United States v. Dejuan A. Worthen

In the

United States Court of Appeals

For the Seventh Circuit

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No. 21-2950

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DEJUAN ANDRE WORTHEN,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, New Albany Division.

No. 15-cr-6 — Sarah Evans Barker, Judge.

____________________

ARGUED FEBRUARY 8, 2023 — DECIDED MARCH 2, 2023

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Before FLAUM, SCUDDER, and ST. EVE, Circuit Judges.

SCUDDER, Circuit Judge. Dejuan Worthen asks us to recon-

sider whether Hobbs Act robbery—even more specifically,

aiding and abetting a Hobbs Act robbery—is a crime of vio-

lence for purposes of the sentencing enhancement Congress

included in 18 U.S.C. § 924(c)(3)(A). We conclude that it is and

affirm the district court’s judgment.

2 No. 21-2950

I

Worthen, his brother Darryl, and their cousin Darion Har-

ris planned to rob a gun store near North Vernon, Indiana

and, if necessary, shoot the store owner, Scott Maxie, in the

process. During the robbery, Darryl shot and killed Maxie.

Worthen and Harris then loaded a large cache of guns into

Darryl’s car and the trio drove away. The police apprehended

Worthen soon after.

Federal charges followed. Worthen faced charges of

Hobbs Act robbery, see 18 U.S.C. § 1951(a), and discharge of

a firearm resulting in death, see 18 U.S.C. § 924(j). Because

Darryl directed the robbery and shot and killed Maxie, the

government charged Worthen as an aider and abettor of both

crimes under 18 U.S.C. § 2(a). For the § 924(j) charge, the gov-

ernment needed to show the discharge of a firearm in the

course of a “crime of violence.” Congress defined that term

under the so-called force clause of § 924(c) as a felony offense

that “has as an element the use, attempted use, or threatened

use of physical force against the person or property of an-

other.” 18 U.S.C. § 924(c)(3)(A). The indictment alleged that

the Hobbs Act robbery of Maxie’s gun shop was the qualify-

ing crime of violence.

Worthen invoked Federal Rule of Criminal Procedure 12

and moved to dismiss the § 924(j) charge on the ground that

Hobbs Act robbery was not a crime of violence within the

meaning of § 924(c)(3)(A). Nowhere in his motion did he men-

tion accessory liability. Relying on our decision in United

States v. Fox, 878 F.3d 574, 579 (7th Cir. 2017), the district court

concluded that Hobbs Act robbery qualified as a crime of vi-

olence and denied Worthen’s motion. Worthen then pled

No. 21-2950 3

guilty to the § 924(j) charge as an aider and abettor and re-

ceived a sentence of 30 years’ imprisonment. In his plea agree-

ment with the government, Worthen preserved his right to

seek review of the district court’s denial of his motion to dis-

miss but otherwise waived his right to appeal.

On appeal Worthen renews his argument that the princi-

pal offense of Hobbs Act robbery is not a crime of violence.

He also contends—for the first time—that aiding and abetting

a Hobbs Act robbery is not a crime of violence and, separately,

that the force clause of § 924(c) is unconstitutionally vague.

II

A

We begin by observing that the contention Worthen

presses on appeal is not the one he advanced in the district

court. Worthen never mentioned accessory liability in the dis-

trict court. Nor did he say a word about the force clause of

§ 924(c) being unconstitutionally vague. Ordinarily we would

have to decide whether he forfeited the arguments or, given

the terms of his plea agreement, waived them. See United

States v. Flores, 929 F.3d 443, 447 (7th Cir. 2019) (defining

waiver as the intentional relinquishment of a known right and

forfeiture as the inadvertent failure to preserve an argument).

The distinction matters. Forfeited arguments are subject to

plain error review, whereas waived arguments are not re-

viewed at all. See id.; see also Fed. R. Crim. P. 52.

Here, however, we need not resolve the question. During

oral argument, the government conceded that it had “waived

waiver” by not seeking to enforce the broad appellate waiver

in Worthen’s plea agreement. See United States v. Murphy, 406

4 No. 21-2950

F.3d 857, 860 (7th Cir. 2005). We appreciate the government’s

candor. Our review, then, is only for plain error. We reverse

if Worthen makes the fourfold showing of (1) an error (2) that

is plain, (3) affected his substantial rights, and (4) seriously

affected the fairness, integrity, or the public reputation of the

judicial proceedings. See United States v. Olano, 507 U.S. 725,

732–37 (1993).

B

To decide whether Hobbs Act robbery is a “crime of vio-

lence” within the meaning of § 924(c)(3)(A), we apply the cat-

egorical approach. See Taylor v. United States, 495 U.S. 575,

600–02 (1990); see also United States v. Rivera, 847 F.3d 847,

848–49 (7th Cir. 2017). Under that approach, a Hobbs Act rob-

bery qualifies as a crime of violence only if its statutory ele-

ments are the same as or narrower than those in § 924(c). See

Descamps v. United States, 570 U.S. 254, 257 (2013). The proper

inquiry asks whether there is some way to commit a Hobbs

Act robbery without using, attempting to use, or threatening

physical force. If so, then Hobbs Act robbery is not a crime of

violence that could support the § 924(j) charge against

Worthen. That outcome holds true regardless of whether

Worthen’s actual conduct would fit within the parameters of

§ 924(c), as the categorical approach disregards the actual

facts of the defendant’s offense conduct. See id. at 261.

To his credit, Worthen acknowledges our prior holdings

that Hobbs Act robbery is a crime of violence. See United

States v. McHaney, 1 F.4th 489, 491–92 (7th Cir. 2021) (collect-

ing cases). The same goes for aiding a Hobbs Act robbery. See

United States v. Brown, 973 F.3d 667, 697 (7th Cir. 2020). But he

urges us to revisit our analysis of accessory liability in light of

No. 21-2950 5

the Supreme Court’s recent decision in United States v. Taylor,

142 S. Ct. 2015 (2022). He also contends that any defendant

can commit the principal offense of Hobbs Act robbery by us-

ing threats to property that fall short of force.

We see things differently. Hobbs Act robbery criminalizes

an unlawful taking “against [the victim’s] will, by means of

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

mediate or future, to his person or property, or property in his

custody or possession, or the person or property of a relative

or member of his family or of anyone in his company at the

time of the taking or obtaining.” 18 U.S.C. § 1951(b)(1). We

have determined many times that “committing such an act

necessarily requires using or threatening force” against the

person or property of another. McHaney, 1 F.4th at 491 (quot-

ing United States v. Anglin, 846 F.3d 954, 965 (7th Cir. 2017),

vacated on other grounds, 138 S. Ct. 126 (2017)). We follow the

course here and reiterate that the principal offense of Hobbs

Act robbery qualifies as a crime of violence within the mean-

ing of § 924(c)(3)(A).

From there the question becomes whether accessory liabil-

ity changes our analysis. Remember that Worthen was not the

triggerman who shot and killed Scott Maxie during the rob-

bery of the gun store. To the contrary, he aided and abetted

the § 924(j) violation, which occurred during the course of the

Hobbs Act robbery of the guns from the store. These facts ex-

plain why Worthen focuses the challenge to his conviction on

whether aiding and abetting a Hobbs Act robbery qualifies as

a crime of violence under § 924(c)(3)(A).

Section 2 of Title 18 does not create a separate offense—it

instead establishes that someone who aids and abets a federal

6 No. 21-2950

crime has committed the federal crime itself. See 18 U.S.C. § 2

(providing that aiders and abettors are “punishable as a prin-

cipal”). It is “hornbook law” that convicting an aider and abet-

tor first requires showing that the underlying crime (here,

Hobbs Act robbery) “was actually committed.” United States

v. Motley, 940 F.2d 1079, 1081 (7th Cir. 1991) (quoting United

States v. Ruffin, 613 F.2d 408, 412 (2d Cir. 1979)). The govern-

ment must also prove that the aider and abettor took some

“affirmative act” to further the offense, with the intent of fa-

cilitating the commission of the offense. See Rosemond v.

United States, 572 U.S. 65, 71 (2014). Because an aider and abet-

tor does not need to participate in each element of the offense,

a defendant can aid and abet a Hobbs Act robbery without

personally using force—say, for example, by serving as the

getaway driver from a violent robbery. See id. at 72–73. As

Worthen sees it, that means that aiding and abetting a Hobbs

Act robbery does not categorically match the force clause of

§ 924(c)—and therefore that Hobbs Act robbery (because it in-

corporates accessory liability) itself is not a predicate offense.

The Supreme Court rejected a similar argument in Gonza-

les v. Duenas-Alvarez, 549 U.S. 183 (2007). The issue in Duenas-

Alvarez was whether a particular conviction for theft under

California state law qualified under the categorical approach

as a “theft offense” subjecting an immigrant to removal under

8 U.S.C. § 1227(a)(2)(A). The Ninth Circuit had held that the

California statute did not qualify because it expressly in-

cluded accessories and accomplices to theft. See Duenas-Alva-

rez, 549 U.S. at 187–88. A defendant, the Ninth Circuit rea-

soned, could aid a theft under the California law “without

taking or controlling property,” a necessary element of the

federal definition of “theft offense.” Id. at 188. The Supreme

No. 21-2950 7

Court reversed, concluding that criminal law “uniformly”

treats aiders and abettors and principals as alike. Id. at 190.

This meant that the federal definition of “theft offense” within

the pertinent immigration statute included aiders and abet-

tors along with principal offenders. See id. at 189–90.

The same reasoning applies here. “[E]very jurisdiction—

all States and the Federal Government—has ‘expressly abro-

gated the distinction’ among principals” and most aiders and

abettors. Id. (quoting 2 Wayne R. LaFave, Substantive Criminal

Law § 13.1(e) (2d ed. 2003)). Consistent with that principle,

aiding and abetting under § 2 is “not a separate federal crime”

from the underlying offense, United States v. Sosa, 777 F.3d

1279, 1292 (11th Cir. 2015), but is instead an alternative theory

of liability for the commission of the principal offense. Put

more directly, “an aider and abettor of a Hobbs Act robbery

necessarily commits all the elements of a principal Hobbs Act

robbery.” In re Colon, 826 F.3d 1301, 1305 (11th Cir. 2016). And

because the principal offense of Hobbs Act robbery satisfies

the force clause of § 924(c), aiding and abetting a Hobbs Act

robbery qualifies as a crime of violence too. See id.

We are far from alone in reaching this conclusion. Indeed,

by our measure, every other circuit to have considered the is-

sue has agreed that aiding and abetting a crime of violence is

a crime of violence. See, e.g., United States v. García-Ortiz, 904

F.3d 102, 109 (1st Cir. 2018); DeMartino v. United States, No. 20-

1758, 2022 WL 2445435, at *3 (2d Cir. July 6, 2022); United

States v. McKelvey, 773 F. App’x 74, 75 (3d Cir. 2019); United

States v. Ali, 991 F.3d 561, 573–74 (4th Cir. 2021); United States

v. Richardson, 948 F.3d 733, 741–42 (6th Cir. 2020); Young v.

United States, 22 F.4th 1115, 1122–23 (9th Cir. 2022); United

States v. Deiter, 890 F.3d 1203, 1214–16 (10th Cir. 2018);

8 No. 21-2950

Alvarado-Linares v. United States, 44 F.4th 1334, 1348 (11th Cir.

2022) (citing Colon, 826 F.3d at 1305).

C

Worthen urges a different conclusion by pointing us away

from Duenas-Alvarez and instead to United States v. Taylor, 142

S. Ct. 2015 (2022). No doubt Taylor is a more recent decision

than Duenas-Alvarez. But we see no tension between the two

decisions.

Taylor held that attempted Hobbs Act robbery is not a

crime of violence. See id. at 2021. The Court reasoned that the

crime of attempt requires only that a defendant who intends

to commit a Hobbs Act robbery take a “‘substantial step’ to-

ward that end.” Id. at 2020 (citation omitted). And a “substan-

tial step” does not necessarily require using, attempting to

use, or threatening force. See id. Worthen latches on to this

conclusion and reads Taylor as overruling Duenas-Alvarez and

thereby limiting crimes of violence to those requiring proof

that the defendant himself used force.

But Taylor left Duenas-Alvarez undisturbed. See id. at 2024–

25 (distinguishing Duenas-Alvarez without overruling it). Tay-

lor hinged on the fact that attempt is a separate crime from the

underlying offense, with the distinct element of a “substantial

step.” See id. at 2020; see also Ali, 991 F.3d at 574 & n.5 (un-

derscoring that the crime of attempt adds a new element that

allows the government to secure a conviction without show-

ing any violence). A defendant could take that substantial

step—completing the crime of attempt—without also com-

mitting all the elements of Hobbs Act robbery. Not so with

accessory liability. If a defendant aids a completed Hobbs Act

robbery, the law deems him to have committed every element

No. 21-2950 9

of Hobbs Act robbery—including the element of using or

threatening force. That is what it means to say that the law

does not distinguish between primary violators and aiders

and abettors. See Duenas-Alvarez, 549 U.S. at 189–90 (citing 2

LaFave, § 13.1(e)).

Worthen’s reliance on Taylor runs into another problem.

Assume that Worthen has the law right: aiding and abetting

is not a crime of violence. If he is correct, any offense charged

and committed under an aiding and abetting theory could not

qualify as a crime of violence. That poses a problem because

every jurisdiction, as we have explained, has eliminated the

distinction between aiding and abetting liability and principal

liability. See id. Under Worthen’s approach, then, no offense

would qualify as a crime of violence. A defendant could al-

ways argue that the offense includes aiding and abetting lia-

bility but that aiding and abetting liability does not qualify as

a crime of violence under § 924(c) because the defendant can

aid and abet without engaging in any use of force. There is no

indication that Taylor intended the categorical approach to ap-

ply to aiding and abetting liability in that way. See United

States v. Cammorto, 859 F.3d 311, 316 (4th Cir. 2017) (rejecting

a similar challenge as “untenable” because it would preclude

any categorical match).

Worthen tells us that to the extent there is any ambiguity

in how Taylor applies, we should read aiding and abetting li-

ability in harmony with the crime of attempt under the canon

of in pari materia. That canon provides that “different acts

which address the same subject matter, which is to say are in

pari materia, should be read together such that the ambiguities

in one may be resolved by reference to the other.” Firstar Bank,

N.A. v. Faul, 253 F.3d 982, 990 (7th Cir. 2001).

10 No. 21-2950

The canon has no application here. Worthen cannot iden-

tify any ambiguities in the crime of aiding and abetting that

could be resolved by reference to the crime of attempt. To the

contrary, our analysis of accessory liability clearly follows

from the text of 18 U.S.C. § 2 itself, as well as the universal

principle, emphasized by the Supreme Court in Duenas-Alva-

rez, that criminal law treats principals and aiders and abettors

alike. See 549 U.S. at 190.

D

One last issue warrants our attention. Worthen sees the

force clause of § 924(c) as unconstitutionally vague because

“it fails to give ordinary people fair notice of the conduct it

punishes,” and is “so standardless that it invites arbitrary en-

forcement.” See Johnson v. United States, 576 U.S. 591, 595

(2015). In particular, he focuses on the fact that § 924(c) leaves

the term “physical force” undefined.

Worthen has not identified any plain error. There is no

hint in our case law that the term “physical force” presents a

constitutional problem. Nor are we aware of anything from

the Supreme Court or any other circuit suggesting that the

force clause is unconstitutionally vague. What Worthen ob-

jects to is run-of-the-mill statutory interpretation, which “lies

at the heart of the judicial function.” Bob Evans Farms, Inc. v.

NLRB, 163 F.3d 1012, 1017 (7th Cir. 1998). Indeed, the Su-

preme Court has said that the “clear” meaning of physical

force is “violent force—that is, force capable of causing physi-

cal pain or injury to another person.” Johnson v. United States,

559 U.S. 133, 140 (2010) (analyzing the term in 18 U.S.C.

§ 924(e)(2)(B)(i)). We have applied that standard many times

over without difficulty. See, e.g., United States v. Duncan, 833

No. 21-2950 11

F.3d 751, 754 (7th Cir. 2016) (“While mere touching is not

enough to show physical force, the threshold is not a high one;

a slap in the face will suffice.”).

For these reasons, we AFFIRM.