Reply Brief — Michael Hall, Petitioner v. United States

No. 21-5644

In The Supreme Court Of The United States

Michael Hall, Leonard Jones, and Tierre Cole,

v.

Petitioners,

United States of America,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

Joint Reply Brief in Support of Petition for a Writ of Certiorari

RENE L. VALLADARES

Federal Public Defender

*Wendi L. Overmyer

*Amy B. Cleary

*Aarin E. Kevorkian

Assistant Federal Public Defenders

Office of the Federal Public Defender

411 E. Bonneville, Ste. 250

Las Vegas, Nevada 89101

(702) 388-6577

Wendi_Overmyer@fd.org

Amy_Cleary@fd.org

Aarin_Kevorkian@fd.org

*Counsel for Petitioners

Dated: October 26, 2021

Table of Contents

Table of Contents ........................................................................................................... ii

Table of Authorities ...................................................................................................... iii

Reply Brief in Support of Petition for Certiorari.......................................................... 1

I.

Aiding and abetting Hobbs Act robbery does not qualify as a

§ 924(c) crime of violence ..................................................................... 2

II.

Hobbs Act robbery does not qualify as a crime of violence ............... 3

A.

The Hobbs Act robbery statute’s plain language is overbroad. ...... 3

B.

This Court’s recent interpretation of the physical force clause in

Borden further demonstrates the need for review .......................... 5

III.

Review is not precluded by this Court’s pending review of

attempted Hobbs Act robbery .......................................................... 6

IV.

The government does not dispute that proper interpretation of

18 U.S.C. § 924(c) is of exceptional, national importance ................ 7

Conclusion ...................................................................................................................... 8

ii

Table of Authorities

Federal Constitution

Page(s)

U.S. Const. amend. V .................................................................................................... 1

Federal Cases

Borden v. United States,

141 S. Ct. 1817 (2021) ..................................................................................... 1, 5, 6

Descamps v. United States,

570 U.S. 254 (2013) ................................................................................................. 4

United States v. Dominguez,

954 F.3d 1251 (2020),

pet. for cert. pending, No. 20-1000 (filed Jan. 21, 2021)......................................... 3

Izumi v. U.S. Philips Corp.,

510 U.S. 27 (1993) ................................................................................................... 7

Mathis v. United States,

136 S. Ct. 2251 (2016) ............................................................................................. 4

United States v. Davis,

139 S. Ct. 2319 (2019) ......................................................................................... 1, 4

United States v. Du Bo,

186 F.3d 1177 (9th Cir. 1999) ................................................................................. 5

United States v. García-Ortiz,

904 F.3d 102 (1st Cir. 2018) ................................................................................... 5

United States v. Gray,

260 F.3d 1267 (11th Cir. 2001) ............................................................................... 5

United States v. Grisel,

488 F.3d 844 (9th Cir. 2007) (en banc) ................................................................... 4

Federal Statutes

18 U.S.C. § 2 ............................................................................................................. 1, 2

18 U.S.C. § 924 .................................................................................................... passim

18 U.S.C. § 1951 .................................................................................................. passim

18 U.S.C. § 3559 ........................................................................................................... 7

18 U.S.C. § 3583 ........................................................................................................... 7

iii

Court Rules

Supreme Court Rule 24(1)(a) ....................................................................................... 7

Other

Brief for the United States in Opposition,

Stallworth v. United States, No. 20-6563 (U.S. Mar. 15, 2021),

cert. denied, 141 S. Ct. 2524 (2021) ........................................................................ 2

Brief for the United States in Opposition,

Steward v. United States, No. 19-8043 (U.S. May 21, 2020),

cert. denied, 141 S. Ct. 167 (2020) .......................................................................... 3

iv

Reply Brief in Support of Petition for a Writ of Certiorari

Petitioners Michael Hall, Leonard Jones, and Tierre Cole have jointly

petitioned for a writ of certiorari on two issues resulting from United States v.

Davis, 139 S. Ct. 2319 (2019). Joint Petition (Pet.) at 17-38. In Davis, this Court

held the 18 U.S.C. § 924(c)(3)(A) residual clause is unconstitutionally vague,

violating the Due Process Clause—a holding the government does not dispute is

retroactive to cases on collateral review like Petitioners’. U.S. Const. amend. V;

Government Brief in Opposition (Gov. Brief) at 7-11.

The issues presented are intertwined. The first inquires whether federal

Circuits have failed to apply the categorical analysis to the distinct elements of

aiding and abetting Hobbs Act robbery, 18 U.S.C. §§ 1951(a) and 2, which do not

meet the requirements of § 924(c)(3)(A)’s force clause. The second inquires whether

the federal Circuits have interpreted substantive Hobbs Act robbery, 18 U.S.C. §

1951(a), too narrowly and against the statutory plain language by requiring violent

physical force as an offense element. This Court’s recent decision in Borden v.

United States, 141 S. Ct. 1817 (2021), impacts both inquires by holding the force

clause requires intentional use of force, which Hobbs Act robbery lacks.

Because only the force clause of § 924(c) remains, the Circuits have now

interpreted offenses that used to be caged within the residual clause to make them

“fit” within the force clause. It is imperative this Court decide the proper

interpretation of aiding and abetting Hobbs Act robbery so defendants are not

mandatorily imprisoned for offenses not truly fitting the § 924(c) definition.

1

I.

Aiding and abetting Hobbs Act robbery does not qualify as a § 924(c) crime of

violence.

The government does not dispute that the § 924(c) convictions in Petitioners’

cases rest on aiding and abetting Hobbs Act robbery, 18 U.S.C. §§ 1951(a) and 2.

Gov. Brief at 3-4. Yet the government makes the same mistake as the Circuit

courts by not applying the categorical analysis to the distinct elements of aiding and

abetting Hobbs Act robbery. Pet. at 20-28 (detailing correct categorical analysis for

aiding and abetting Hobbs Act robbery).

Instead, the government merely incorporates a previous argument that

aiding and abetting qualifies as a crime of violence when the substantive crime

qualifies as a crime of violence and that an aider and abettor is punished as the

principal. Gov. Brief at 3-4 (incorporating Brief for the United States in Opposition

at 7-12, Stallworth v. United States, No. 20-6563 (U.S. Mar. 15, 2021), cert. denied,

141 S. Ct. 2524 (2021)). Both arguments are flawed. First, Hobbs Act robbery lacks

intentional use of force and can be committing without the use or attempted use of

force, as detailed below and in the petition for a writ of certiorari. Pet. at 30-38.

Second, punishment alone does not define the categorical analysis, which instead

analyzes statutory elements. Pet. at 29-30.

Thus, Petitioners ask this Court to grant review, rectify the Circuits’

disregard of categorical analysis, and resolve whether aiding and abetting Hobbs

Act robbery is a crime of violence under § 924(c)’s force clause.

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II.

Hobbs Act robbery does not qualify as a crime of violence.

Substantive Hobbs Act robbery, 18 U.S.C. § 1951(a), can be committed by

causing fear of future injury to intangible property and does not require intentional

use of force. It is therefore not a § 924(c) crime of violence. But to make the Hobbs

Act robbery statute “fit” the 18 U.S.C. § 924(c)(3)(A) physical force clause definition,

the Circuits have repeated narrowed the conduct that Hobbs Act robbery used to

cover.

A.

The Hobbs Act robbery statute’s plain language is overbroad.

Hobbs Act robbery plainly encompasses causing fear of future injury to

property—either tangible or intangible. Pet. at 30-38. In response, the government

incorporates the Ninth Circuit’s holding in United States v. Dominguez, 954 F.3d

1251 (2020), pet. for cert. pending, No. 20-1000 (filed Jan. 21, 2021), that Hobbs Act

robbery still constitutes a crime of violence under § 924(c)’s physical force clause.

Gov. Brief at 2-3 (incorporating Brief for the United States in Opposition at 10,

Steward v. United States, No. 19-8043 (U.S. May 21, 2020), cert. denied, 141 S. Ct.

167 (2020) (“Gov. Steward Brief”)). The government also incorporates the Ninth

Circuit’s belief that there is no “realistic scenario in which a robber could commit

Hobbs Act robbery by placing his victim in fear of injury to an intangible economic

interest.” See Gov. Steward Brief at 10 (quoting Dominguez, 954 F.3d at 1260).

But the government, as did Dominguez, misapplies the categorical approach.

When a “statute explicitly defines a crime more broadly” than the crime of violence

definition, “no ‘legal imagination’ is required to hold that a realistic probability [of

3

prosecution] exists”—the “statute’s greater breadth is evident from its text.” United

States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (en banc), abrogated on other

grounds by United States v. Stitt, 139 S. Ct. 399 (2018).

Dominguez does not bind this Court. Dominguez was also wrongly decided,

conflicting with both this Court’s and the Ninth Circuit’s precedent. Pet. at 34-38

(citing, among other cases, Descamps v. United States, 570 U.S. 254, 261 (2013),

and Grisel, 488 F.3d at 850). In addition, the “rule of lenity’s teach[es] that

ambiguities about the breadth of a criminal statute should be resolved in the

defendant’s favor.” Davis, 139 S. Ct. at 2333.

Therefore, Hobbs Act robbery under 18 U.S.C. § 1951(a) is overbroad because

its very text states it can be committed by causing “fear of injury” to intangible

property, rather than requiring the violent physical force necessary under § 924(c)’s

physical force clause. Pet. at 14-18. Moreover, the government does not claim that

Hobbs Act robbery is divisible. See Gov. Brief at 2-6; Gov. Steward Brief at 6-12.

An overbroad, indivisible offense cannot categorically be a crime of violence. Mathis

v. United States, 136 S. Ct. 2251, 2251-52 (2016).

Because Hobbs Act robbery is both overbroad and indivisible, a conviction

under 18 U.S.C. § 1951(a) cannot qualify as a predicate offense under 18 U.S.C. §

924(c)’s physical force clause. The Ninth Circuit’s contrary holding is legally

erroneous and requires correction by this Court.

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B.

This Court’s recent interpretation of the physical force clause in

Borden reinforces the need for review.

Whether a predicate offense qualifies under § 924(c)’s physical force clause is

a question that must be examined under the law in place today—including this

Court’s recent clarification that the force clause requires the intentional use of force.

Borden, 141 S. Ct. at 1826.

The government contends there is no “sound basis” that “Hobbs Act robbery

can be committed recklessly,” asserting Borden does not apply here. Gov. Brief at 3.

Yet the federal Circuits hold that Hobbs Act robbery carries “an implicit mens rea

element of general intent—or knowledge—as to the actus reus of the offense.”

United States v. García-Ortiz, 904 F.3d 102, 108–09 (1st Cir. 2018) (citing United

States v. Gray, 260 F.3d 1267, 1283 (11th Cir. 2001) (noting circuit precedent

suggesting a “knowing” mens rea standard for Hobbs Act robbery and rejecting a

requirement of specific intent to commit the crime); and United States v. Du Bo, 186

F.3d 1177, 1179 (9th Cir. 1999) (knowing conduct is an “implied and necessary

element” of Hobbs Act robbery)). A “knowing” mens rea equates with recklessness,

as Justice Kavanaugh noted in his Borden dissent: “[a]s has long been recognized,

the difference between knowledge and recklessness as to the consequences of one’s

actions is one of degree, not of kind.” Borden, 141 S. Ct. at 1844 (Kavanaugh, J.,

dissenting). Hobbs Act robbery thus lacks the specific intent to use force, failing to

qualify as a crime of violence under Borden.

Borden also explains it is insufficient under the physical force clause’s mens

rea requirement for an offense to merely require intentional performance of a

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particular act. Borden, 141 S. Ct. at 1826. Both the plurality and concurring

opinions agreed that, to satisfy the physical force clause, the offense elements

must require a specific intent to harm another. Borden, 141 S. Ct. at 1825-27

(plurality opinion), 1834 (Thomas, J., concurring). Borden requires intentional use

of force—there must be a “conscious object (not the mere recipient) of the force.” Id.

at 1826. What is dispositive under the physical force clause, the plurality

underscored, is not that a defendant’s prior actions did cause harm, but that–

when he acted–he intended to harm another. Id. at 1831 & n.8. Justice Thomas,

who supplied the fifth vote, agreed with the plurality on that critical point: the

elements clause only captures intentional conduct “designed to cause harm” to

another. Id. at 1835 (Thomas, J., concurring).

Given Borden, this Court’s review is necessary as Hobbs Act robbery can be

violated with unintentional force. It does not require that force, attempted force, or

threatened force to be intentionally directed against another person or property,

and thus does not qualify under § 924(c)’s force clause.

III.

Review is not precluded by this Court’s pending review of attempted Hobbs Act

robbery.

The defendant in Dominguez has requested review of the Ninth Circuit’s

attempted Hobbs Act robbery holding relative to § 924(c)’s physical force clause—an

issue on which this Court granted review in United States v. Taylor, No. 20-1459

(oral argument scheduled for Dec. 7, 2021). Gov. Brief at 5-6. But review of

attempted Hobbs Act robbery does not foreclose review of aiding and abetting Hobbs

Act robbery or substantive Hobbs Act robbery here.

6

And this Court may grant a writ of certiorari in Dominguez on any question

presented by the record and law, even if not raised by a petitioner. Izumi v. U.S.

Philips Corp., 510 U.S. 27, 32-33 and n.6 (1993) (noting that a question presented

“does not limit our power to decide important questions not raised by the parties”)

(listing cases); see also Supreme Court Rule 24(1)(a) (“At its option, however, the

Court may consider a plain error not among the questions presented but evident

from the record and otherwise within its jurisdiction to decide.”).

The Circuit errors as to aiding and abetting Hobbs Act robbery and

substantive Hobbs Act robbery under § 924(c)’s physical force clause remain binding

on the courts below, resulting in unconstitutional, mandatory, consecutive prison

terms. Petitioners present this Court the opportunity to correct these errors.

IV.

The government does not dispute that proper interpretation of 18 U.S.C.

§ 924(c) is of exceptional, national importance.

Because of the federal Circuits’ misapplication of categorical analysis herein,

the Petitioners remain in prison serving mandatory sentences under 18 U.S.C. §

924(c). After completion of their prison terms, the Petitioners will then serve longer

supervised release terms than would otherwise be imposed because of the § 924(c)

convictions.1

1 Petitioners’ convictions under § 924(c) led to higher supervision terms than

would have been imposed for Hobbs Act robbery. Because 18 U.S.C. § 924(c) carries

a statutory imprisonment maximum of life imprisonment, it is a Class A felony with

a five-year maximum supervised release term. In contrast, Hobbs Act robbery, with

a 20-year imprisonment statutory maximum, is a Class C felony and carries a

three-year maximum supervised release term. See 18 U.S.C. § 1951(a); 18 U.S.C. §

3559(a) (felony classifications); 18 U.S.C. § 3583(b) (authorized terms of supervised

release).

7

Given the vast numbers of defendants’ lives affected by the Circuits’

interpretation of 18 U.S.C. § 924(c), this Court’s intervention is necessary. See Pet.

at 38-39. Petitioners ask this Court to review the Circuit’s misapplication of the

categorical approach to the Hobbs Act robbery statute to ensure compliance with

the Constitution and Supreme Court post-Davis, post-Borden precedent.

Conclusion

Petitioners ask the Court to grant the joint petition for a writ of certiorari.

Dated: October 26, 2021.

Respectfully submitted,

RENE L. VALLADARES

Federal Public Defender

s/ Wendi L. Overmyer

Wendi L. Overmyer

Assistant Federal Public Defender

Office of the Federal Public Defender

411 E. Bonneville, Ste. 250

Las Vegas, Nevada 89101

(702) 388-6577

Wendi_Overmyer@fd.org

s/ Amy B. Cleary

Amy B. Cleary

Assistant Federal Public Defender

Office of the Federal Public Defender

411 E. Bonneville, Ste. 250

Las Vegas, Nevada 89101

(702) 388-6577

Amy_Cleary@fd.org

s/ Aarin E. Kevorkian

Aarin E. Kevorkian

Assistant Federal Public Defender

Office of the Federal Public Defender

411 E. Bonneville, Ste. 250

Las Vegas, Nevada 89101

(702) 388-6577

Aarin_Kevorkian@fd.org

8