, 542 U.S. 74, 82

(2004) (explaining that the plain-error rule seeks “to encourage

timely objections and reduce wasteful reversals by demanding

strenuous exertion to get relief for unpreserved error”); United

States v. Vonn, 535 U.S. 55, 73 (2002) (explaining that the

plain-error rule is grounded in “the value of finality,” and thus

the rule “requires defense counsel to be on his toes”); see also

Rosales-Mireles v. United States, 138 S. Ct. 1897, 1911 (2018)

(Thomas, J., dissenting).

9