Petition for Writ of Certiorari — United States, Petitioner v. Justin Eugene Taylor
Supreme Court briefApr 14, 2020
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No.
In the Supreme Court of the United States
UNITED STATES OF AMERICA, PETITIONER
v.
JUSTIN EUGENE TAYLOR
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
EDWIN S. KNEEDLER
Deputy Solicitor General
Counsel of Record
NICHOLAS L. MCQUAID
Acting Assistant Attorney
General
ERIC J. FEIGIN
Deputy Solicitor General
REBECCA TAIBLESON
Assistant to the Solicitor
General
JOHN M. PELLETTIERI
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
Whether 18 U.S.C. 924(c)(3)(A)’s definition of “crime
of violence” excludes attempted Hobbs Act robbery, in
violation of 18 U.S.C. 1951(a).
(I)
RELATED PROCEEDINGS
United States District Court (E.D. Va.):
United States v. Taylor, No. 08-cr-326 (May 14, 2009)
Taylor v. United States, No. 16-cv-508 (Aug. 26, 2019)
United States Court of Appeals (4th Cir.):
United States v. Taylor, No. 19-7616 (Oct. 14, 2020)
(II)
TABLE OF CONTENTS
Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 1
Statutory provisions involved ...................................................... 2
Statement ...................................................................................... 3
Reasons for granting the petition:
A. The court of appeals’ decision is wrong ........................ 10
B. The question presented warrants this Court’s
review ............................................................................... 19
Conclusion ................................................................................... 24
Appendix A — Court of appeals opinion (Oct. 14, 2020) ....... 1a
Appendix B — District court memorandum opinion
(Aug. 26, 2019) ........................................... 13a
Appendix C — Court of appeals order (Dec. 11, 2020) ....... 24a
Appendix D — Statutory provisions ..................................... 25a
TABLE OF AUTHORITIES
Cases:
Azar v. Allina Health Servs., 139 S. Ct. 1804 (2019) ......... 15
Barriera-Vera v. United States, 140 S. Ct. 263 (2019) ...... 22
Beavers v. United States, 139 S. Ct. 56 (2018) .................... 22
Berry v. United States, 138 S. Ct. 2665 (2018) ................... 22
Braxton v. United States, 500 U.S. 344 (1991) ................... 11
Burke v. United States, No. 19-5312 (Nov. 4, 2019) ........... 22
Chance v. United States, 138 S. Ct. 2642 (2018) ................. 22
Chaney v. United States, 917 F.3d 895 (6th Cir.),
cert. denied, 140 S. Ct. 265 (2019) ..................................... 20
Collier v. United States, 989 F.3d 212 (2d Cir. 2021) ......... 20
Corker v. United States, 139 S. Ct. 196 (2018) .................... 22
Dole v. United Steelworkers of Am.,
494 U.S. 26 (1990) ............................................................... 15
Elonis v. United States, 575 U.S. 723 (2015) ................ 13, 14
(III)
IV
Cases—Continued:
Page
Encino Motorcars, LLC v. Navarro,
138 S. Ct. 1134 (2018) ......................................................... 15
Galvan v. United States, 138 S. Ct. 691 (2018) ................... 23
Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) ............. 18
Gray v. United States, 140 S. Ct. 63 (2019)......................... 22
Griffith v. United States, 138 S. Ct. 1165 (2018) ................ 23
Hana Fin., Inc. v. Hana Bank, 574 U.S. 418 (2015).......... 14
Hill v. United States, 877 F.3d 717 (7th Cir. 2017),
cert. denied, 139 S. Ct. 352 (2018) ..................................... 11
James v. United States, 138 S. Ct. 1280 (2018) .................. 23
Johnson v. United States, 576 U.S. 591 (2015) ..................... 7
Ladner v. United States, 358 U.S. 169 (1958) ..................... 17
Myrthil v. United States, 139 S. Ct. 1164 (2019) ................ 22
Ovalles v. United States:
905 F.3d 1300 (11th Cir. 2018), cert. denied,
139 S. Ct. 2716 (2019) ................................................ 20
139 S. Ct. 2716 (2019) ...................................................... 22
Ragland v. United States, 138 S. Ct. 1987 (2018)............... 23
Robbio v. United States, 138 S. Ct. 1583 (2018) ................. 23
Sampson v. United States, 138 S. Ct. 1583 (2018) ............. 23
St. Hubert v. United States, 139 S. Ct. 246 (2018) ............. 22
Stokeling v. United States, 139 S. Ct. 544
(2019) .................................................................. 11, 15, 16, 18
Swift & Co. v. United States, 196 U.S. 375 (1905) .............. 12
Taylor v. United States, 495 U.S. 575 (1990) ................ 16, 17
United States v. Armour, 840 F.3d 904
(7th Cir. 2016) ...................................................................... 20
United States v. Davis, 139 S. Ct. 2319 (2019) ..................... 7
United States v. Dominguez, 954 F.3d 1251
(9th Cir. 2020), petition for cert. pending,
No. 20-1000 (filed Jan. 21, 2021) .............................. 8, 10, 19
United States v. Dozier, 848 F.3d 180 (4th Cir. 2017) ....... 12
V
Cases—Continued:
Page
United States v. Engle, 676 F.3d 405 (4th Cir.),
cert. denied, 568 U.S. 850 (2012) ....................................... 12
United States v. Evans, 924 F.3d 21 (2d Cir.),
cert. denied, 140 S. Ct. 505 (2019) ..................................... 17
United States v. Hill, 971 F.2d 1461 (10th Cir. 1992) ........ 21
United States v. Ingram, 947 F.3d 1021 (7th Cir.),
cert. denied, 141 S. Ct. 323 (2020) ........................... 8, 10, 19
United States v. Knife, 592 F.2d 472 (8th Cir. 1979,
cert. denied, 526 U.S. 1137 (1999) ..................................... 17
United States v. Martin, 163 F.3d 1212 (10th Cir.
1998), cert. denied, 526 U.S. 1137 (1999) .......................... 15
United States v. Mathis, 932 F.3d 242 (4th Cir.),
cert. denied, 140 S. Ct. 639, and 140 S. Ct. 640
(2019) ................................................................................ 8, 10
United States v. Melgar-Cabrera, 892 F.3d 1053
(10th Cir.), cert. denied, 139 S. Ct. 494 (2018) ................. 16
United States v. Resendiz-Ponce,
549 U.S. 102 (2007)........................................................ 11, 12
United States v. Rodriguez-Moreno,
526 U.S. 275 (1999).............................................................. 21
United States v. Simms, 914 F.3d 229 (4th Cir.),
cert. denied, 140 S. Ct. 304 (2019) ................................... 7, 8
United States v. Smith, 957 F.3d 590 (5th Cir.),
cert. denied, 141 S. Ct. 828 (2020) ..................................... 19
United States v. Spring, 305 F.3d 276 (4th Cir. 2002) ....... 14
United States v. St. Hubert, 909 F.3d 335 (11th Cir.
2018), cert. denied, 139 S .Ct. 1394 (2019) .............. 8, 10, 19
United States v. Thrower, 914 F.3d 770 (2d Cir.),
cert. denied, 140 S. Ct. 305 (2019) ..................................... 20
United States v. Walker, 990 F.3d 316
(3d Cir. 2021) ..................................................... 10, 17, 19, 20
United States v. Winston Sylvester Oliver, II,
No. 19-4854 (Feb. 5, 2021) .................................................. 22
VI
Cases—Continued:
Page
Virginia v. Black, 538 U.S. 343 (2003) ................................ 13
Voisine v. United States, 136 S. Ct. 2272 (2016) ................ 12
Wheeler v. United States, 138 S. Ct. 640 (2018) ................. 23
Statutes:
Armed Career Criminal Act of 1984, 18 U.S.C.
924(e) .............................................................................. 11, 15
18 U.S.C. 924(e)(2)(B)(i) ................................................. 16
18 U.S.C. 924(e)(2)(B)(ii) .................................................. 7
Career Criminals Amendment Act of 1986,
Pub. L. No. 99-570, Tit. I, Subtit. I, § 1402,
100 Stat. 3207-39 ................................................................. 16
Hobbs Act:
18 U.S.C. 1951 .......................................................... 3, 5, 21
18 U.S.C. 1951(a) ................................................. 3, 5, 9, 11
18 U.S.C. 1951(b)(1) .................................................. 10, 18
18 U.S.C. 113(d) (1982) .......................................................... 17
18 U.S.C. 113(e) (1982) .......................................................... 17
18 U.S.C. 924(c) ............................................................. passim
18 U.S.C. 924(c)(1)(A) .......................................................... 2, 6
18 U.S.C. 924(c)(3) ............................................................... 8, 6
18 U.S.C. 924(c)(3)(A) ................................................... passim
18 U.S.C. 924(c)(3)(B) ...................................................... 6, 7, 8
18 U.S.C. App. 1202(c)(8) (Supp. II 1984) ........................... 16
18 U.S.C. 2111 ........................................................................ 21
18 U.S.C. 2113 ........................................................................ 21
18 U.S.C. 2113(a) ........................................................... 19, 25a
18 U.S.C. 2118 ........................................................................ 21
18 U.S.C. 2119 .......................................................... 10, 21, 26a
21 U.S.C. 846 ............................................................................ 5
VII
Statutes—Continued:
Page
28 U.S.C. 2255 .................................................................. 4, 6, 7
28 U.S.C. 2255(h) ..................................................................... 7
Miscellaneous:
Model Penal Code:
§ 5.01(2) ............................................................................ 11
§ 222.1 (1980) .................................................................... 16
S. Rep. No. 225, 98th Cong., 1st Sess. (1983)...................... 17
Bureau of Justice Statistics, U.S. Dep’t of Justice,
Criminal Victimizing 2018, https://www.bjs.gov/
content/pub/pdf/cv18.pdf (lasted visited Apr. 12,
2021) ..................................................................................... 21
In the Supreme Court of the United States
No.
UNITED STATES OF AMERICA, PETITIONER
v.
JUSTIN EUGENE TAYLOR
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
The Deputy Solicitor General, on behalf of the United
States, respectfully petitions for a writ of certiorari to
review the judgment of the United States Court of Appeals for the Fourth Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App., infra, 1a12a) is reported at 979 F.3d 203. The order of the court
of appeals denying rehearing (App., infra, 24a) is not
published in the Federal Reporter. The order of the
district court (App., infra, 13a-23a) is not published in
the Federal Supplement but is available at 2019 WL
4018340.
JURISDICTION
The judgment of the court of appeals was entered on
October 14, 2020. A petition for rehearing was denied
on December 11, 2020 (App., infra, 24a). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
(1)
2
STATUTORY PROVISIONS INVOLVED
18 U.S.C. 924 provides in pertinent part:
* * * * *
(c)(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who,
during and in relation to any crime of violence or
drug trafficking crime (including a crime of violence
or drug trafficking crime that provides for an enhanced punishment if committed by the use of a
deadly or dangerous weapon or device) for which the
person may be prosecuted in a court of the United
States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in
addition to the punishment provided for such crime
of violence or drug trafficking crime—
(i)
be sentenced to a term of imprisonment of
not less than 5 years;
(ii) if the firearm is brandished, be sentenced to
a term of imprisonment of not less than 7
years; and
(iii) if the firearm is discharged, be sentenced to
a term of imprisonment of not less than 10
years.
* * * * *
(3) For purposes of this subsection the term “crime
of violence” means an offense that is a felony
and—
(A) has as an element the use, attempted use, or
threatened use of physical force against the
person or property of another, or
(B) that by its nature, involves a substantial risk
that physical force against the person or
3
property of another may be used in the
course of committing the offense.
18 U.S.C. 1951 provides in pertinent part:
(a) Whoever in any way or degree obstructs, delays,
or affects commerce or the movement of any article or
commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens
physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of
this section shall be fined under this title or imprisoned
not more than twenty years, or both.
(b) As used in this section—
(1) The term “robbery” means the unlawful taking
or obtaining of personal property from the person or in
the presence of another, against his will, by means of
actual or threatened force, or violence, or fear of injury,
immediate 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.
* * * * *
Other pertinent statutory provisions are reproduced
in the appendix to this brief. See App., infra, 25a-26a.
STATEMENT
Following a guilty plea in the United States District
Court for the Eastern District of Virginia, respondent
was convicted of conspiring to commit Hobbs Act robbery, in violation of 18 U.S.C. 1951(a), and using and
carrying a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. 924(c). C.A. App. 52.
He was sentenced to 360 months of imprisonment, to be
followed by three years of supervised release. Id. at 54-
4
55. The court of appeals dismissed respondent’s direct
appeal, No. 09-4468 (Jan. 7, 2011), and this Court denied
certiorari, 564 U.S. 1029. The district court denied a
motion by respondent for collateral relief under 28
U.S.C. 2255. No. 08-cr-326 (July 7, 2015). The court of
appeals later authorized respondent to file a second or
successive Section 2255 motion. C.A. App. 59-60. The
district court denied that motion, but the court of appeals reversed and remanded with instructions to vacate respondent’s Section 924(c) conviction and resentence him accordingly. App., infra, 1a-12a.
1. In the early 2000s, respondent was a marijuana
dealer in the Richmond, Virginia area who sold wholesale quantities of marijuana to purchasers for redistribution. C.A. App. 48. He financed his drug-trafficking
business in part by stealing money from some would-be
marijuana buyers. Ibid.
In August 2003, respondent and an accomplice
hatched a plan to steal marijuana-purchase money from
would-be customer Martin Silvester. C.A. App. 49; see,
e.g., App., infra, 15a-17a & n.2 (misspelling name as
“Sylvester”). Respondent arranged a meeting between
the accomplice and Silvester for the ostensible purpose
of completing a marijuana sale, but respondent and his
accomplice instead planned for the accomplice—armed
with a nine-millimeter semiautomatic pistol—to take
the purchase money by force and then flee with respondent in respondent’s car. Id. at 49-50.
The accomplice and Silvester met at the appointed
location while respondent waited nearby with his car.
C.A. App. 50. As planned, the accomplice displayed the
pistol and demanded money from Silvester. Ibid. When
Silvester resisted, the accomplice’s gun discharged, and
Silvester was shot. Ibid. The accomplice fled the scene
5
with respondent in respondent’s car. Ibid. Silvester
died of the gunshot wound the next day. Ibid.; see 979
F.3d at 205.
2. A grand jury returned a seven-count indictment
charging respondent with conspiring to distribute and
possess with the intent to distribute marijuana, in violation of 21 U.S.C. 846 (Count 1); attempting to distribute marijuana, in violation of 21 U.S.C. 846 (Count 2);
possessing a firearm in furtherance of a drug trafficking
crime (namely, the drug conspiracy charged in Count 1),
in violation of 18 U.S.C. 924(c) (Count 3); using and carrying a firearm during and in relation to a drug trafficking crime (namely, the attempted distribution charged
in Count 2), in violation of 18 U.S.C. 924(c) (Count 4);
conspiring to commit Hobbs Act robbery, in violation of
18 U.S.C. 1951(a) (Count 5); attempting to commit
Hobbs Act robbery, in violation of 18 U.S.C. 1951 and 2
(Count 6); and using and carrying a firearm during and
relation to a crime of violence (namely, the conspiracy
to commit Hobbs Act robbery and the attempted Hobbs
Act robbery charged in Counts 5 and 6), in violation of
18 U.S.C. 924(c) (Count 7). C.A. App. 11-14.
Respondent pleaded guilty, pursuant to a plea agreement, to the Hobbs Act robbery conspiracy charged in
Count 5 and the Section 924(c) offense charged in Count
7. C.A. App. 32-33. As a condition of his plea agreement, respondent waived his right to challenge his convictions on appeal and additionally waived his right to
challenge any sentence within the applicable statutory
range. Id. at 35. The government, for its part, agreed
to dismiss the remaining counts of the indictment. Id.
at 38. The district court accepted the plea agreement
and sentenced respondent to 360 months of imprison-
6
ment, to be followed by three years of supervised release. Id. at 54-55. The sentence consisted of 240
months of imprisonment for the Hobbs Act conspiracy
conviction and a consecutive 120 months of imprisonment for the Section 924(c) conviction. Ibid.
Respondent appealed, contending that the district
court had erred in calculating his Sentencing Guidelines
range, but the court of appeals dismissed the appeal as
barred by respondent’s appeal waiver in his plea agreement. No. 09-4468 C.A. Doc. 55-1 (Jan. 7, 2011). This
Court denied certiorari. 564 U.S. 1029. The district
court subsequently denied a motion by respondent under 28 U.S.C. 2255 to vacate, set aside, or correct his
sentence. No. 08-cr-326 D. Ct. Doc. 70 (July 7, 2015).
3. Section 924(c) makes it a crime to “use[] or
carr[y]” a firearm “during and in relation to,” or to “possess[]” a firearm “in furtherance of,” any federal “crime
of violence or drug trafficking crime.” 18 U.S.C.
924(c)(1)(A). The statute contains its own definition of
the term “crime of violence,” which has two subparagraphs, (A) and (B), that provide alternative and independent definitions. Section 924(c)(3)(A)—which courts
often refer to as containing the “elements” clause—
specifies that the term “crime of violence” includes any
“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). Section 924(c)(3)(B)—which courts often
refer to as containing the “residual” clause—specifies
that the term “crime of violence” also includes any “offense that is a felony and * * * that by its nature, involves a substantial risk that physical force against the
person or property of another may be used in the course
of committing the offense.” 18 U.S.C. 924(c)(3)(B).
7
In 2016, respondent sought authorization from the
court of appeals to file a second or successive Section
2255 motion seeking vacatur of his Section 924(c) conviction. See C.A. App. 59; 28 U.S.C. 2255(h) (providing
that a second or successive Section 2255 motion must be
certified by the court of appeals to satisfy one of two
specific statutory prerequisites in order to be filed in
district court). Respondent sought to raise a claim that
his Section 924(c) conviction was invalid because the
charged predicate offenses—conspiracy to commit
Hobbs Act robbery and attempted Hobbs Act robbery
—did not qualify as “crime[s] of violence” in light of this
Court’s decision in Johnson v. United States, 576 U.S.
591 (2015). See No. 16-9177 C.A. Doc. 2-1 (June 13,
2016). In Johnson, the Court invalidated on vagueness
grounds the residual clause in the sentence-enhancement
provisions of the Armed Career Criminal Act of 1984
(ACCA), 18 U.S.C. 924(e)(2)(B)(ii), which is worded similarly to Section 924(c)(3)(B). See 576 U.S. at 604-606.
The court of appeals authorized respondent to file
the successive Section 2255 motion. C.A. App. 59-60.
While respondent’s motion was pending in the district
court, the Fourth Circuit held that Section 924(c)(3)(B)
was unconstitutionally vague and that conspiracy to
commit Hobbs Act robbery did not meet the alternative
definition of “crime of violence” in Section 924(c)(3)(A).
See United States v. Simms, 914 F.3d 229, 233-234, 236237 (en banc), cert. denied, 140 S. Ct. 304 (2019).
Shortly after the Fourth Circuit’s decision, this Court
itself invalidated the definition of “crime of violence” in
Section 924(c)(3)(B) on vagueness grounds in United
States v. Davis, 139 S. Ct. 2319, 2324 (2019).
The district court subsequently denied respondent’s
successive Section 2255 motion. App., infra, 13a-23a.
8
The court acknowledged that conspiracy to commit
Hobbs Act robbery no longer qualified as a “crime of
violence” under Section 924(c) after the invalidation of
Section 924(c)(3)(B) and the Fourth Circuit’s holding in
United States v. Simms, supra, that conspiracy to commit Hobbs Act robbery does not constitute a “crime of
violence” under Section 924(c)(3)(A). Id. at 21a (citing
Simms, 914 F.3d 229). The court explained, however,
that attempted Hobbs Act robbery remained a “crime
of violence” under Section 924(c)(3)(A), because it “has
as an element the use, attempted use, or threatened use
of physical force against the person or property of another.” Id. at 20a (quoting 18 U.S.C. 924(c)(3)). The
court therefore determined that respondent’s Section
924(c) conviction remained valid. Id. at 22a.
4. The court of appeals reversed, holding that even
the offense of attempted Hobbs Act robbery does not
qualify as a “crime of violence” under Section
924(c)(3)(A). App., infra, 2a & n.1. The court acknowledged that its decision conflicted with decisions from
other courts of appeals. Id. at 8a-9a (citing United
States v. Dominguez, 954 F.3d 1251, 1255 (9th Cir.
2020), petition for cert. pending, No. 20-1000 (filed Jan.
21, 2021), United States v. Ingram, 947 F.3d 1021, 1026
(7th Cir.), cert. denied, 141 S. Ct. 323 (2020), and United
States v. St. Hubert, 909 F.3d 335, 351-353 (11th Cir.
2018), cert. denied, 139 S. Ct. 1394 (2019)).
The court of appeals recognized that completed
Hobbs Act robbery “ ‘categorically’ qualifies as a ‘crime
of violence’ under § 924(c)(3)(A)” because it “involves,”
at the least, “ ‘the threat to use [physical] force.’ ” App.,
infra, 7a (quoting United States v. Mathis, 932 F.3d
242, 266 (4th Cir.), cert. denied, 140 S. Ct. 639, and 140
S. Ct. 640 (2019) (brackets in original)). But the court
9
took the view that attempted Hobbs Act robbery might
not “require the use, attempted use, or threatened use
of physical force.” 18 U.S.C. 924(c)(3)(A); see App., infra, 8a. The court identified the elements of attempted
Hobbs Act robbery as “(1) the defendant had the culpable intent to commit Hobbs Act robbery; and (2) the defendant took a substantial step toward the completion
of Hobbs Act robbery that strongly corroborates the intent to commit the offense.” App., infra, 6a. According
to the court, the crime might encompass “a nonviolent
substantial step toward threatening to use physical
force” that would constitute merely an “attempt[] to
threaten to use physical force,” which the court deemed
to be beyond the scope of Section 924(c)(3)(A). Id. at 8a.
And the court indicated that it might also exclude attempted bank robbery and attempted carjacking as
Section 924(c) predicates. Id. at 9a-10a.
The court of appeals vacated respondent’s Section
924(c) conviction and remanded his case for resentencing. App., infra, 12a. It subsequently denied the government’s petition for rehearing en banc. See id. at 24a.
REASONS FOR GRANTING THE PETITION
The court of appeals erred in excising attempted
Hobbs Act robbery, in violation of 18 U.S.C. 1951(a),
from the “crime of violence” definition in 18 U.S.C.
924(c)(3)(A). Congress did not implausibly fail to include federal attempted robbery offenses in that definition. To the contrary, the definition was designed, and
has consistently been well understood, to include attempted robbery crimes. In holding otherwise, the
court of appeals acknowledged that it was deviating
from the preexisting circuit consensus, and the decision
10
below creates an unambiguous circuit conflict on an issue that directly affects many federal prosecutions.
This Court should grant certiorari and reverse.
A. The Court Of Appeals’ Decision Is Wrong
As every court of appeals to address the question until now has recognized, attempted Hobbs Act robbery
“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); see United
States v. Walker, 990 F.3d 316, 329 (3d Cir. 2021);
United States v. Dominguez, 954 F.3d 1251, 1255 (9th
Cir. 2020), petition for cert. pending, No. 20-1000 (filed
Jan. 21, 2021); United States v. Ingram, 947 F.3d 1021,
1026 (7th Cir.), cert. denied, 141 S. Ct. 323 (2020);
United States v. St. Hubert, 909 F.3d 335, 351-353 (11th
Cir. 2018), cert. denied, 139 S. Ct. 1394 (2019). The
Fourth Circuit’s contrary conclusion cannot be squared
with the text or history of that statutory definition,
which make plain that robbery offenses lie at the very
core of the elements clause.
1. The decision below correctly recognized, and reaffirmed, that completed Hobbs Act robbery “ ‘categorically’ qualifies as a ‘crime of violence’ under
§ 924(c)(3)(A).” App., infra, 7a (quoting United States
v. Mathis, 932 F.3d 242, 266 (4th Cir.), cert. denied, 140
S. Ct. 639, and 140 S. Ct. 640 (2019)). That is because
any Hobbs Act robbery necessarily includes either the
use or threatened use of force. See id. at 7a-8a. The
Hobbs Act’s definition of “robbery”—“the unlawful taking or obtaining of personal property from the person
or in the presence of another, against his will, by means
of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property” or
to certain other persons or property, 18 U.S.C.
11
1951(b)(1)—tracks precisely the “use” and “threatened
use” components of Section 924(c)(3)(A). More generally, the definition of a “crime of violence” in Section
924(c) and parallel definitions in statutes like the
ACCA, 18 U.S.C. 924(e), were specifically drafted to
capture robbery, the “quintessential” predicate crime
of violence. Stokeling v. United States, 139 S. Ct. 544,
551 (2019).
No sound construction of the full elements clause of
Section 924(c)(3)(A)—which expressly provides that offenses involving the “attempted use of force” also qualify as “crime[s] of violence,” 18 U.S.C. 924(c)(3)(A)—
would exclude attempted Hobbs Act robberies (let alone
all federal attempted robberies, cf. Pet. App. 9a-10a)
from its scope. Instead, the inclusion of “attempted use,
or threatened use,” in the elements clause makes clear
Congress’s determination that “an element of attempted force operates the same as an element of completed force” for the purposes of identifying “crimes of
violence.” Hill v. United States, 877 F.3d 717, 719 (7th
Cir. 2017), cert. denied, 139 S. Ct. 352 (2018). The
Hobbs Act similarly treats completed robbery and “attempt[ed]” robbery in the same manner, prescribing
the same penalties for both. 18 U.S.C. 1951(a).
To be convicted of attempted Hobbs Act robbery, a
defendant must (1) have the intent to commit each element of the completed crime, and (2) take a “substantial
step” toward the crime’s completion. See United States
v. Resendiz-Ponce, 549 U.S. 102, 106-107 (2007); Braxton v. United States, 500 U.S. 344, 349 (1991). A “substantial step” sufficient to support attempt liability
must “strongly corroborat[e] * * * the actor’s criminal
purpose.” Model Penal Code § 5.01(2); see ResendizPonce, 549 U.S. at 107 (“As was true at common law,”
12
the requisite intent must be “accompanied by significant conduct.”); see also, e.g., Swift & Co. v. United
States, 196 U.S. 375, 402 (1905) (“The distinction between mere preparation and attempt is well known in
the criminal law.”). The Fourth Circuit itself has accordingly defined a “substantial step” as “a direct act in
a course of conduct planned to culminate in commission
of a crime that is strongly corroborative of the defendant’s criminal purpose.” United States v. Dozier, 848
F.3d 180, 186 (2017) (quoting United States v. Engle,
676 F.3d 405, 423 (4th Cir.), cert. denied, 568 U.S. 850
(2012)).
A defendant who intends to take the property of another, against the victim’s will, through actual or threatened violence, and then takes a substantial step toward
completing that crime, necessarily “attempt[s] to commit every element of ” Hobbs Act robbery. Dominguez,
954 F.3d at 1261. And when a defendant commits “a direct act in a course of conduct planned to culminate in
[the] commission” of a completed Hobbs Act robbery,
and that act is unambiguous enough that it “strongly
corroborat[es] * * * the defendant’s criminal purpose”
to overcome the victim’s will and obtain property,
Dozier, 848 F.3d at 186, then the defendant has necessarily engaged in the “attempted use[] or threatened
use of physical force” within the meaning of Section
924(c)(3)(A). By including in the elements clause not
only the direct application of force but also attempts
and threats of force, the elements clause covers the waterfront of substantial efforts to employ force as the instrument by which a defendant seeks to obtain others’
property, irrespective of whether those substantial efforts succeed. Cf., e.g., Voisine v. United States, 136
13
S. Ct. 2272, 2278 & n.3 (2016) (noting consistent dictionary and precedential definitions of “ ‘use’ to mean the
‘act of employing’ something”) (citations omitted).
The types of conduct that might sustain a conviction
for attempted Hobbs Act robbery, such as gathering
weapons to rob a store clerk or conduct that would involve passing the clerk a threatening note, are naturally
understood as “attempt[ing]” or “threaten[ing]” the
employment of force. To use the Fourth Circuit’s own
example, a defendant who “pass[es] a threatening note
to a store cashier,” App., infra, 10a, has engaged in a
“threaten[ed] use of physical force” even if the defendant had no intent of carrying out the threat, the cashier
stands her ground, and the defendant walks away
empty-handed. See, e.g., Virginia v. Black, 538 U.S.
343, 360 (2003) (recognizing that a “speaker need not
actually intend to carry out [a] threat”). And Section
924(c)(3)(A)’s language does not distinguish between an
attempt that fails for that reason and a theoretical attempt that fails because the defendant is apprehended
before he actually presents such a note, but has taken a
substantial step toward doing so.
To the contrary, such a defendant has “threatened”
the use of force in the ordinary sense. A statement or
action is objectively a “threat” so long as it “conveys the
notion of an intent to inflict harm” as it “would be understood by a reasonable person.” Elonis v. United
States, 575 U.S. 723, 731, 737 (2015) (citation omitted);
see id. at 732 (surveying dictionary definitions of “threat”
and “threatened”). As the Fourth Circuit noted, a defendant’s particular substantial step in furtherance of
his intent to commit all the elements of Hobbs Act robbery need not be violent in and of itself. App, infra, 9a10a. But a conviction for the offense of attempted
14
Hobbs Act robbery requires that the jury—which
stands in the shoes of a reasonable person, see Hana
Fin., Inc. v. Hana Bank, 574 U.S. 418, 422-423 (2015)—
find that the step establishes a course of action that is
sufficiently certain, if unchecked, to culminate in conduct through which the defendant obtains property
through physical harm or the fear of it. And anyone observing a course of action that has progressed to that
point would naturally describe it as “threaten[ing]” the
use of force.
That is true even if a particular defendant planned
only to “convey[] the notion of an intent to inflict harm,”
Elonis, 575 U.S. at 732, while privately hoping that he
could overcome the victim’s will without actually causing such harm. The definition of a defendant’s conduct
as a “threat” does not turn on the mental state of the
communicator. See id. at 732-733 (definitions of
“threat” turn on “what the statement conveys—not
* * * the mental state of the author”). A store clerk on
the business end of a gun, subject to a demand for
money, would perceive a threat no matter how deeply
the defendant is committed to pacifism. The same is
true of a written note intended to cow the clerk into giving up the money in the register. And to the extent that
an attempted Hobbs Act robbery conviction could be
predicated on conduct evincing the intent to deliver
such a note, but without getting quite to the point of delivery, that would be “threatening” as well. Nothing in
the language of Section 924(c)(3)(A) requires that the
intended victim herself be made aware of the “threatened use of physical force,” 18 U.S.C. 924(c)(3)(A). See,
e.g., United States v. Spring, 305 F.3d 276, 280 (4th Cir.
2002) (“[A] statement may qualify as a threat even if it
is never communicated to the victim.”); United States v.
15
Martin, 163 F.3d 1212, 1216 (10th Cir. 1998) (“This
court has not required that true threats be made directly to the proposed victim.”), cert. denied, 526 U.S.
1137 (1999).
Section 924(c)(3)(A)’s inclusion of an express “attempted use” component reinforces that the definition
of “crime of violence” would encompass that circumstance. A statutory list of alternative categories may
well have some overlap among them. See, e.g., Azar v.
Allina Health Servs., 139 S. Ct. 1804, 1814 (2019)
(“[C]ontrary to the dissent’s suggestion that each item
in the list ‘refers to something different,’ * * * the
items appear to have substantial overlap.”) (citation
omitted). The term “attempted use” accordingly should
not be understood as a hermetically sealed-off set of
crimes that cannot encompass some attempted threats,
nor can “threatened use” be understood as exclusive of
attempts that are objectively threatening while still incomplete. Instead, the mutually supportive terms work
together to emphasize the scope of the statutory definition, which accordingly includes attempted robbery.
Cf., e.g., Encino Motorcars, LLC v. Navarro, 138 S. Ct.
1134, 1141 (2018) (recognizing that a list read as a whole
“bespeaks breadth”); Dole v. United Steelworkers of
Am., 494 U.S. 26, 36 (1990) (“[W]ords grouped in a list
should be given related meaning.”) (citation omitted).
2. The inclusion of attempted Hobbs Act robbery is
the product of deliberate congressional design. The
definition of a “crime of violence” in Section 924(c)(3)(A)
and parallel definitions in statutes like the ACCA,
18 U.S.C. 924(e), were specifically focused on robbery
crimes.
As this Court has recognized, “robbery” is “the quintessential” predicate crime of violence under the ACCA,
16
and thus the center of its elements clause. Stokeling,
139 S. Ct. at 551. In the original ACCA, enacted at the
same time as Section 924(c)(3)’s “crime of violence” definition, Congress expressly listed a prior robbery as a
conviction that could increase the statutory penalties
for unlawful firearm possession. See ibid. Like the
definition of “robbery” in the Hobbs Act, see, e.g.,
United States v. Melgar-Cabrera, 892 F.3d 1053, 1064
(10th Cir.), cert. denied, 139 S. Ct. 494 (2018), the definition of “robbery” in the ACCA “mirrored the elements of the common-law crime,” Stokeling, 139 S. Ct.
551, both including robberies that were committed by
threats of force. Specifically, the ACCA defined robbery as “any felony consisting of the taking of the property of another from the person or presence of another
by force or violence, or by threatening or placing another person in fear that any person will imminently be
subjected to bodily injury.” See 18 U.S.C. App. 1202(c)(8)
(Supp. II 1984); cf. Model Penal Code § 222.1 (1980) (defining robbery as including crimes involving the “threat of
serious bodily injury”).
In 1986, Congress amended the ACCA to “expand[]
the predicate offenses triggering the sentence enhancement from ‘robbery or burglary’ to ‘a violent felony or a
serious drug offense.’ ” Taylor v. United States, 495
U.S. 575, 582 (1990); see Career Criminals Amendment
Act of 1986, Pub. L. No. 99-570, Tit. I, Subtit. I, § 1402,
100 Stat. 3207-39. The more expansive language that
Congress chose largely replicated the language in Section 924(c)(3)’s preexisting “crime of violence” definition. The updated (and still current) ACCA elements
clause—which encompasses crimes that “ha[ve] as an
element the use, attempted use, or threatened use of
physical force against the person of another,” 18 U.S.C.
17
924(e)(2)(B)(i)—has largely tracked the interpretation of the similarly-worded elements clause in Section
924(c)(3)(A). See, e.g., App., infra, 4a n.2; United States
v. Evans, 924 F.3d 21, 29 n.4 (2d Cir.), cert. denied, 140
S. Ct. 505 (2019). Congress’s evident understanding of
that language as an expansion of the prior definition of
“robbery or burglary,” see Taylor, 495 U.S. at 583-584,
confirms that the “attempted use” component—which
the amendment added—and the “threatened use” component should be understood as complementing, rather
than limiting, one another.
Indeed, the legislative record of Section 924(c)(3)(A)’s
enactment explicitly shows that it was designed to cover
attempt crimes, such as “a threatened or attempted
simple assault or battery on another person.” S. Rep.
No. 225, 98th Cong., 1st Sess. 307 (1983) (citing 18
U.S.C. 113(d) and (e) (1982) as examples, which criminalized “[a]ssault by striking, beating, or wounding”
and “[s]imple assault”) (footnotes omitted). That was
true even though some forms of assault—like some
Hobbs Act robberies—may be completed “by putting
another in apprehension of harm” without the use of
physical force itself. Ladner v. United States, 358 U.S.
169, 177 (1958); see, e.g., United States v. Knife, 592
F.2d 472, 482 n.12 (8th Cir. 1979) (“When he forced the
officer into the patrol car at the point of a shotgun and
waved the gun in the officer’s face, Iyotte committed the
offense of simple assault set forth in 18 U.S.C.
§ 113(e).”).
3. “The elected lawmakers wanted to categorically
include attempt crimes in the statutory definition, and
they said so plainly.” Walker, 990 F.3d at 330. In concluding otherwise, the decision below erroneously envisions a category of attempted Hobbs Act robberies in
18
which the defendant took a substantial step toward
completing the robbery, but the defendant’s welldeveloped course of conduct could not be considered an
“attempted use” or “threatened use” of force because a
reasonable person could nonetheless believe that neither the defendant nor his accomplices would ever have
done anything forceful during the robbery, even if the
victim resisted. See Stokeling, 139 S. Ct. at 553 (holding
that “force necessary to overcome a victim’s physical resistance” suffices under the ACCA’s elements clause).
With the actual requirements of attempted Hobbs Act
robbery in focus, however, that category of cases is
difficult to imagine. Cf. Gonzales v. Duenas-Alvarez,
549 U.S. 183, 193 (2007) (looking to “realistic probabilit[ies],” not “theoretical possibilit[ies],” to determine the
scope of a similar provision).
The Fourth Circuit failed to meaningfully address, in
particular, the Hobbs Act’s specific definition of robbery as taking or obtaining property “against [the victim’s] will.” 18 U.S.C. 1951(b)(1); see App., infra, at 11a
n.3 (stating that Hobbs Act robbery “contains no similar
requirement” to the common-law requirement that a
robber “overcome the victim’s resistance”). Because
Hobbs Act robbery requires overcoming the victim’s
will, attempted Hobbs Act robbery requires both intent
to overcome the victim’s will and a substantial step in a
course of conduct directed at that result. See pp. 12-14,
supra. A defendant who satisfies those requirements,
as well as the other requirements of the Hobbs Act, is
inherently engaging in the “attempted use[] or threatened use of physical force against the person or property of another.” 18 U.S.C. 924(c)(3)(A). Indeed, many
attempted robberies, like the one in this case, are more
violent than completed robberies, as they are foiled by
19
a physical confrontation between the perpetrator and
a resisting victim whose will the perpetrator intends to
overcome. The other attempted robbery crimes that
the decision below might also exclude—attempted bank
robbery and attempted carjacking—are similarly often
violent. As the text and history illustrate, Congress did
not counterintuitively exclude some of the most common and most violent crimes in the federal system when
it designed the elements clause of Section 924(c).
B. The Question Presented Warrants This Court’s Review
The decision below creates an entrenched circuit
conflict on a recurring issue of substantial importance.
And in creating that conflict, this case itself provides
the best vehicle to resolve it.
1. The decision below directly conflicts with decisions by four other courts of appeals that have explicitly
recognized that attempted Hobbs Act robbery is a
crime of violence under 18 U.S.C. 924(c)(3)(A). See
Walker, 990 F.3d at 329 (3d Cir.); Dominguez, 954 F.3d
at 1255 (9th Cir.); Ingram, 947 F.3d at 1026 (7th Cir.);
St. Hubert, 909 F.3d at 351-353 (11th Cir.); see also
United States v. Smith, 957 F.3d 590, 596 (5th Cir.) (determining that an attempt to commit a “crime of violence” is itself a “crime of violence”), cert. denied, 141
S. Ct. 828 (2020).
The decision below is also at odds with decisions from
other courts of appeals applying the definition of “crime
of violence” in Section 924(c)(3)(A) to other federal attempt crimes. The decision below specifically identified
attempted bank robbery, in violation of 18 U.S.C.
2113(a), and attempted carjacking, in violation of
18 U.S.C. 2119, as offenses that might also not qualify
as crimes of violence in the Fourth Circuit under the rationale of the decision below. App., infra, 9a-10a. Other
20
courts of appeals have recognized that those offenses do
qualify as crimes of violence, in decisions issued both
before and after the Fourth Circuit’s decision in this
case. See, e.g., Collier v. United States, 989 F.3d 212,
221 (2d Cir. 2021) (attempted bank robbery); Ovalles v.
United States, 905 F.3d 1300, 1304-1307 (11th Cir. 2018)
(per curiam) (attempted carjacking), cert. denied, 139
S. Ct. 2716 (2019); United States v. Armour, 840 F.3d
904, 907-909 (7th Cir. 2016) (attempted bank robbery).
The decision below is also in tension with decisions holding that state attempted robbery offenses qualify as violent felonies under the ACCA’s similarly-worded elements clause. See, e.g., United States v. Thrower, 914
F.3d 770, 776-777 (2d Cir.) (per curiam), cert. denied,
140 S. Ct. 305 (2019) (attempted New York robbery);
Chaney v. United States, 917 F.3d 895, 903-904 (6th
Cir.) (attempted Michigan robbery), cert. denied, 140 S.
Ct. 265 (2019).
The court of appeals was aware of other circuit precedent weighing against its approach but expressly declined to follow its sister circuits. See App., infra, 8a9a. The court then denied a petition for rehearing en
banc, rejecting an opportunity to align itself with the
other circuits. See id. at 24a. And the circuit courts
that have addressed the issue since the court of appeals
issued its opinion in this case have expressly declined to
adopt the Fourth Circuit’s reasoning. See, e.g., Walker,
990 F.3d at 327-328; Collier, 989 F.3d at 221-222. The
circuit conflict therefore will not be resolved without
this Court’s intervention.
2. The conflict concerns an important and recurring
issue. The government frequently prosecutes Section
924(c) offenses connected to attempted Hobbs Act robberies, as well as attempted federal bank robberies and
21
carjackings. Exact comprehensive numbers of such
prosecutions are difficult to find based on existing records, precisely because defendants convicted of attempted robberies are convicted under the very same
statutes and face the same penalties as defendants convicted of completed robberies. But for some perspective, data from the U.S. Sentencing Commission indicate that in Fiscal Year 2019 alone, 813 federal defendants were convicted under both Section 924(c) and a federal robbery statute (18 U.S.C. 1951, 2111, 2113, 2118,
or 2119). * In a random sample of 100 of those cases, approximately 13% included a Section 924(c) conviction
predicated on an attempted robbery. And the United
States Attorney’s Office in the Eastern District of Virginia (from which this case originated) informs this Office that it has already identified approximately 20
cases, some at the Fourth Circuit and some in the district court, in which the defendants committed attempted Hobbs Act robberies and have Section 924(c)
convictions called into question (or, in three instances,
already vacated) as a result of the decision below. More
broadly, robbery is a very common crime. The Bureau
of Justice Statistics reports that in 2017, there were
613,840 robberies in the United States, and in 2018
there were 573,100. See Bureau of Justice Statistics,
U.S. Dep’t of Justice, Criminal Victimizing 2018,
https://www.bjs.gov/content/pub/pdf/cv18.pdf.
That number is likely underinclusive for purposes of the question presented here, because—as this case itself exemplifies—a defendant may be convicted of a Section 924(c) charge based on a robbery or attempted robbery without also being convicted of the robbery or attempt itself. See United States v. Rodriguez-Moreno, 526
U.S. 275, 280 (1999); see, e.g., United States v. Hill, 971 F.2d 1461,
1467 (10th Cir. 1992).
*
22
Because the court of appeals has denied en banc review, the government will be unable to pursue Section
924(c) prosecutions arising from attempted Hobbs Act
robberies (and possibly other attempted federal robberies) in an entire section of the country. Those prosecutions often involve some of the most violent firearmrelated conduct, warranting the consecutive penalties
that Congress enacted in Section 924(c). For example,
following the decision below, the Fourth Circuit has already vacated the Section 924(c) conviction of a defendant who attempted to rob a convenience store and whose
accomplice shot at the store clerk and a customer who
came to the clerk’s aid, hitting the customer in the
forehead, leg, shoulder, and groin. See Order, United
States v. Winston Sylvester Oliver, II, No. 19-4854
(Feb. 5, 2021).
While the courts of appeals were in alignment, numerous defendants unsuccessfully sought this Court’s
review of whether attempted federal robbery offenses
are crimes of violence under Section 924(c). See, e.g.,
Burke v. United States, No. 19-5312 (Nov. 4, 2019) (attempted Hobbs Act robbery); Barriera-Vera v. United
States, 140 S. Ct. 263 (2019) (No. 19-5063) (attempted
bank robbery); Gray v. United States, 140 S. Ct. 63
(2019) (No. 18-9319) (attempted Hobbs Act robbery);
Ovalles v. United States, 139 S. Ct. 2716 (2019) (No. 188393) (attempted carjacking); Myrthil v. United States,
139 S. Ct. 1164 (2019) (No. 18-6009) (attempted Hobbs
Act robbery); St. Hubert v. United States, 139 S. Ct. 246
(2018) (No. 18-5269) (same); Corker v. United States,
139 S. Ct. 196 (2018) (No. 17-9582) (same); Beavers v.
United States, 139 S. Ct. 56 (2018) (No. 17-8059) (same);
Berry v. United States, 138 S. Ct. 2665 (2018) (No.
17-8987) (attempted carjacking); Chance v. United
23
States, 138 S. Ct. 2642 (2018) (No. 17-8880) (attempted
Hobbs Act robbery); Ragland v. United States, 138
S. Ct. 1987 (2018) (No. 17-7248) (same); Sampson v.
United States, 138 S. Ct. 1583 (2018) (No. 17-8183)
(same); Robbio v. United States, 138 S. Ct. 1583 (2018)
(No. 17-8182) (same); James v. United States, 138 S. Ct.
1280 (2018) (No. 17-6295) (same); Griffith v. United
States, 138 S. Ct. 1165 (2018) (No. 17-6855) (attempted
bank robbery); Galvan v. United States, 138 S. Ct. 691
(2018) (No. 17-6711) (attempted carjacking); Wheeler v.
United States, 138 S. Ct. 640 (2018) (No. 17-5660) (attempted Hobbs Act robbery). Those petitions were routinely and appropriately denied before the Fourth Circuit created a circuit conflict. But the decision below,
which sharply deviated from the circuits’ prior consensus, warrants this Court’s review.
This case is an ideal vehicle for further review. The
question is squarely presented, was thoroughly considered below, and provided the sole basis for the court of
appeals’ decision. Compare, e.g., Pet., Dominguez v.
United States (No. 20-1000) (pending petition presenting same question in unpreserved posture). Given the
number of cases affected and the entrenched nature of
the conflict, this Court’s review is needed to restore the
preexisting uniformity.
24
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted.
EDWIN S. KNEEDLER
Deputy Solicitor General †
NICHOLAS L. MCQUAID
Acting Assistant Attorney
General
ERIC J. FEIGIN
Deputy Solicitor General
REBECCA TAIBLESON
Assistant to the Solicitor
General
JOHN M. PELLETTIERI
Attorney
APRIL 2021
The Acting Solicitor General did not participate in the preparation or authorization of this petition.
†
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-7616
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE
v.
JUSTIN EUGENE TAYLOR, A/K/A MOOKIE, A/K/A/ MOOK,
DEFENDANT-APPELLANT
Argued: Sept. 10, 2020
Decided: Oct. 14, 2020
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
M. Hannah Lauck, District Judge.
(3:08-cr-00326-MHL-RCY-1; 3:16-cv-00508-MHL)
Before:
MOTZ, KING, and FLOYD, Circuit Judges.
DIANA GRIBBON MOTZ, Circuit Judge:
In this successive federal habeas petition, Justin Eugene Taylor, convicted of using a firearm in furtherance
of a “crime of violence” in violation of 18 U.S.C. § 924(c),
asks us to vacate this conviction and remand for resentencing. He contends that this conviction was predicated on two offenses—conspiracy to commit Hobbs Act
robbery and attempted Hobbs Act robbery—that do not
constitute “crimes of violence” under § 924(c). The
parties agree that conspiracy to commit Hobbs Act robbery no longer qualifies as a valid § 924(c) predicate.
(1a)
2a
The Government contends, however, that attempted
Hobbs Act robbery does constitute a crime of violence
and so is a valid predicate. The district court so held.
Taylor petitioned for a certificate of appealability, which
we granted. Because the elements of attempted Hobbs
Act robbery do not invariably require “the use, attempted use, or threatened use of physical force,” the
offense does not qualify as a “crime of violence” under
§ 924(c). 1 Accordingly, we vacate Taylor’s § 924(c) conviction and remand for resentencing consistent with this
opinion.
I.
This case arises from a 2003 conspiracy to rob a drug
dealer. Taylor arranged a transaction to sell marijuana to Martin Sylvester, who in turn planned to sell marijuana to others. But Taylor had an ulterior plan: rather than complete the proposed transaction, Taylor and
a coconspirator (whose name does not appear in the record) would steal Sylvester’s money.
After meeting at a mutual acquaintance’s residence,
Taylor and Sylvester traveled together to Richmond,
Virginia. Upon their arrival in Richmond, Taylor instructed Sylvester to meet Taylor’s coconspirator in a
Relying on United States v. Vann, 660 F.3d 771 (4th Cir. 2011)
(en banc) and United States v. Chapman, 666 F.3d 220 (4th Cir.
2012), Taylor also contends that because his § 924(c) conviction rested
on at least one invalid predicate, there is grave ambiguity as to which
predicate constituted the “crime of violence” necessary to sustain his
conviction. See also United States v. Quicksey, 525 F.2d 337 (4th
Cir. 1975). We also granted a certificate of appealability as to this
question. But given our holding that here neither predicate constitutes a “crime of violence” under § 924(c), we cannot reach that question in this case.
1
3a
nearby alleyway to complete the transaction. Sylvester did so, but Taylor’s plan quickly went off the rails.
The coconspirator, who was armed with a semiautomatic
pistol, demanded Sylvester’s money. Sylvester refused
and resisted. The pistol discharged and Sylvester sustained a fatal gunshot wound.
The Government charged Taylor in a seven-count indictment. In relevant part, the indictment alleges Taylor conspired to commit Hobbs Act robbery in violation
of 18 U.S.C. § 1951, attempted Hobbs Act robbery in violation of 18 U.S.C. § 1951, and used a firearm in furtherance of a “crime of violence” in violation of 18 U.S.C.
§ 924(c). The indictment further alleges two predicate
crimes of violence: the conspiracy to commit Hobbs
Act robbery and the attempted Hobbs Act robbery.
Taylor pled guilty to conspiracy to commit Hobbs Act
robbery and use of a firearm in furtherance of a “crime
of violence.” The Government agreed to dismiss the
remaining charges. The district court sentenced Taylor to 240 months’ incarceration for the conspiracy conviction and 120 consecutive months for the § 924(c) conviction, yielding a total sentence of 360 months.
Taylor appealed, but his appeal was dismissed based
on a waiver in his plea agreement. In 2015, the district
court denied Taylor’s first motion to vacate his sentence
under 28 U.S.C. § 2255. In 2016, we granted Taylor
permission to file a second § 2255 motion in light of
Johnson v. United States, 135 S. Ct. 2551 (2015), which
substantially narrowed the definition of “violent felony”
in the Armed Career Criminal Act (ACCA), and Welch
v. United States, 136 S. Ct. 1257 (2016), which held that
4a
Johnson applied retroactively to cases on collateral review. 2
In this second § 2255 motion, Taylor contends that,
after Johnson, attempted Hobbs Act robbery and conspiracy to commit Hobbs Act robbery no longer qualify
as crimes of violence under § 924(c)(3) and so his conviction for use of a firearm in furtherance of a “crime of
violence” must be vacated. During the pendency of
that motion, we invalidated § 924(c)(3)(B), one of the
statute’s two clauses defining “crime of violence,” and
further held that conspiracy to commit Hobbs Act robbery does not qualify as a “crime of violence” under either clause. United States v. Simms, 914 F.3d 229, 23334, 236 (4th Cir. 2019) (en banc). Shortly thereafter, the
Supreme Court similarly invalidated § 924(c)(3)(B) as
unconstitutionally vague.
United States v. Davis,
139 S. Ct. 2319, 2336 (2019).
Notwithstanding these shifts in the legal landscape,
the district court denied Taylor’s second § 2255 motion.
The court held that attempted Hobbs Act robbery
continued to qualify as a “crime of violence” under
§ 924(c)(3)(A) and that Taylor’s conviction for use of a
firearm in furtherance of a “crime of violence” remained
valid because it was predicated on attempted Hobbs Act
robbery. Taylor noted this appeal, and we granted a
Because the definition of “crime of violence” in § 924(c)(3)(A) is
almost identical to the definition of “violent felony” in ACCA our
“decisions interpreting one [] definition are persuasive as to the
meaning of the other[].” United States v. McNeal, 818 F.3d 141,
153 n.9 (4th Cir. 2016).
2
5a
certificate of appealability. For the reasons that follow, we now vacate Taylor’s § 924(c) conviction and remand for resentencing.
II.
Under federal law, a person who uses or carries a
firearm “during and in relation to any crime of violence”
or who “possesses a firearm” “in furtherance of any such
crime” may be convicted of both the underlying “crime
of violence” and the additional crime of utilizing a firearm in connection with a “crime of violence.” 18 U.S.C.
§ 924(c)(1)(A).
Section 924(c)(3) defines “crime of violence” as “an
offense that is a felony” and:
(A) has as an element the use, attempted use, or
threatened use of physical force against the person
or property of another, or
(B) that by its nature, involves a substantial risk
that physical force against the person or property of
another may be used in the course of committing the
offense.
18 U.S.C. § 924(c)(3).
Courts typically refer to
§ 924(c)(3)(A) as the “force clause” and § 924(c)(3)(B) as
the “residual clause.” In view of the Supreme Court’s
invalidation of the residual clause as unconstitutionally
vague, Davis, 139 S. Ct. at 2336, Taylor’s § 924(c) conviction may stand only if attempted Hobbs Act robbery
constitutes a “crime of violence” under the force clause.
To determine whether an offense constitutes a “crime
of violence” under the force clause, courts must employ
the “categorical” approach. Descamps v. United States,
570 U.S. 254, 258 (2013); United States v. Dinkins,
6a
928 F.3d 349, 354 (4th Cir. 2019). Pursuant to the categorical approach, a court “focuses on the elements of
the prior offense rather than the conduct underlying
the conviction.” United States v. Cabrera-Umanzor,
728 F.3d 347, 350 (4th Cir. 2013) (citation omitted) (emphasis in original); see also Simms, 914 F.3d at 233 (observing that, under the categorical approach, our analysis “begins and ends with the offense’s elements”). We
must ask whether the elements of the underlying offense necessarily require “the use, attempted use, or
threatened use of physical force.” McNeal, 818 F.3d at
151-52 (quoting § 924(c)(3)(A)). When the elements of
an offense encompass both violent and nonviolent means
of commission—that is, when the offense may be committed without the use, attempted use, or threatened
use of physical force—the offense is not “categorically”
a “crime of violence.”
To obtain a conviction for attempted Hobbs Act robbery, the Government must prove two elements: (1)
the defendant had the culpable intent to commit Hobbs
Act robbery; and (2) the defendant took a substantial
step toward the completion of Hobbs Act robbery that
strongly corroborates the intent to commit the offense.
See United States v. Engle, 676 F.3d 405, 419-20 (4th
Cir. 2012).
As to the first element, the Hobbs Act penalizes a
person who “in any way or degree obstructs, delays, or
affects commerce . . . by robbery or extortion or attempts or conspires so to do, or commits or threatens
physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of
this section.” 18 U.S.C. § 1951(a). The Hobbs Act defines “robbery” as the “unlawful taking or obtaining of
7a
personal property from the person or in the presence of
another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or
future.” 18 U.S.C. § 1951(b)(1).
With respect to the second element, a “substantial
step” is a “direct act in a course of conduct planned to
culminate in commission of a crime that is strongly corroborative of the defendant’s criminal purpose.”
United States v. Dozier, 848 F.3d 180, 186 (4th Cir. 2017)
(quoting Engle, 676 F.3d at 423). “This definition is
consistent with the definition of attempt found in the
Model Penal Code,” which includes some nonviolent
acts. United States v. Neal, 78 F.3d 901, 906 (4th Cir.
1996); see also Model Penal Code § 5.01(1)(c) (enumerating examples of conduct that constitute a substantial
step, like “possession of materials to be employed in the
commission of the crime”). While “[m]ere preparation
. . .
does not constitute an attempt to commit a
crime,” a “direct, substantial act toward the commission
of a crime need not be the last possible act before its
commission.” United States v. Pratt, 351 F.3d 131, 136
(4th Cir. 2003) (noting that “a specific discussion” may
constitute a “substantial step” where it is “so final in nature that it left little doubt that a crime was intended
and would be committed”).
Our application of the categorical approach to attempted Hobbs Act robbery is informed by our recent
decision in United States v. Mathis, 932 F.3d 242 (4th
Cir. 2019). In Mathis, we held that substantive Hobbs
Act robbery “categorically” qualifies as a “crime of violence” under § 924(c)(3)(A) because although it may be
committed simply by causing “fear of injury,” doing so
“necessarily ‘involves the threat to use [physical] force.’ ”
8a
Id. at 266 (quoting McNeal, 818 F.3d at 153). In other
words, because the commission of Hobbs Act robbery
requires, at a minimum, the “threatened use of physical
force,” it categorically qualifies as a “crime of violence”
under § 924(c)’s force clause.
However, a straightforward application of the categorical approach to attempted Hobbs Act robbery yields
a different result. This is so because, unlike substantive Hobbs Act robbery, attempted Hobbs Act robbery
does not invariably require the use, attempted use, or
threatened use of physical force. The Government
may obtain a conviction for attempted Hobbs Act robbery by proving that: (1) the defendant specifically intended to commit robbery by means of a threat to use
physical force; and (2) the defendant took a substantial
step corroborating that intent. The substantial step
need not be violent. See, e.g., United States v. McFadden, 739 F.2d 149, 152 (4th Cir. 1984) (concluding that
defendants took a substantial step toward bank robbery
where they “discussed their plans,” “reconnoitered the
banks in question,” “assembled [] weapons and disguises,”
and “proceeded to the area of the bank”). Where a defendant takes a nonviolent substantial step toward threatening to use physical force—conduct that undoubtedly
satisfies the elements of attempted Hobbs Act robbery
—the defendant has not used, attempted to use, or
threatened to use physical force. Rather, the defendant has merely attempted to threaten to use physical
force. The plain text of § 924(c)(3)(A) does not cover
such conduct.
Three of our sister circuits have eschewed this conclusion, instead holding that attempted Hobbs Act robbery does qualify as a “crime of violence.” See United
9a
States v. Dominguez, 954 F.3d 1251, 1255 (9th Cir. 2020);
United States v. Ingram, 947 F.3d 1021, 1026 (7th Cir.
2020); United States v. St. Hubert, 909 F.3d 335, 351-53
(11th Cir. 2018). Rather than apply the categorical
approach—as directed by the Supreme Court—they instead rest their conclusion on a rule of their own creation. Specifically, they hold that “[w]hen a substantive
offense would be a violent felony under § 924(e) and similar statutes, an attempt to commit that offense also is a
violent felony.” St. Hubert, 909 F.3d at 351 (quoting
Hill v. United States, 877 F.3d 717, 719 (7th Cir. 2017));
Ingram, 947 F.3d at 1026 (same); Dominguez, 954 F.3d
at 1261 (same). In doing so, those courts adopt the same
flawed premise that the Government recites here: that
an attempt to commit a “crime of violence” necessarily
constitutes an attempt to use physical force. See, e.g.,
St. Hubert, 909 F.3d at 351 (asserting that an attempt to
commit a “crime of violence” “must [] include at least the
‘attempted use’ of force”); Gov’t Br. at 12 (arguing that
“an attempt to commit a substantive crime of violence is
an ‘attempted use . . . of physical force’ ”).
This simply is not so. Rather, as we have repeatedly
held, certain crimes of violence—like Hobbs Act robbery, federal bank robbery, and carjacking—may be
committed without the use or attempted use of physical
force because they may be committed merely by means
of threats. See Mathis, 932 F.3d at 266 (holding that
“Hobbs Act robbery, when committed by means of causing fear of injury, qualifies as a crime of violence”) (emphasis added); McNeal, 818 F.3d at 153 (holding that
“[b]ank robbery under [18 U.S.C.] § 2113(a), ‘by intimidation,’ requires the threatened use of physical force”
and thus “constitutes a crime of violence”) (emphasis
10a
added); United States v. Evans, 848 F.3d 242, 247 (4th
Cir. 2017) (holding “that the term ‘intimidation,’ as used
in the phrase ‘by force and violence or by intimidation’
in the carjacking statute, necessarily includes a threat
of violent force within the meaning of the ‘force clause’ ”)
(emphasis added).
These cases establish that, contrary to the Government’s assertion, an attempt to commit a crime of violence need not involve the attempted use of physical
force. Some crimes of violence can be accomplished
merely though the threatened use of force. The crime
at issue here—attempted Hobbs Act robbery—is just
such a crime. But an attempt to threaten force does
not constitute an attempt to use force. A person who
attempts to commit Hobbs Act robbery by passing a
threatening note to a store cashier has attempted the
planned robbery without using or attempting to use
physical force. He may case the store that he intends
to rob, discuss plans with a coconspirator, and buy weapons to complete the job. But none of this conduct involves an attempt to use physical force, nor does it involve the use of physical force or the threatened use of
physical force. In these circumstances, the defendant
has merely taken nonviolent substantial steps toward
threatening to use physical force. The plain text of
§ 924(c)(3)(A) does not embrace such activity.
Resisting this conclusion, the Government protests
that application of the categorical approach here would,
by extension, “leave[] all federal attempt crimes,” even
attempted murder, “outside § 924(c)(3)(A).” Gov’t Br.
at 18 (emphasis in original). Not so. To be sure, where
a crime of violence may be committed without the use or
attempted use of physical force, an attempt to commit
11a
that crime falls outside the purview of the force clause.
But where a crime of violence requires the use of physical force—as is usually the case—the categorical approach produces the opposite outcome: because the
substantive crime of violence invariably involves the use
of force, the corresponding attempt to commit that crime
necessarily involves the attempted use of force. Such
an attempt constitutes a “crime of violence” within the
meaning of the force clause in § 924(c)(3). See, e.g.,
Mathis, 932 F.3d at 265 (explaining that “[m]urder requires the use of force capable of causing physical pain
or injury to another person” and so “qualifies categorically as a crime of violence under the force clause”) (quotation marks omitted) (emphasis added); In re Irby, 858
F.3d 231, 236 (4th Cir. 2017) (holding that “seconddegree retaliatory murder is a crime of violence under
the force clause because unlawfully killing another human being requires the use of force”) (emphasis added).
Thus, the Government’s dire warning rests on a misunderstanding of the consequences of adhering to the categorical approach in this case. 3
In a post-argument letter, the Government contends that Stokeling v. United States, 139 S. Ct. 544 (2019), supports its view that
attempted Hobbs Act robbery constitutes a crime of violence.
Stokeling is of no aid to the Government because Stokeling considered only whether common law robbery constitutes a “violent felony”; it held it did because common law robbery “require[s] the criminal to overcome the victim’s resistance.” Id. at 550. But of course,
the crime at issue here, Hobbs Act robbery, contains no similar requirement. Rather, Hobbs Act robbery criminalizes the “unlawful
taking or obtaining of personal property . . . by means of actual
or threatened force.” 18 U.S.C. § 1951(b)(1) (emphasis added).
Compare Stokeling, 139 S. Ct. at 550 (noting that “at common law,
3
12a
Accordingly, we hold that attempted Hobbs Act robbery is not “categorically” a “crime of violence.” We
must vacate Taylor’s § 924(c) conviction predicated on
attempted Hobbs Act robbery and conspiracy to commit
Hobbs Act robbery—two offenses that are not crimes of
violence.
III.
For these reasons, we reverse the district court, vacate Taylor’s § 924(c) conviction, and remand for resentencing consistent with this opinion.
VACATED AND REMANDED
an unlawful taking was merely larceny unless the crime involved ‘violence,’ ” defined as “sufficient force [] exerted to overcome the resistance encountered”). Thus, as we held in Mathis, Hobbs Act robbery does not require an offender to overcome the victim’s resistance; instead, this federal statutory crime, unlike common law robbery, may be committed solely by causing fear of injury—that is, by
conveying a threat—and a threat does not itself constitute “force []
exerted to overcome the resistance encountered.” Id.
13a
APPENDIX B
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION
Criminal No. 3:08CR326
UNITED STATES OF AMERICA
v.
JUSTIN EUGENE TAYLOR, PETITIONER
[Filed:
Aug. 26, 2019]
MEMORANDUM OPINION
Justin Eugene Taylor, a federal inmate proceeding
with counsel, brings this successive motion pursuant to
28 U.S.C. § 2255 to vacate, set aside, or correct his sentence (“§ 2255 Motion,” ECF No. 76). Taylor contends
that his firearm conviction and sentence are invalid under Johnson v. United States, 135 S. Ct. 2551 (2015).
The Government filed a Motion to Dismiss the § 2255
Motion, contending that the relevant statute of limitations bars relief. (ECF No. 81.) The Court subsequently ordered further briefing. In its Supplemental Mem-
14a
orandum, the Government argues, inter alia, that Taylor’s claim lacks merit.1 (ECF No. 89.) Taylor filed
his Reply. (ECF No. 92.) As discussed below, the Court
finds that Taylor’s claim lacks merit and may be dismissed on that ground.
I.
Procedural History
On February 4, 2009, a grand jury charged Taylor
with: conspiracy to possess with intent to distribute and
distribute marijuana (Count One); attempted distribution of marijuana (Count Two); possession of a firearm
in furtherance of a drug trafficking crime (Count Three);
use and carry of a firearm during and in relation to a
drug trafficking crime, to wit, attempting to distribute
marijuana as charged in Count Two (Count Four); conspiracy to interfere with commerce by threats and violence (“Hobbs Act robbery”) (Count Five); one count of
attempting to aid and abet Hobbs Act robbery (Count
Six); and, use and carry of a firearm in furtherance of a
felony crime of violence, to wit, “conspiracy to interfere
with commerce by armed robbery as charged in Count
Five and Interference with Commerce by Threats and
Force as charged in Count Six,” in violation of 18 U.S.C.
§ 924(c) (Count Seven). (Sec. Super. Indictment 1-4,
ECF No. 17.) On February 13, 2009, Taylor pled guilty
to Counts Five and Seven of the Second Superseding
Indictment. (Plea Agreement ¶ 1, ECF No. 31.) The
Government agreed to dismiss the other five counts.
(Id. ¶ 12.)
In addition to the timeliness arguments made in the Motion to
Dismiss, the Government also argues that Taylor’s claim is procedurally defaulted. (Supp’l Mem. 10-13.) The Court need not address
this argument because the Court finds Taylor’s claim lacks merit.
1
15a
In the Statement of Facts supporting his guilty plea
to Counts Five and Seven, Taylor agreed that following
facts were true:
Starting before January 1, 2012, and continuing
through December 14, 2003, and thereafter, JUSTIN
EUGENE TAYLOR conspired with others to distribute and possess with intent to distribute marijuana. In furtherance of this conspiracy, JUSTIN
EUGENE TAYLOR and others, known and unknown, would obtain wholesale quantities of marijuana and distribute the marijuana to coconspirators
for redistribution. Also, in furtherance of this conspiracy, JUSTIN EUGENE TAYLOR and others
would arrange wholesale marijuana transactions and,
rather than complete the transaction, would take the
money from the customer, intentionally fail to distribute the marijuana to the customer, and use the
money to finance their own drug trafficking business.
Prior to August 14, 2003, JUSTIN EUGENE
TAYLOR met with Martin Sylvester and Jonathan
Hartzell. During that meeting JUSTIN EUGENE
TAYLOR discussed his ability to supply Martin Sylvester with marijuana for redistribution and exchanged cell phone numbers with Sylvester.
On August 14, 2003, JUSTIN EUGENE TAYLOR arranged to meet Martin Sylvester for the purpose of distributing marijuana to Sylvester so that
Sylvester could redistribute the marijuana to others.
Per their arrangements, JUSTIN EUGENE TAYLOR met Martin Sylvester and Jonathan Hartzell at
the residence of a mutual acquaintance. JUSTIN
EUGENE TAYLOR was driven in his car to the res-
16a
idence by his Coconspirator, who dropped off JUSTIN EUGENE TAYLOR without being seen. JUSTIN EUGENE TAYLOR met with Sylvester and
Hartzell at the residence and then rode in Hartzell’s
car with Hartzell and Sylvester to the area of Hanover Avenue and North Lombardy Street, in the City
of Richmond, Virginia, in order to obtain marijuana
for Sylvester. Upon arriving at that area, JUSTIN
EUGENE TAYLOR asked Sylvester for the money
to pay for the marijuana, but Sylvester refused to
give the money to JUSTIN EUGENE TAYLOR until he saw the marijuana. JUSTIN EUGENE TAYLOR left Hartzell’s vehicle in order to obtain the marijuana, however, he was unable to do so.
JUSTIN EUGENE TAYLOR contacted his Coconspirator and the two of them devised a plan to
steal the money that Sylvester had to purchase the
marijuana. Pursuant to that plan, the Coconspirator, who was armed with a 9mm semiautomatic pistol,
would pose as the drug dealer, meet with Sylvester
and demand to see the purchase money. Upon Sylvester showing Coconspirator the money, the plan
was for the Conspirator to take the money by force
and flee the area with JUSTIN EUGENE TAYLOR,
in JUSTIN EUGENE TAYLOR’S car. JUSTIN
EUGENE TAYLOR did not explicitly plan or agree
to kill Martin Scott Silvester [sic].
Pursuant to this plan, the Coconspirator went to
the alleyway located between Hanover and Grove Avenues, and North Lombardy and North Vine Streets.
JUSTIN EUGENE TAYLOR called Sylvester and
told him to meet the man in the alleyway to obtain the
17a
marijuana. JUSTIN EUGENE TAYLOR then went
to his car to wait for the Coconspirator.
The Coconspirator met Sylvester in the alleyway,
displayed the 9mm semiautomatic pistol and demanded
Sylvester’s marijuana purchase money. Martin Sylvester resisted, the pistol discharged and Martin Sylvester was fatally shot. Martin Sylvester died the
next day from a gunshot wound.
The Coconspirator fled to JUSTIN EUGENE
TAYLOR’S care and the Conspirator and JUSTIN
EUGENE TAYLOR fled the area.
(Statement of Facts ¶¶ 1-7 (paragraph numbers omitted).)2
On May 24, 2009, the Court entered judgment against
Taylor and sentenced him to 240 months of imprisonment on Count Five, and 120 months of imprisonment
on Count Seven, to run consecutively. (J. 3, ECF No.
44 (as paginated by CM/ECF).)
By Memorandum Opinion and Order entered on July
7, 2015, the Court denied on the merits Taylor’s first
§ 2255 motion. (ECF Nos. 69, 70.) On June 24, 2016,
the Fourth Circuit granted Taylor permission to file a
successive § 2255 motion based on Johnson v. United
States, 135 S. Ct. 2551 (2015). (ECF No. 74.) On June
27, 2016, Taylor filed the instant § 2255 Motion. (ECF
No. 76.)
It appears that the Government may have spelled the victim’s
name wrong in the Statement of Facts as the Superseding Indictment spells the victim’s name “Silvester” rather than “Sylvester.”
The Court spells the victim’s name as the Government spells it in
each document quoted here.
2
18a
II.
Johnson v. United States
In Johnson v. United States, the Supreme Court described the impact of the Armed Career Criminal Act
“(ACCA”) on federal gun laws and noted that:
Federal law forbids certain people—such as convicted felons, persons committed to mental institutions, and drug users—to ship, possess, and receive
firearms. § 922(g). In general, the law punishes
violation[s] of this ban by up to 10 years’ imprisonment. § 924(a)(2). But if the violator has three or
more earlier convictions for a “serious drug offense”
or a “violent felony,” the [ACCA] increases his prison
term to a minimum of 15 years and a maximum of life.
§ 924(e)(1).
135 S. Ct. 2551, 2555 (2015) (citations omitted).
The ACCA defines a violent felony as: “any crime
punishable by imprisonment for a term exceeding one
year” and “(i) has as an element the use, attempted use,
or threatened use of physical force against the person of
another; or (ii) is burglary, arson, or extortion, involves
use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
another.” 18 U.S.C. § 924(e)(2)(B) (emphasis added).
“The closing words of this definition, italicized above,
have come to be known as the Act’s residual clause.”
Johnson, 135 S. Ct. at 2556. In Johnson, the Supreme
Court held that the residual clause of the ACCA is unconstitutionally vague because the clause encompassed
“conduct that presents a serious potential risk of physical injury to another,” which defied clear definition.
Id. at 2557-58 (citation omitted). Subsequently, in
Welch v. United States, the Supreme Court held that
19a
“Johnson announced a substantive rule [of law] that
has retroactive effect in cases on collateral review.”
136 S. Ct. 1257, 1268 (2016).
III.
Analysis
Taylor asserts that the substantive rule announced in
Johnson affords him relief. However, Taylor’s claim
lacks merit. See United States v. Nahodil, 36 F.3d 323,
326 (3d Cir. 1994) (noting that a district court may summarily dismiss a § 2255 motion where “files, and records
‘show conclusively that the movant is not entitled to relief ” (quoting United States v. Day, 969 F.2d 39, 41-42
(3d Cir. 1992))). Taylor pled guilty to conspiracy to
commit Hobbs Act robbery and using and carrying a
firearm in furtherance of a felony crime of violence, to
wit, “conspiracy to interfere with commerce by armed
robbery as charged in Count Five and attempting to aid
and abet Interference with Commerce by Threats and
Force as charged in Count Six.” (Sec. Super. Indictment 3-4.)3 Taylor contends that, after Johnson, the offenses of attempting to aid and abet Hobbs Act robbery
and conspiracy to commit Hobbs Act robbery can no
longer qualify as a crime of violence under 18 U.S.C.
§ 924(c)(3), and thus the Court must vacate his conviction for Count Seven.4 Taylor is incorrect.
3
Both Counts Five and Six arose from the robbery and killing of
Martin Silvester on August 14, 2002. (Sec. Superseding Ind. 3-4.)
4
Title 18 U.S.C. section 924(c)(1)(A) provides for consecutive periods of imprisonment when a defendant uses or carries a firearm in
furtherance of a crime of violence. The baseline additional period
of imprisonment is five years. 18 U.S.C. § 924(c)(1)(A)(i). If the
defendant brandishes the firearm, the additional period of imprisonment increases to at least seven years. Id. § 924(c)(1)(A)(ii). And,
20a
At the time of Taylor’s conviction, the United States
could demonstrate that an underlying offense constituted a crime of violence if it established that the offense
was a felony and satisfied one of two requirements.
Namely, the statute defines a crime of violence as any
felony:
(A)
[that] has as an element the use, attempted use,
or threatened use of physical force against the
person or property of another [(the “Force
Clause”)], or
(B)
that by its nature, involves a substantial risk
that physical force against the person or property of another may be used in the course of
committing the offense [(the “Residual
Clause”)].
Id. § 924(c)(3). The Supreme Court recently invalidated the Residual Clause. United States v. Davis, 139
S. Ct. 2319, 2336 (2019) (holding that Ҥ 924(c)(3)(B) is
unconstitutionally vague”). Despite the invalidity of
the Residual Clause, attempting to aid and abet Hobbs
Act robbery qualifies as a crime of violence under the
Force Clause.
Here, Taylor’s § 924(c) conviction was predicated on
two counts: conspiracy to commit Hobbs Act robbery
as charged in Count Five and attempting to aid and abet
Hobbs Act robbery as charged in Count Six. (Indictment
4.) The Hobbs Act makes it a crime to obstruct, delay,
or affect commerce “by robbery” or to “attempt[ ] or
if the defendant discharges the firearm, the additional period of imprisonment increases to at least ten years. Id. § 924(c)(1)(A)(iii).
21a
conspire[ ] to do so” or to “commit[ ] or threaten[ ] physical violence to any person or property in furtherance of
a plan or purpose to do anything in violation of this section. . . . ” 18 U.S.C. § 1951(a). “Robbery” under
the Hobbs Act is defined as “the unlawful taking or obtaining of personal property” from a person “by means
of actual or threatened force, or violence, or fear of injury, immediate or future.” Id. § 1951(b)(1).
Hobbs Act robbery remains a qualifying crime of violence under the Force Clause. United States v. Mathis,
— F.3d —, Nos. 16-4633, 16-4635, 16-4637, 16-4641,
16-4837, 16-4838, 2019 WL 3437626, at *16 (4th Cir. July
31, 2019) (citations omitted) (holding that “Hobbs Act
robbery constitutes a crime of violence under the force
clause of Section 924(c)”). Although the Fourth Circuit
has invalidated any reliance on conspiracy to commit
Hobbs Act robbery as a predicate crime of violence for
§ 924(c), United States v. Simms, 914 F.3d 229 (4th Cir.
2019), attempting to aid and abet Hobbs Act robbery
constitutes a valid crime of violence under the Force
Clause because it invariably requires the actual, attempted, or threatened use of physical force. United
States v. St. Hubert, 909 F.3d 335, 351 (11th Cir. 2018),
cert. denied, 139 S. Ct. 1394 (2019) (“attempted Hobbs
Act robbery qualifies as a crime of violence under
§ 924(c)(3)(A)’s use-of-force clause because that clause
expressly includes ‘attempted use’ of force”); see
Mathis, 2019 WL 3437626, at *16; see also In re Colon,
826 F.3d 1301, 1305 (11th Cir. 2016) (because aiding and
abetting presents an alternative charge that permits
one to be found guilty as a principal, “conviction for aiding and abetting a Hobbs Act robbery qualifies as a
‘crime of violence’ under the § 924(c)(3)(A) use-of-force
22a
clause”). And because the substantive offense of Hobbs
Act robbery “has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another,” then an aider and abettor of a
Hobbs Act robbery necessarily commits a crime that
“has as an element the use, attempted use, or threatened
use of physical force against the person or property of
another.”
Accordingly, Taylor’s conviction for attempted aiding and abetting a Hobbs Act robbery qualifies as a “crime of violence” under the § 924(c)(3)(A)
Force Clause, without regard to the § 924(c)(3)(B) Residual Clause.
Thus, Taylor’s conviction remains valid after Johnson and its progeny because it was predicated on attempting to aid and abet Hobbs Act robbery charged in
Count Six. See United States v. Doyle, No. 2:18cr177,
2019 WL 3225705, at *3-4 (E.D. Va. July 17, 2019) (finding § 924(c) conviction valid when based on both conspiracy to commit Hobbs Act robbery and Hobbs Act robbery); cf. United States v. Hare, 820 F.3d 93, 105-06 (4th
Cir. 2016) (explaining that “the court need not reach the
merits of this argument . . . [because]” a § 924(c)
conviction predicated on both conspiracy to commit
Hobbs Act robbery and in furtherance of a drug trafficking crime is not affected by Johnson). Accordingly,
Taylor’s claim pursuant to Johnson lacks merit and will
be DISMISSED.
III.
Conclusion
The § 2255 Motion (ECF No. 76) will be DENIED.
The Government’s Motion to Dismiss (ECF No. 81) will
be DENIED as MOOT. Taylor’s claim and the action
will be DISMISSED.
23a
An appeal may not be taken from the final order in a
§ 2255 proceeding unless a judge issues a certificate of
appealability (“COA”). 28 U.S.C. § 2253(c)(1)(B). A
COA will not issue unless a prisoner makes “a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). This requirement is satisfied
only when “reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have
been resolved in a different manner or that the issues
presented were ‘adequate to deserve encouragement to
proceed further.’ ” Slack v. McDaniel, 529 U.S. 473,
484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893
& n.4 (1983)). Taylor has not satisfied this standard.
Accordingly, a COA will be DENIED.
An appropriate Order will accompany this Memorandum Opinion.
/s/ M. HANNAH LAUCK
M. HANNAH LAUCK
United States District Judge
Date: [Aug. 26, 2019]
Richmond, Virginia
24a
APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-7616
(3:08-cr-00326-MHL-RCY-1)
(3:16-cv-00508-MHL)
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE
v.
JUSTIN EUGENE TAYLOR, A/K/A MOOKIE, A/K/A/ MOOK,
DEFENDANT-APPELLANT
Filed:
Dec. 11, 2020
ORDER
The petition for rehearing en banc was circulated to
the full court. No judge requested a poll under Fed. R.
App. P. 35. The court denies the petition for rehearing
en banc.
For the Court
/s/
PATRICIA S. CONNOR, Clerk
PATRICIA S. CONNOR
25a
APPENDIX D
1.
18 U.S.C. 2113(a) provides:
Bank robbery and incidental crimes
(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of
value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any
savings and loan association; or
Whoever enters or attempts to enter any bank, credit
union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or
as a savings and loan association, with intent to commit
in such bank, credit union, or in such savings and loan
association, or building, or part thereof, so used, any felony affecting such bank, credit union, or such savings
and loan association and in violation of any statute of the
United States, or any larceny—
Shall be fined under this title or imprisoned not more
than twenty years, or both.
26a
2.
18 U.S.C. 2119 provides:
Motor vehicles
Whoever, with the intent to cause death or serious
bodily harm1 takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force
and violence or by intimidation, or attempts to do so,
shall—
(1) be fined under this title or imprisoned not
more than 15 years, or both,
(2) if serious bodily injury (as defined in section
1365 of this title, including any conduct that, if the
conduct occurred in the special maritime and territorial jurisdiction of the United States, would violate
section 2241 or 2242 of this title) results, be fined under this title or imprisoned not more than 25 years,
or both, and
(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both,
or sentenced to death.
1
So in original.
Probably should be followed by a comma.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.