United States v. George Stoney

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 21-1784

___________

UNITED STATES OF AMERICA,

v.

GEORGE STONEY, a/k/a/ Butchy,

Appellant

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(District Court No. 1-14-cr-00015-002)

District Judge: Honorable Sylvia H. Rambo

__________

Argued November 9, 2022

(Filed: March 10, 2023)

Before: JORDAN, RESTREPO, and SCIRICA, Circuit Judges

Daryl F. Bloom, Esq.

OFFICE OF UNITED STATES ATTORNEY

Middle District of Pennsylvania

228 Walnut Street, P.O. Box 11754

220 Federal Building and Courthouse

Harrisburg, PA 17108

Stephen R. Cerutti, II, Esq.

OFFICE OF UNITED STATES ATTORNEY

Middle District of Pennsylvania

228 Walnut Street, P.O. Box 11754

220 Federal Building and Courthouse

Harrisburg, PA 17108

Carlo D. Marchioli, Esq. [Argued]

OFFICE OF UNITED STATES ATTORNEY

Middle District of Pennsylvania

228 Walnut Street, P.O. Box 11754

220 Federal Building and Courthouse

Harrisburg, PA 17108

Counsel for Appellee

Frederick W. Ulrich, Esq. [Argued]

OFFICE OF FEDERAL PUBLIC DEFENDER

100 Chestnut Street

Suite 306

Harrisburg, PA 17101

Counsel for Appellant George Stoney

2

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OPINION OF THE COURT

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RESTREPO, Circuit Judge

Armed robbery is a violent crime. Accepting

responsibility by a guilty plea does not diminish its

seriousness. And it certainly does not permit a defendant to

downplay the crime committed. George Stoney admitted to

pointing a loaded firearm at victims during a robbery with two

other masked men. The robbery was successful. We reject his

attempt to minimize the crime he committed to avoid an

additional felony conviction under § 924(c)(1)(A).

I. BACKGROUND

Stoney appeals the District Court’s denial of his second

or successive motion pursuant to 28 U.S.C. § 2255, challenging

his conviction for the Use of a Firearm During a Crime of

Violence in violation of 18 U.S.C. § 924(c)(1)(A). In 2014,

Stoney pleaded guilty and admitted to committing a completed

Hobbs Act robbery in violation of 18 U.S.C. § 1951(a). But he

now argues that we should treat his crime as an attempted

Hobbs Act robbery, which fails to qualify as a predicate crime

of violence under § 924(c)(3)(A) following the recent decision

in United States v. Taylor, 142 S. Ct. 2015, 2021 (2022).

Alternatively, he contends that even if we find he committed a

completed Hobbs Act robbery, his conviction, based on

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Pinkerton 1 liability and aiding and abetting, does not qualify as

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

A. STATUTORY FRAMEWORK

To evaluate Stoney’s appeal, we must look at § 1951

and § 924(c) generally. If a person is convicted of Hobbs Act

robbery, he or she faces up to 20 years in prison. See 18 U.S.C.

§ 1951(a). If the offense also qualifies as a crime of violence

under § 924(c)(3)(A), the person faces an additional felony

conviction and further punishment for using a firearm during

the crime. See 18 U.S.C. § 924(c)(1)(A); see also Taylor, 142

S. Ct. at 2019. Section 924(c) requires the government to prove

that the person committed a qualifying predicate crime of

violence. United States v. Galati, 844 F.3d 152, 155 (3d Cir.

2016). Nevertheless, a defendant need not be separately

charged with or convicted of the predicate crime. Id. The

statute defines a “crime of violence” to be “an offense that is a

felony and has as an element the use, attempted use, or

threatened use of physical force against the person or property

of another.” 18 U.S.C. § 924(c)(3)(A). This clause is known

as the “elements clause.” 2

1

328 U.S. 640 (1946).

2

In 2019, the Supreme Court ruled that § 924(c)(3)(B), also

known as the “residual clause” and previously an alternate

avenue for defining a “crime of violence,” is unconstitutionally

vague. See United States v. Davis, 139 S. Ct. 2319, 2323–24

(2019) (holding that the language of the residual clause was

unconstitutionally vague and violated the Due Process Clause).

Therefore, now only § 924(c)(3)(A), the “elements clause,”

contemplates whether a felony offense qualifies as a crime of

violence.

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Whether or not a crime qualifies as a “crime of

violence” under § 924(c)(3)(A) carries significant

consequences. It can affect whether a person is eligible for

early release. 18 U.S.C. § 3621(e)(2)(B); see also Gardner v.

Grandolsky, 585 F.3d 786, 792 (3d Cir. 2009). It can affect

inmate status and incarceration placement. 18 U.S.C. §

3621(b)(2); see also Woodall v. Fed. Bureau of Prisons, 432

F.3d 235, 239 (3d Cir. 2005). And it can increase a federal

sentence because of the mandatory minimum. See Alleyne v.

United States, 570 U.S. 99, 108 (2013) (holding that the

elements of a § 924(c) conviction must be submitted to a jury

because mandatory minimum sentences increase the penalty

for a crime). At its core, the elements clause is a powerful tool

used to deter and punish the use of firearms during violent

crimes.

The Supreme Court recently held that an attempted

Hobbs Act robbery does not qualify as a crime of violence

under § 924(c)(3)(A). Taylor, 142 S. Ct. at 2021. For that

reason, Stoney urges us to construe his conviction as an

attempted robbery. But the record is clear: Stoney committed

a completed Hobbs Act robbery.

B. FACTUAL BACKGROUND

On December 3, 2013, three armed men in black ski

masks entered a Cracker Barrel restaurant in Harrisburg,

Pennsylvania with one goal: to steal money. To achieve their

goal, the men robbed the victims at gunpoint. Stoney and his

co-defendants stashed over $8,000 in a Cracker Barrel bag, but

police were tipped off when a victim hiding in the bathroom

called 911. The robbers fled, but were ultimately arrested in a

nearby wooded area. Police discovered a nine-millimeter

handgun approximately ten feet away from where Stoney was

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found. Stoney’s gun was loaded with 17 rounds and had one

round in the chamber. The stolen cash and two other guns were

also recovered. When interviewed by the police, Stoney

admitted his involvement and identified his co-defendants.

As a result, a federal grand jury charged Stoney with

Hobbs Act robbery and the Use of a Firearm During a Crime

of Violence. See 18 U.S.C. §§ 2; 1951; 924(c)(1)(A). The §

924(c) firearm charge referenced the Hobbs Act robbery as the

predicate offense, based on two theories of liability: Pinkerton

and aiding and abetting. The indictment did not specify the

charge as a completed Hobbs Act robbery, but Stoney admitted

on record to committing a completed gunpoint robbery. He

now urges us to ignore reality and invent ambiguity where

there is none.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction over Stoney’s

motion to vacate, set aside or correct his sentence pursuant to

28 U.S.C. § 2255. We have appellate jurisdiction under 28

U.S.C. § 2253(a) and (c). We review the District Court’s legal

conclusions with regard to Stoney’s § 2255 motion de novo

and its factual findings for clear error. United States v.

Prophet, 989 F.3d 231, 234 (3d Cir. 2021).

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III. DISCUSSION

We must first discern what Stoney’s predicate crime of

violence is, and then whether that offense qualifies as a crime

of violence under § 924(c)(3)(A). We address each issue in

turn.

A. PREDICATE OFFENSE FOR § 924(C) GUILTY PLEA

Stoney argues that his § 924(c) conviction fails to

identify whether the predicate crime of violence is a completed

or attempted Hobbs Act robbery. According to Stoney, he

pleaded guilty only to the minimum conduct criminalized by

the statute, specifically the now-invalid predicate of attempted

Hobbs Act robbery. We disagree.

The inquiry into the underlying predicate crime of

violence is fact-based. Without knowing what the crime is, we

cannot determine if it qualifies as a crime of violence.

Therefore, we must look not only at the indictment but also at

the “plea agreement and the attendant factual proffer” to

determine the predicate crime of violence for a § 924(c) guilty

plea. See In re Navarro, 931 F.3d 1298, 1302 (11th Cir. 2019)

(noting that Navarro’s “plea agreement and the attendant

factual proffer more broadly establish that his § 924(c) charge

was predicated both on conspiracy to commit Hobbs Act

robbery and drug-trafficking crimes.”).

Several other Circuit courts have addressed this issue. 3

Those courts have also held that the record may establish the

3

See United States v. Cannon, 987 F.3d 924, 949–50 (11th Cir.

2021) (finding the defendant committed a § 924(c) predicate

offense based on the “complete factual record” including “trial

testimony and recordings”); United States v. Crawley, 2 F.4th

257, 267 (4th Cir. 2021) (looking to the statement of facts

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predicate crime for a § 924(c) guilty plea. We join those

Circuits.

The record here is clear: Stoney committed a completed

Hobbs Act robbery. At his change of plea proceeding, he

admitted to using a loaded gun during the holdup. Stoney and

his co-defendants stole over $8,000 from the restaurant. There

is therefore no question that Stoney’s § 924(c) conviction is

predicated on a completed Hobbs Act robbery, which “has as

an element the . . . use of physical force against the person . . .

of another.” § 924 (c)(3)(A). We refuse to treat his conviction

as an attempted robbery.

B. COMPLETED HOBBS ACT ROBBERY

Alternatively, Stoney argues that his conviction, based

on Pinkerton liability and accomplice liability, does not qualify

under § 924(c)(3)(A). We disagree. We need not address

Pinkerton or accomplice liability, because he was not an aider

or abettor, nor was he merely a co-conspirator. Since there is

no question that Stoney personally committed a completed

Hobbs Act robbery, these theories of liability are not relevant.

We therefore join the unanimous Circuit authority in holding

that a completed Hobbs Act robbery qualifies as a crime of

accompanying the plea agreement to determine the predicate

crime); In re Navarro, 931 F.3d 1298, 1302 (11th Cir. 2019)

(looking to the plea agreement and attendant factual proffer,

which established the § 924(c) predicate crime); United States

v. Hunter, 887 F.2d 1001, 1003 (9th Cir. 1989) (“Hunter’s

admission to the court that he possessed 88 grams of cocaine

and had trafficked in the drug, the government’s proffer of

proof to that effect, and Hunter’s guilty plea were sufficient to

establish Hunter’s guilt of a drug trafficking offense as an

element of the offense under section 924(c)(1).”).

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violence under § 924(c)(3)(A), a question left open after

Taylor. 142 S. Ct. at 2020 (“Whatever one might say about

completed Hobbs Act robbery, attempted Hobbs Act robbery

does not satisfy the elements clause.”) (emphasis in original).

To determine whether a particular offense qualifies as a

crime of violence under § 924(c)(3)(A), we must apply the

categorical approach. See Taylor, 142 S. Ct. at 2020. The

categorical approach precludes any inquiry into the underlying

facts or analysis of how a defendant committed the crime.

Instead, courts “‘look only to the statutory definitions’—i.e.,

the elements—of a defendant’s [ ] offense[], and not ‘to the

particular facts underlying [the offense].’” Descamps v.

United States, 570 U.S. 254, 261 (2013) (emphasis in original)

(quoting Taylor v. United States, 495 U.S. 575, 600 (1990)).

Therefore, “[t]he only relevant question is whether the federal

felony at issue always requires the government to prove—

beyond a reasonable doubt, as an element of its case—the use,

attempted use, or threatened use of force.” Taylor, 142 S. Ct.

at 2020. Here, “to win a conviction for a completed robbery

the government must show that the defendant engaged in the

‘unlawful taking or obtaining of personal property from the

person . . . of another, against his will, by means of actual or

threatened force.’” Id. (quoting 18 U.S.C. § 1951(b))

(emphasis in original).

Prior to the Taylor decision, this Court held that a

completed Hobbs Act robbery is a valid § 924(c) predicate.

United States v. Walker, 990 F.3d 316, 326 (3d Cir. 2021),

vacated on other grounds, 142 S. Ct. 2015, 2021 (2022).4 That

4

See also United States v. Monroe, 837 F. App’x 898, 900–01

(3d Cir. 2021); United States v. Rodriguez, 770 F. App’x 18,

23 (3d Cir. 2019); United States v. McKelvey, 773 F. App’x 74,

75 (3d Cir. 2019); United States v. Styles, No. 19-3217, 2022

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finding was also unanimous among our sister Circuits. 5 Taylor

does not change our position.

The Hobbs Act criminalizes a robbery that “obstructs,

delays or affects” interstate commerce, 18 U.S.C. § 1951(a),

by “the unlawful taking or obtaining of personal property from

the person . . . by means of actual or threatened force, or

violence, or fear of injury.” § 1951(b); see also Taylor, 142 S.

Ct. at 2020. The key inquiry in applying the categorical

approach here is whether a completed Hobbs Act robbery

requires proof of “the use, attempted use, or threatened use of

physical force.” § 924(c)(3)(A). It does. This is the crucial

difference between attempted and completed robbery.

Three other Courts of Appeals—the Fourth, Eighth, and

Tenth Circuits—have addressed this issue post-Taylor and

found that a completed Hobbs Act robbery qualifies as a crime

WL 34126 at *3 (3d Cir. Jan. 4, 2022); United States v. White,

678 F. App’x 80, 82 (3d Cir. 2017); United States v. McLean,

702 F. App’x 81, 89 (3d Cir. 2017).

5

See United States v. Torres-Correa, 23 F.4th 129, 133 (1st

Cir. 2022); United States v. Dominguez, 954 F.3d 1251, 1261

(9th Cir. 2020), vacated on other grounds, 142 S. Ct. 2015

(2022), aff’d in part by 48 F.4th 1040 (9th Cir. 2022); United

States v. Mathis, 932 F.3d 242, 266 (4th Cir. 2019); United

States v. Jones, 919 F.3d 1064, 1072 (8th Cir. 2019); United

States v. Melgar-Cabrera, 892 F.3d 1053, 1060–66 (10th Cir.

2018); United States v. Hill, 890 F.3d 51, 60 (2d Cir. 2018);

United States v. Fox, 878 F.3d 574, 579 (7th Cir. 2017); United

States v. Gooch, 850 F.3d 285, 291–92 (6th Cir. 2017); United

States v. Buck, 847 F.3d 267, 274–75 (5th Cir. 2017); In re St.

Fleur, 824 F.3d 1337, 1340–41 (11th Cir. 2016).

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of violence. 6 We agree and hold that a completed Hobbs Act

robbery is categorically a crime of violence under §

924(c)(3)(A).

IV.

Stoney’s efforts to escape punishment fall short. He

cannot avoid the inevitable: using a gun during a violent crime

will earn a defendant extra time. His § 924(c) guilty plea

clearly establishes that his conviction is predicated on a

completed Hobbs Act robbery, which is a crime of violence.

We will affirm.

6

See United States v. Baker, 49 F.4th 1348, 1360 (10th Cir.

2022) (holding that Taylor does not implicate the court’s

previous holding in United States v. Melgar-Cabrera, 892 F.3d

1053, 1060–66 (10th Cir. 2018), and a completed Hobbs Act

robbery qualifies as a crime of violence); United States v.

Moore, No. 22-1899, 2022 WL 4361998, at *1 (8th Cir. Sept.

21, 2022) (holding in an unpublished, per curiam decision that

although “the Supreme Court recently held that attempted

Hobbs Act robbery is not a crime of violence, the plea

agreement established that [defendant] pleaded guilty to

completed Hobbs Act robbery, which is a crime of violence”)

(internal citation omitted); United States v. McRae, No. 21-

4186, 2022 WL 3715084, at *2 (4th Cir. Aug. 29, 2022)

(holding in an unpublished, per curiam decision “that both

Hobbs Act robbery and armed bank robbery constitute crimes

of violence”); United States v. Whitfield, No. 19-4173, 2022

WL 2526670, at *1 (4th Cir. July 7, 2022) (holding in an

unpublished, per curiam decision that “this court has firmly

established that Hobbs Act Robbery is a valid § 924(c)

predicate”).

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