Petition for Writ of Certiorari — Leon Curtis Eckford, Petitioner v. United States

No. _____

IN THE

SUPREME COURT OF THE UNITED STATES

__________

LEON ECKFORD,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

__________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

__________

PETITION FOR WRIT OF CERTIORARI

__________

KRISTI A. HUGHES

Law Office of Kristi A. Hughes

P.O. Box 141

Cardiff, California 92007

Telephone: (858) 215-3520

Counsel for Petitioner

QUESTION PRESENTED

Whether the realistic probability test first set forth

in Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007),

applies when comparing a federal predicate statute

to a generic federal crime, as the Ninth Circuit

currently holds, or whether it only applies when

comparing a state predicate statute to a generic

federal crime, as this Court held in United States v.

Taylor, 142 S. Ct. 2015 (2022), and at least seven

other circuits hold?

prefix

TABLE OF CONTENTS

Question Presented........................................................................................................ 1

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

Opinion Below ................................................................................................................ 1

Jurisdiction .................................................................................................................... 1

Statutory Provisions Involved ....................................................................................... 1

Introduction ................................................................................................................... 3

Statement of the Case ................................................................................................... 5

Reasons for Granting the Petition ................................................................................ 9

I.

The Circuits are not uniformly applying the realistic-probability test this

Court established in Duenas-Alvarez. .............................................................. 9

II.

This case presents an ideal vehicle to resolve the issue since the issue is

preserved and would affect the outcome in Petitioner’s case. ....................... 16

Conclusion .................................................................................................................... 18

i

TABLE OF AUTHORITIES

Cases

Borden v. United States, 141 S. Ct. 1817 (2021) ...................................................... 3, 9

Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) ............................................. passim

Johnson v. United States, 559 U.S. 133 (2010) ............................................................ 6

Lopez-Aguilar v. Barr, 921 F.3d 898 (9th Cir. 2019).................................................. 11

Stokeling v. United States, 139 S. Ct. 544 (2019) ...................................................... 10

Taylor v. United States, 495 U.S. 575 (1990) ............................................................... 9

United States v. Arena, 180 F.3d 380 (2d Cir. 1999) ................................................. 17

United States v. Bragg, 44 F.4th 1067 (8th Cir. 2022) .............................................. 13

United States v. Castillo-Rivera, 853 F.3d 218 (5th Cir. 2017) (en banc) ................. 11

United States v. Dominguez, 954 F.3d 1251 (9th Cir. 2020) (“Dominguez I”) .... 6, 7, 8

United States v. Jenkins, 68 F.4th 148 (3d Cir. 2023) ............................................... 14

United States v. Kerstetter, 82 F.4th 437 (5th Cir. 2023) ......................................... 13

United States v. Linehan, 56 F.4th 693 (9th Cir. 2022)............................................. 15

United States v. O’Connor, 874 F.3d 1147 (10th Cir. 2017) ..................................... 17

United States v. Paulk, 46 F.4th 399 (6th Cir. 2022)................................................. 14

United States v. Redd, --- F.4th ----, 2023 WL 6887335 (4th Cir. Oct. 19, 2023) ...... 13

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

United States v. Turner, 47 F.4th 509 (7th Cir. 2022)............................................... 14

United States v. Williams, 80 F.4th 85 (1st Cir. 2023) .............................................. 13

Statutes

18 U.S.C. § 1951 ................................................................................................... 1, 5, 17

18 U.S.C. § 924(c) ................................................................................................. passim

28 U.S.C. § 1254(1) ........................................................................................................ 1

iv

PETITION FOR A WRIT OF CERTIORARI

Petitioner Leon Eckford respectfully prays for a writ of certiorari to review the

judgment of the United States Court of Appeals for the Ninth Circuit.

OPINION BELOW

The opinion of the Court of Appeals is reported at 77 F.4th 1228 (9th Cir. 2023).

See Appendix (“App.”).

JURISDICTION

Petitioner was convicted of violating of 18 U.S.C. §§ 1951 and 924(c)(1)(A), in

the United States District Court for the Central District of California. The United

States Court of Appeals for the Ninth Circuit reviewed his conviction under 28 U.S.C.

§ 1291 and affirmed the judgment. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS INVOLVED

18 U.S.C. § 924(c)

18 U.S.C. § 1951

Section 924(c) of the United States Code provides in relevant part:

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—

...

(ii) if the firearm is brandished, be sentenced to a term of imprisonment

of not less than 7 years.

Section 1951 of the United States Code prohibits Hobbs Act Robbery and

provides:

(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 no 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, of 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.

2

INTRODUCTION

This Petition concerns the “by-now-familiar” yet often hard-to-apply categorial

approach. See Borden v. United States, 141 S. Ct. 1817, 1822 (2021); United States

v. Taylor, 142 S. Ct. 2015, 2032 (2022) (Thomas, J., dissenting) (calling the categorical

approach “difficult to administer”). In Taylor, the Court clarified that when applying

the categorical approach to compare a state prior conviction to a generic federal

crime’s definition, there are “federalism concern[s]” in play so it is appropriate for a

federal court to consult state caselaw to see how the state statute is actually applied.

142 S. Ct. at 2025. But when applying the categorical approach to compare a federal

prior conviction statute to a generic federal crime’s definition, “no such federalism

concern is in play.” Id. Because the question is “whether the elements of one federal

law align with those prescribed in another,” the federal reviewing court can review

the federal predicate statute’s terms and interpret its reach. See id. There is no need

to require defendants to show a “realistic probability,” see Gonzales v. Duenas-

Alvarez, 549 U.S. 183, 193 (2007), that the federal statute would be applied to conduct

that falls outside the federal generic definition. See Taylor, 142 S. Ct. at 2024-26.

And yet, while the majority of the circuits have heeded this Court’s explanation

that the “realistic probability” test doesn’t apply in the context of comparing a federal

predicate’s elements to a federal generic crime’s elements, see id., the Ninth Circuit

has not. It continues to require defendants to point to a case in which a federal statute

was applied in the overbroad way they argue. The Court did so in Petitioner’s own

case, and in others, after Taylor clarified that this was not required.

3

In light of this inconsistent application of the realistic-probability test among

the circuits, the Court should grant the Petition on this important question affecting

thousands of criminal and immigration cases that turn on the correct application of

the categorical approach.

4

STATEMENT OF THE CASE

1.

Petitioner participated in two jewelry store robberies. In the first

robbery, Petitioner and three other men robbed a Ben Bridge jewelry store. Petitioner

was present while two of the men smashed glass display cases filled with Rolex

watches and he then helped remove 14 watches before fleeing the store. In the second

robbery, Petitioner and four other men robbed a Rolex boutique. Petitioner was again

present when another man struck the boutique’s security guard with a handgun,

pointed the handgun at the security guard, and ordered him to the ground. Petitioner

then helped smash the glass display cases filled with Rolex watches, and he and

others took 133 watches before fleeing the store.

2.

Based on his participation in these robberies, Petitioner was charged

with several offenses, including aiding and abetting Hobbs Act robbery, 18 U.S.C.

§§ 2, 1951, and aiding and abetting the use of a gun during a crime of violence, 18

U.S.C. § 924(c)(1)(A)(ii). He pleaded guilty to these counts, noting during his change

of plea hearing that he wished to preserve the issue of whether his robbery conviction

qualified as a crime of violence, and proceeded to sentencing.

The district court acknowledged that Petitioner was “what we call the grabber

in this robbery,” so his “role in the robberies was not as aggravated as the other coconspirators.” He didn’t assault anyone, nor possess or carry “the dangerous weapon.”

Nevertheless, under § 924(c) Petitioner’s participation mandated a seven-year

sentence consecutive to the Hobbs Act robbery sentence because the district court

found that Petitioner’s conviction for aiding and abetting Hobbs Act robbery qualified

5

as a “crime of violence” under § 924(c). Accordingly, the district court imposed a 48month sentence for the robbery conviction, and a consecutive 84-month sentence for

the § 924(c) conviction, for a total of 132 months (or eleven years) in custody.

3.

On appeal, Petitioner argued that aiding and abetting Hobbs Act

robbery did not qualify as a § 924(c) predicate crime of violence mandating a

consecutive seven-year sentence. A § 924(c) crime of violence is a felony that has an

element of “use, attempted use, or threatened use of force,” see § 924(c)(3)(A), but

Hobbs Act robbery didn’t necessarily require any type of force. Instead, it could be

committed by future threats to intangible economic interests, which did not entail the

use of violent physical force against a person like a crime of violence required. See

Johnson v. United States, 559 U.S. 133, 140 (2010).

The Ninth Circuit disagreed. Applying the categorical approach, it reasoned

that the least serious way to commit Hobbs Act robbery required at least an implicit

threat to use violent physical force because it could be committed by placing a victim

in fear of bodily injury. See App. at 9.

It had already held as much in United States v. Dominguez, 954 F.3d 1251 (9th

Cir. 2020) (“Dominguez I”), vacated, 142 S. Ct. 2857 (2022). In that case, the

defendant raised the same argument as Petitioner—that future threats to intangible

economic interests did not require any violent physical force, so Hobbs Act robbery

didn’t qualify as a § 924(c) crime of violence. 954 F.3d 1260. But the Ninth Circuit

refused to consider this argument. “We need not analyze whether the same would be

true if the target were ‘intangible economic interests,’ because Dominguez fails to

6

point to any 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 id. It relied

on this Court’s decision in Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007).

There, the Court held that when applying the categorical approach to determine the

reach of a state statute, a defendant could not rely on “legal imagination” to show the

state statue falls outside the generic definition of a crime in a federal statute. See id.

at 822. Demonstrating that a state statute was broader than the generic definition

required “a realistic probability, not a theoretical possibility” that the state would

apply its statute to conduct outside the generic definition. Id. Applying this “realistic

probability” test from Duenas-Alvarez, the Ninth Circuit in Dominguez I concluded

that the defendant had failed to point to cases in which courts had applied Hobbs Act

robbery to non-violent conduct in the way he had argued, so he could not show that

the Hobbs Act robbery statute was broader than § 924(c)’s crime of violence definition.

954 F.3d at 1260-61.

Arguing that Dominguez I’s reasoning no longer applied, Petitioner disputed

that Duenas-Alvarez applied in his case. He pointed out that in Taylor, this Court

had explicitly rejected the government’s attempt to rely on the Duenas-Alvarez

realistic-probability test to argue the defendant needed show how the statute was

usually prosecuted in order to demonstrate that it didn’t fit the generic definition of

a crime. 142 S. Ct. at 2024. The Court rejected the government’s argument because

Duenas-Alvarez didn’t apply to the defendant’s circumstances. Id. at 2025. Most

importantly, there were no federalism concerns at play because the Court was

7

analyzing “only whether the elements of one federal law align with those prescribed

in another.” Id. In these circumstances, the categorical approach did not “mandate an

empirical inquiry into how crimes are usually committed, let alone impose a burden

on the defendant to present proof about the government’s own prosecutorial habits.”

Id.

Relying on Taylor’s distinction between analyzing state statutes and federal

statutes under the categorical approach, Petitioner argued that the Ninth Circuit’s

reasoning in Dominguez I—applying Duenas-Alvarez’s realistic-probability test to

analyze the reach of the federal Hobbs Act robbery statute—was incompatible with

Taylor. See App. at 11. But while the Ninth Circuit acknowledged Taylor’s

explanation that the Duenas-Alvarez realistic-probability test only applied when

comparing a statute statute’s elements to the elements of a generic federal crime, it

still embraced the reasoning of Dominguez I. App. at 12. It “would still find that

Dominguez I’s citation to the realistic-probability test does not render its analysis of

completed Hobbs Act robbery clearly irreconcilable with Taylor.” Id.

This was because in Dominguez I the court had “cited Duenas-Alvarez to

emphasize that there was 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.”

App. at 13 (citing Dominguez I, 954 F.3d at 1260). Finding that reasoning still

applied, the court reasoned that Petitioner’s argument about “hypothetical” future

threats to intangible property did not demonstrate that Hobbs Act robbery was

broader than the generic crime of violence definition in § 924(c) because the

8

government would not undertake a Hobbs Act robbery prosecution for the threats to

intangible property that Petitioner posited. App. at 14-15. Accordingly, the Ninth

Circuit affirmed Petitioner’s § 924(c) conviction and its mandatory seven-year

consecutive sentence. App. at 18.

REASONS FOR GRANTING THE PETITION

I.

The Circuits are not uniformly applying the realistic-probability test this

Court established in Duenas-Alvarez.

As this Court well knows, the categorical approach governs how a court

analyzes the elements of a predicate statute to determine whether its elements match

the elements of a generic offense listed in a federal immigration or criminal statute.

See, e.g., Taylor v. United States, 495 U.S. 575, 588 (1990); see also Borden, 141 S.

Ct. at 1822 (explaining that the categorical approach’s focus is “on whether the

elements of the statute of conviction meet the federal standard”). In general, under

the categorical approach when the elements of the predicate statute do not match

those of the federal generic crime, the predicate crime cannot be used to trigger any

consequences listed in the federal statute. See Borden, 141 S. Ct. at 1822.

And as the Court also knows, when applying the categorical approach, the

focus is on the least culpable of the acts criminalized by the predicate statute. See id.

If any of those criminalized acts do not meet the standard required by the federal

statute’s elements, “the statute of conviction does not categorically match the federal

statute,” and cannot serve as a predicate conviction. See id.

9

In the criminal context, defendants arguing that their predicate convictions

don’t satisfy the generic definition of a crime listed in a federal statute point to cases

demonstrating that the statute was applied in a way that does not satisfy the generic

federal definition. See, e.g., Stokeling v. United States, 139 S. Ct. 544, 555 (2019)

(surveying Florida robbery prosecutions to determine whether Florida requires same

degree of “force” necessary for an ACCA robbery predicate). And sometimes

defendants argue that their predicate convictions don’t satisfy the federal generic

crime’s definitions by arguing that the language in the predicate statute simply

allows for prosecutions that don’t satisfy the federal generic crime. See, e.g., Taylor,

142 S. Ct. at 2020 (comparing elements of predicate statute of conviction to the

elements of federal statute, and determining that the mismatch “is enough to resolve

this case”).

Years ago, in Duenas-Alvarez, the Court explained that when a defendant

argues that his statute of conviction does not qualify as a predicate conviction, he

cannot make his point by relying on “the application of legal imagination to a state

statute’s language.” 549 U.S. at 822. Instead, showing that the state statute of

conviction “creates a crime outside the generic definition of a listed crime in a federal

statute” requires a different showing. See id. “It requires a realistic probability, not a

theoretical possibility, that the State would apply its statute to conduct that falls

outside the generic definition of a crime.” Id. To make that showing, the Court

explained, a defendant could show that the statute was applied in an overbroad way

10

in his own case, or he can point to “other cases in which the state courts in fact did

apply the statute in the special (nongeneric) manner for which he argues.” Id.

Many lower courts relied on this realistic-probability test for years when

applying the categorical approach, See, e.g., Lopez-Aguilar v. Barr, 921 F.3d 898, 90304 (9th Cir. 2019) (analyzing whether Oregon robbery statute criminalized “theft by

deception,” which would not qualify as generic theft, and holding that there was no

categorical match because “there is no realistic probability that Oregon would

prosecute such conduct under the statute.”); United States v. Castillo-Rivera, 853

F.3d 218, 222 (5th Cir. 2017) (en banc) (analyzing whether state felon-in-possession

statute was a categorical match with federal felon-in-possession statute, and holding

that defendant needed to point to a Texas case where someone was prosecuted in a

manner that did not match elements of federal offense).

Last term, the Court clarified that the Duenas-Alvarez realistic-probability

test only applies in specific circumstances. In Taylor, the defendant argued that his

attempted Hobbs Act robbery conviction was not a categorical match for the federal

generic offense of a “crime of violence,” which required using, attempting to use, or

threatening to use force. See 142 S. Ct. at 2023-24. The government didn’t look to the

elements of Hobbs Act robbery for a categorical analysis, id. at 2024, and instead

“fault[ed] Mr. Taylor for failing to identify a single case in which it has prosecuted

someone for attempted Hobbs Act robbery without proving a communicated threat.”

Id. at 2024.

11

But the Court rejected the government’s attempts to fault the defendant. Not

only did it point out the “oddity of placing a burden on the defendant to present

empirical evidence about the government’s own prosecutorial habits,” and the

“practical challenges such a burden would present in a world where” most defendants

plead and not all cases make it onto Lexis or Westlaw. See id. at 2024. But the Court

also explained that Duenas-Alvarez’s realistic-probability test didn’t even apply to

the defendant’s case in the first place.

This was because in Duenas-Alvarez, the “immigration statute at issue …

required a federal court to make a judgment about the meaning of a state statute,”

whereas in Taylor, “no such federalism concern [was] in play.” See id. at 2025.

Further, “in Duenas-Alvarez the elements of the relevant state and federal offenses

clearly overlapped;” the only question was whether “the state courts also applied the

statute in a special (nongeneric) manner.” Id. (cleaned up). By contrast, in Taylor

there was no overlap between the two statutes because the Hobbs Act robbery statute

did not require proof of any of the elements required by § 924(c). See id.

The Court explained that Congress did not condition the long prison sentences

in § 924(c) on mandating “an empirical inquiry into how crimes are usually

committed, let alone impose a burden on the defendant to present proof about the

government’s own prosecutorial habits.” See id. Instead, reviewing courts had a much

more straightforward job: to look at the elements of the underlying crime and ask

whether they matched the elements of the generic federal offense. See id.

12

Since Taylor’s explanation of the proper application of Duenas-Alvarez’s

realistic-probability test, most of the circuits have recognized that the test doesn’t

apply when comparing a federal predicate statute to a federal generic crime’s

definition. For instance, recently the Fifth Circuit distinguished between state and

federal predicate statutes. See United States v. Kerstetter, 82 F.4th 437, 441 (5th Cir.

2023). It stated that in Taylor the Court only “compared two federal statutes and

analyzed whether the elements of one aligned with the elements of the other.” Id.

Taylor didn’t affect “how to compare a state statute of conviction with a federal

enhancement,” the court held. See id. Similarly, the Eighth Circuit also explicitly

acknowledged that, after Taylor, Duenas-Alvarez’s reasonable-probability test

applies only when comparing a state statute’s elements to a generic federal crime,

but does not apply when comparing a predicate federal statute’s elements. See United

States v. Bragg, 44 F.4th 1067, 1076 (8th Cir. 2022) (holding that Taylor did not

overrule circuit precedent applying the reasonable-probability test when determining

whether state statutes were a categorical match to a federal statute).

After Taylor, other circuits, too, have similarly limited the application of the

reasonable-probability test to the context of comparing state predicate statutes to

generic federal crimes. See, e.g., United States v. Redd, --- F.4th ----, 2023 WL

6887335 (4th Cir. Oct. 19, 2023) (holding that realistic-probability test applies when

defendant argues a state statute falls outside of ACCA’s generic definition of a violent

felony, if the state statute’s language does not plainly cover the conduct defendant

alleges); United States v. Williams, 80 F.4th 85, 100 n.11 (1st Cir. 2023) (relying on

13

Duenas-Alvarez to note that in the context of arguing that a state statute is broader

than the generic crime, a defendant must point to a case in which the statute was

applied in the overbroad manner); United States v. Jenkins, 68 F.4th 148, 154-55 (3d

Cir. 2023) (acknowledging that Duenas-Alvarez realistic-probability test would apply

to defendant’s argument that state statute was broader than federal crime if elements

of state statute matched federal crime); United States v. Turner, 47 F.4th 509, 52223 (7th Cir. 2022) (relying on Duenas-Alvarez to find that defendant arguing state

statute is broader than ACCA’s generic crime definition must show it is actually

possible to violate the state statute in the way he argues); United States v. Paulk, 46

F.4th 399 (6th Cir. 2022) (applying realistic-probability test to defendant’s argument

that his predicate state statute could be violated without any mens rea, in contrast

to generic federal crime).

The Ninth Circuit, however, even after Taylor, continues to apply Duenas-

Alvarez’s realistic-probability test to federal predicate statutes. Even though there

are no federalism concerns present because the court is determining whether a

federal statute matches a federal generic crime, the Ninth Circuit continues to

enforce the realistic-probability requirement. In Petitioner’s own case, the court

relied on reasoning in prior circuit caselaw that “there was 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.’” App. at 13 (citing Dominguez I, 954 F.3d at 1260).

Though Petitioner argued that Duenas-Alvarez didn’t apply, and that Taylor had

overruled Duenas-Alvarez in the context of analyzing federal predicate statutes, the

14

Ninth Circuit disagreed. Id. (stating that “Taylor did not overrule Duenas-Alvarez”

and that prior caselaw relying on realistic-probability test to analyze federal statute

was not irreconcilable with Taylor’s analysis). While it noted there was “some appeal”

to Petitioner’s argument that the federal statute’s plain terms established that it

didn’t require the use of physical force, the court didn’t believe Hobbs Act robbery

would be prosecuted in the way Petitioner proffered. Id. at 14-15 (disagreeing that

Petitioner’s “hypothetical” would be prosecuted under Hobbs Act robbery statute). In

other words, Petitioner hadn’t cited a case in which Hobbs Act robbery was prosecuted

in the overbroad manner he argued, so the court ignored his “hypothetical” argument

about the statute’s reach.

Similarly, in United States v. Linehan, the question was whether a federal

statute punishing transporting an explosive device had a use-of-force element

required by the federal crime of solicitation to commit a crime of violence. See 56

F.4th 693, 698-99 (9th Cir. 2022). After analyzing the elements of the transportation

offense, the Ninth Circuit applied Duenas-Alvarez to the defendant’s argument that

the predicate transportation offense could be completed without the attempted use of

force required for a federal crime of violence. Id. at 704. It concluded that “‘legal

imagination’ cannot carry the day,” and faulted the defendant for presenting “obscure

hypotheticals” rather than pointing to an actual case. Id.

In another circuit that doesn’t apply Duenas-Alvarez to federal predicate

statutes, Petitioner’s case and Linehan would have likely had a different outcome.

The courts of appeals would not have relied on the realistic-probability test to analyze

15

Petitioner’s claim, and instead compared the elements of Hobbs Act robbery to the

elements of a generic crime of violence.

Defendants in the Ninth Circuit will have their cases decided—and sometimes

face substantial additional time in custody as a result—because they could not satisfy

the burden to “present empirical evidence about the government’s own prosecutorial

habits.” See Taylor, 142 S. Ct. at 2024. In other circuits, however, a defendant can

rely on the federal statute’s plain terms and argue that they don’t match the generic

federal crime’s elements.

The inconsistency with which the lower courts are applying Duenas-Alvarez’s

realistic-probability test, in the wake of Taylor’s explanation that it only applies when

comparing state predicate crimes to a generic federal crime, is an important issue

this Court should address by granting the Petition. Whether an immigrant is

deported because of a prior conviction, or whether a defendant faces a lengthy

mandatory-minimum sentence because of a prior conviction, should not turn on his

circuit of prosecution. The uniform application of the categorial approach is an

important question, with serious consequences, that affects thousands of people in

the court system and across the circuits. The Court should ensure it is applied

uniformly.

II.

This case presents an ideal vehicle to resolve the issue since the issue is

preserved and would affect the outcome in Petitioner’s case.

Petitioner’s case presents an ideal vehicle to address the inconsistent

application of the Duenas-Alvarez realistic-probability test. The issue was preserved

16

and ruled on by the Ninth Circuit, with the court explicitly disagreeing with

Petitioner’s argument that the test didn’t apply in his case. App. at 12-14. The court

relied on circuit caselaw applying the realistic-probability test to Hobbs Act robbery,

and found that caselaw still binding after Taylor and dispositive in Petitioner’s case.

App. at 13-15.

Additionally, correctly applying Taylor’s holding in Petitioner’s case, to bar

application of the realistic-probability test, would result in a different outcome. As

other circuits have acknowledged, by its plain terms the Hobbs Act robbery statute

“criminalizes a threat of ‘injury, immediate or future, to [one’s] person or property.”

See United States v. O’Connor, 874 F.3d 1147, 1154, 1158 (10th Cir. 2017). And under

the Hobbs Act, “property” is “not limited to tangible things, but includes intangible

assets,” like the right to conduct a lawful business and solicit customers. See United

States v. Arena, 180 F.3d 380, 392 (2d Cir. 1999), abrogated on other grounds by

Scheidler v. Nat’l Org. for Women, Inc., 537 U.S. 393 (2003). Because placing someone

in fear of future injury to an intangible economic interest does not require the use,

attempted use, or threatened use of a §924(c) crime of violence, the plain terms of

§1951(b)(1) establish that the elements of Hobbs Act robbery don’t match the

elements of a §924(c) crime of violence. “That ends the inquiry, and nothing in

Duenas-Alvarez suggests otherwise.” See Taylor, 142 S. Ct. at 2025.

17