The Supreme Court of the United States (SCOTUS) held on June 21, 2022, that an attempted Hobbs Act robbery was not categorically a crime of violence to support a separate conviction for use of a firearm under federal law, despite the fact that someone was shot and killed during the offense. It was yet another in the Court`s line of decisions that have narrowed which offenses qualify under the harsh federal gun laws relating to current and past crimes of violence.
This case happened almost 20 years ago, when Taylor and a codefendant attempted to rob a drug dealer. The dealer fought back and the codefendant shot and killed the dealer. Taylor agreed to plead guilty to attempted Hobbs Act robbery and discharge of a firearm during a crime of violence. At the time, use of a firearm during a crime of violence under 18 U.S.C. sec 924(c) broadly included an offense that “involves a substantial risk that physical force against the person or property of another may be used.” sec 924(c)(3)(B). Even if Taylor`s attempted robbery didn`t involve force, the risk of force was enough to negate any challenge to the sec 924(c) charge. He was sentenced to 30 years in prison, 20 for the robbery (the statutory maximum) and 10 for the firearm. His appeal was barred by a waiver in his plea agreement.
When SCOTUS struck down the residual clause of the Armed Career Criminal Act (ACCA) as unconstitutional in Johnson v. United States, 576 U.S. 591 (2015), the Fourth Circuit granted Taylor permission to file a second of successive (SOS) motion under 28 U.S.C. sec 2255 to challenge his sec 924(c) conviction. The Supreme Court then extended Johnson to the residual clause in sec 924(c), in United States v. Davis, 139 S. Ct. 2319 (2019), but the district court denied Taylor`s motion. The court held that an attempted Hobbs Act robbery still qualified under the elements or “force” clause of sec 924(c). The Fourth Circuit, however, disagreed and vacated Taylor`s sec 924(c) conviction, and SCOTUS agreed to hear the government`s appeal.
A Mismatch of the Elements
In order for a predicate offense, such as Taylor`s attempted Hobbs Act robbery, to qualify as a crime of violence to support a sec 924(c) conviction, the offense must have “as an element, the use, attempted use, or threatened use of physical force against the person or property of another.” sec 924(c)(3)(A).
A completed Hobbs Act robbery requires the government to prove beyond a reasonable doubt that a defendant engaged in the “unlawful taking or obtaining of personal property from the person … of another, against his will, by means of actual or threatened force.” 18 U.S.C. sec 1951(b). However, attempted Hobbs Act robbery only requires two things: (1) that the defendant intended to take property by force, and (2) that he took a “substantial step” toward that. The parties agreed, and the Court accepted in Taylor`s case, that a substantial step means an “unequivocal step” but it “need not be violent.”
SCOTUS said that while the government must show an intention to use force to take property to prove an attempted Hobbs Act robbery, “an intention is just that, no more.” It also found that a substantial step did not require the actual use of force, and that the Model Penal Code`s definition of robbery aligned with this finding.
The government pressed two arguments in an effort to fit attempted Hobbs Act robbery under the elements clause. First, it offered an argument that it had successfully used to convince several other circuits to include attempted Hobbs Act robbery within the elements clause of sec 924(c). It said that since completed Hobbs Act robbery, then an attempt also qualifies. The district court said as much when it denied Taylor`s motion. SCOTUS rejected this because the elements clause “asks whether the defendant did commit a crime of violence,” not whether there was an attempt to do so. Congress could have included attempted crimes of violence in the elements clause if it wanted to, the Court explained.
The government`s second argument got more attention but still failed. It argued that taking a substantial step toward completing Hobbs Act robbery amounted to a “threatened use of force.” The Court cited five sources defining “threat” and found it requires some form of communication. The government`s definition, the Court said, “would vastly expand the statute`s reach” by including threats without communication, such as an incomplete offense like attempted Hobbs Act robbery. The Court warned that expanding the elements clause this far “would only wind up effectively replicating the work formerly performed by the residual clause … and perhaps inviting similar constitutional questions along the way.”
The Elements Matter, Not the Conduct
Whether Taylor`s attempted Hobbs Act robbery could support a sec 924(c) conviction had nothing to do with his conduct in the offense. The Supreme Court applied the “categorical approach” in Davis to analyze predicate offenses under sec 924(c), and reaffirmed here that this approach still applied. A court may not look at the defendant`s conduct under the categorical approach, only the elements of the offense in question, the Court held in that case.
To separate Taylor`s offense conduct from the analysis, the Court presented a hypothetical case of an unfortunate bank robber who wrote a threatening note and laid out his plans, only to be arrested before he could complete the robbery. He would be guilty of attempted robbery, even though he never attempted to communicate a threat, since the note was never delivered. “He never even got to the point of threatening the use of force against anyone or anything,” the Court said. But under the categorical approach, “no element of attempted Hobbs Act robbery requires proof that the defendant used, attempted to use, or threatened to use force,” the Court concluded.
A Defendant Need Not Prove How the Government Prosecutes Similar Crimes
The government faulted Taylor for not providing any cases in which the government had prosecuted someone for an attempted Hobbs Act robbery without a communicated threat, but SCOTUS said it didn`t matter.
The government`s theory cannot be squared with the statute`s terms. To determine whether a federal felony qualifies as a crime of violence, sec 924(c)(3)(A) doesn`t ask whether the crime is sometimes or even usually associated with communicated threats of force (or, for that matter, with he actual or attempted use of force). It asks whether the government must prove, as an element of its case, the use, attempted use, or threatened use of force.
The Court pointed out that this is a “world where most cases end in plea agreements,” and the particulars of what the government proved in a case would not be “easily accessible” to defendants. The government`s proposed rule that defendants must prove how the government prosecutes similar offenses is too much a of “burden,” the Court said.
Accordingly, SCOTUS upheld the Fourth Circuit`s decision vacating Taylor`s sec 924(c) conviction based on an attempted Hobbs Act robbery conviction. See: United States v. Taylor, No. 20-1459 (S. Ct. June 21, 2022).
The Big Question seems to be whether Taylor will open the door for relief under § 2255 for § 924(c) convictions based on attempted Hobbs Act robbery. Yes, Taylor was granted relief under § 2255, but his motion was based on Johnson and Davis.
Dale Chappell is the author of hundreds of published articles on the federal criminal justice system, and the Insider`s Guide series of federal post-conviction books. He is a federal litigation consultant with the Zoukis Consulting Group. Follow his blog at www.zenlawguy.com and on Twitter at @zenlawguy.