Third Circuit, Joining Every Other Circuit That’s Addressed the Issue, Holds Hobbs Act Robbery Does Not Qualify as ‘Crime of Violence’
by David M. Reutter
In a precedential ruling, the U.S. Court of Appeals for the Third Circuit held that Hobbs Act robbery does not qualify as a “crime of violence” under the career-offender sentence enhancement in U.S. Sentencing Guidelines (“U.S.S.G.”), § 4B1.2(a).
The Court’s opinion was issued in an appeal brought by Eric Scott. He was sentenced in February 2020 for possessing a firearm as a convicted felon. A presentence report (“PSR”) included a career offender enhancement under U.S.S.G. § 2K2.1(a)(2), which applies if a defendant “committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance.”
The enhancement was based on two prior convictions: a 2019 conviction for possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) and a 2019 conviction for Hobbs Act robbery in violation of 18 U.S.C. 1951(b)(1) and for using and carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). The PSR assigned an enhanced base offense level of 24 that carried an advisory Guidelines range of 84-105 months in prison.
At sentencing, Scott sought an 84-month sentence to run concurrent with a previously imposed 70-month sentence. The Government sought consecutive sentences. The U.S. District Court for the Eastern District of Pennsylvania adopted the PSR’s conclusion and sentenced Scott to 90 months in prison consecutive to the existing sentence, three years supervised release, and a $100 special assessment.
Scott appealed and argued that it was reversible error to sentence him as a career offender because Hobbs Act robbery is not a “crime of violence,” as defined by the Guidelines. The Third Circuit applied the “now-familiar categorical approach” to analyze the issue.
Under the categorical approach, courts look “not to the facts of the particular prior case,” but to the statutory definition of the crime of conviction. Moncrieffe v. Holder, 569 U.S. 184 (2013). The Court explained that this requires it to compare the scope of the conduct covered by the elements of Hobbs Act robbery with the definitions of “crime of violence” contained in Guidelines to determine “if the statute’s elements are the same as, or narrower than, those of the generic offense.” United States v. Dahl, 833 F.3d 345 (3d Cir. 2016).
If the “least culpable conduct hypothetically necessary to sustain a conviction” under the statute in question doesn’t qualify as a crime of violence under the Guidelines, then any “conviction under that law cannot count” as a crime of violence predicate. Descamps v. United States, 570 U.S. 254 (2013). Under the categorical approach, “a prior crime [will] qualify as a predicate offense in all cases or in none.” Id.
The Court noted that the Guidelines plainly define a “crime of violence” as the use of force or threats of force only against persons. U.S.S.G. § 4B1.2(a). Hobbs Act robbery, on the other hand, means “the unlawful taking from the person of another . . . by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property.” § 1951(b)(1). The Government conceded the elements are not a categorical match because the Elements Clause of the Guidelines restricts the object of the use of force to “the person of another,” but a Hobbs Act robbery extends the use of force against the “person or property” of another. Thus, the Court had no difficulty concluding that Hobbes Act robbery isn’t a crime of violence for purposes of the career-offender sentence enhancement under § 4B1.2(a).
In reaching that conclusion, the Court observed that it joins its sister circuits that addressed the issue and came to the same conclusion. See United States v. Prigan, 8 F.4th 1115 (9th Cir. 2021); United States v. Green, 996 F.3d 176 (4th Cir. 2021); Bridges v. United States, 991 F.3d 793 (7th Cir. 2021); United States v. Eason, 953 F.3d 1184 (11th Cir. 2020); United States v. Camp, 903 F.3d 594 (6th Cir. 2018); United States v. O’Connor, 874 F.3d 1147 (10th Cir. 2017).
Accordingly, the Court vacated Scott’s sentence and remanded for resentencing. See: United States v. Scott, 14 F.4th 190 (3d Cir. 2021).
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