Hobbs Act Robbery is Never a `Crime of Violence` for Federal Sentencing Enhancement Purposes

Finding that Hobbs Act robbery is never a “crime of violence” under the U.S. Sentencing Guidelines (USSG), the U.S. Court of Appeals for the Ninth Circuit held on August 16, 2021, that an enhanced sentence based on a prior Hobbs Act robbery conviction wasn`t harmless and remanded for resentencing.

Steven Prigan was convicted of being a person prohibited from possessing a firearm, which was also unregistered, in violation of 18 U.S.C. sec 922(g) and 26 U.S.C. sec 5841. He was sentenced to five years and four months in federal prison, which was enhanced because of his prior Hobbs Act robbery conviction under 18 U.S.C. sec 1951. Without that enhancement, he faced around four years in prison. When Prigan challenged the enhancement, the district court found that Hobbs Act robbery was a crime of violence and applied the enhancement.

Hobbs Act Robbery is Categorically Not a Crime of Violence Under the Guidelines

Prigan raised his properly-preserved sentencing claim on appeal, and the Ninth Circuit agreed that Hobbs Act robbery could not be a crime of violence for USSG purposes. Reviewing whether Prigan`s prior conviction was a crime of violence under the Guidelines, the Court did so de novo, or without consideration of the district court`s findings. Applying the “categorical approach,” See Descamps v. United States, 570 U.S. 254 (2013), the court analyzed the elements of Hobbs Act robbery, and not Prigan`s conduct during the prior offense.

Federal Hobbs Act robbery has the following elements:

[1] The unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, [2] 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. (emphasis supplied)

The Court then compared the elements of the enhancement applied to Prigan, under USSG sec 2K2.1(a)(3), which provided for an enhanced sentence if there`s a prior conviction for a crime of violence. That is defined under USSG sec 4B1.2(a) as:

(1) has an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use of unlawful possession of a firearm described in 26 U.S. 5845(a) or explosive material as defined in 18 U.S.C> sec 814(c).

There were actually three different provisions Prigan`s prior could qualify under in this definition: (1) the “force” clause, (2) the enumerated offense of robbery, or (3) the enumerated offense of extortion. The Court took each provision in turn and found that Hobbs Act robbery fit none of these provisions.

Hobbs Act Robbery is Too Broad to Fit the Force Clause

This first provision, called the “force” clause, requires that the use of force be “against the person of another.” However, Hobbs Act robbery goes further, by allowing a conviction for use of force against someone`s property.

Hobbs Act robbery covers using force or threatening to use force against a person or property, but sec 4B1.2(a)`s force clause does not extend to force or threats of force against property. Because Hobbs Act robbery sweeps more broadly that sec 4B1.2(a)`s force clause, Hobbs Act robbery is not a categorical match for sec 4B1.2(a)`s force clause.

Hobbs Act Robbery is Too Broad to Fit Generic Federal Robbery

The second provision actually lists robbery under USSG sec 4B1.2(a), but Hobbs Act robbery is not the “robbery” contemplated there. Instead, generic federal robbery is defined as “aggravated larceny, containing at least the elements of misappropriation of property under circumstances involving immediate danger to the person.” Once again, Hobbs Act robbery goes too far by including harm to property in addition to people.

Although Hobbs Act robbery covers threatening to use force against a person or property, generic federal robbery does not cover threats of force against property. Because Hobbs Act robbery sweeps more broadly than generic federal robbery, Hobbs Act robbery is not categorically “robbery” under sec 4B.2(a)`s enumerated-offenses clause.

Hobbs Act Robbery is Too Broad to Match Generic Extortion

The third provision is the enumerated offense of extortion. If Hobbs Act robbery could match generic federal extortion, then it could qualify as a crime of violence under USSG sec 4B1.2(a). Generic federal extortion is defined as “obtaining something of value from another by the wrongful use of (A) force, (B) fear of physical injury, or (C) threat of physical injury.” United States v. Bankston, 901 F.3d 1110 (9th Cir. 2018). And again, Hobbs Act robbery goes too far by including harm to property as well as people.

Hobbs Act robbery covers threatening to use force against persons or property, but the Guidelines` definition of extortion does not extend to threats of force against property. Because Hobbs Act robbery sweeps more broadly than extortion under sec 4B1.2(a)`s enumerated-offenses clause, Hobbs Act robbery is not categorically extortion under sec 4B1.2(a)`s enumerated-offense clause.

The Enhancement was Not a “Harmless Error”

An error calculating a Guidelines range is reviewed for harmless error. But the Ninth Circuit has held that an error calculating a Guidelines range “is a significant procedural error that requires us to remand for resentencing.” United states v. McCarns, 900 F.3d 1141 (9th Cir. 2018). For such an error to be harmless, the district court must explain its reason for the extent of the variance. Here, the variance was 11 to 21 months. The district court failed to provide any reasoning for its upward variance in Prigan`s case.

[T]he district court rooted its sixty-four-month sentence squarely in the incorrect Guidelines range of fifty-seven to seventy-one months, expressly stating it “believe[d] that a guideline sentence is appropriate.” Nothing in the record demonstrates that the district court would have varied upward and imposed a sixty-four-month sentence is Prigan`s correct Guidelines range of forty-six to fifty-seven months of imprisonment was kept in mind throughout the process.

The Court therefore vacated Prigan`s sentence and remanded with instructions for the district court to conduct a new sentencing hearing without consideration of his prior Hobbs Act robbery conviction. See United States v. Prigan, 2021 U.S. App. LEXIS 24330 (9th Cir. Aug. 16, 2021).

Federal Drug Conspiracy Involving Both Crack and Other Drugs Still Eligible for First Step Act Relief

A single federal drug offense involving both powder and crack cocaine is eligible for a reduced sentence under the First Step Act`s retroactive application of the Fair Sentencing Act of 2010 (FSA), even if the offense included a non-qualifying drug, the U.S. Court of Appeals for the Second Circuit held on August 4, 2021. The decision puts the circuit in line with every other circuit to have addressed the issue, and reverses its prior unpublished case to the contrary.

This appeal affected nine defendants but focused on Martell Jordan, who was convicted by a jury in 2008 of a dual-object conspiracy to distribute 5 kilograms or more of powder cocaine and 50 grams or more of cocaine base (“crack”), under 21 U.S.C. sec 841(b)(1)(A) and (b)(1)(B), among other drug and firearm offenses. Jordan faced a minimum of 240 months and up to 293 months under the advisory Guidelines, with the sentencing court sentencing him to 30 years in prison. That sentence was later reduced to 254 months under Amendment 782`s retroactive changes to the drug sentencing table.

In December 2018, Congress enacted the First Step Act which, among other things, applied the FSA retroactively to people with crack offenses sentenced prior to the FSA. The FSA increased the amount of crack needed to trigger higher statutory penalties, but it didn`t apply retroactively to those sentenced before it was enacted. After the First Step Act changed this, Jordan filed a motion for relief based on the FSA`s changes, but the district court concluded it lacked the authority to grant relief because Jordan`s single offense included both powder (a non-qualifying drug) and crack (a qualifying drug).

On appeal, the Second Circuit acknowledged several other circuits had since held that a single offense involving both powder and crack cocaine was eligible for a reduced sentence under the First Step Act. The government also conceded as much. In a 30-page opinion, the Court took a moment to explain why this was the correct reading of the First Step Act.

A Multi-Object Drug Conspiracy is a “Covered Offense”

Under section 404 of the First Step Act, a sentencing court may reduce a sentence for a “covered offense” as if the FSA “were in effect at the time the covered offense was committed.” A covered offense is defined as a “violation of a federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the [FSA].” As the Supreme Court recently concluded in Terry v. United States, 141 S. Ct. 1858 (2021), the FSA changed the statutory penalties for crack offenses under secs 841(b)(1)(A) and (b)(1)(B). Thus, any offense involving crack under those two subparagraphs would be a “covered offense.”

The Second Circuit said that Terry applied to Jordan`s case:

An application of Terry`s approach here supports the conclusion that Jordan`s multi-object conspiracy offense (involving 50 grams or more of crack cocaine) is a “covered offense” under Section 404 because the statutory penalty associated with the drug-quantity element of the crack cocaine object under 21 U.S.C. sec 846 was undoubtedly modified by Section 2 of the [FSA]. To explain, Jordan`s conviction on the conspiracy count, as it related to the crack-cocaine conspiracy object, included (as delineated in the superseding indictment) a violation of 21 U.S.C. secs 846, 841(a)(1), and 841(b)(1)(A) — the last of which provides the statutory penalties for his violation under 21 U.S.C. sec 846 — given the jury`s finding that the conspiracy involved at least 50 grams of crack cocaine.

In other words, the fact that Jordan`s offense also involved powder cocaine, whose statutory penalties were not modified by the FSA, did not preclude him from being eligible for First Step Act relief.

Relief was Available

Had Jordan been sentenced to the 20-year mandatory minimum for the offense, he would not have been eligible for First Step Act relief because there would have been no relief for the district court to give. But because his sentence was above the minimum — albeit by only 14 months — the district court still had the ability to reduce Jordan`s sentence. This fact also made Jordan`s multi-object conspiracy offense with both powder and crack “eligible” under the First Step Act.

The Court`s Earlier Decision on Multi-Object Conspiracies was Wrong

The Court conceded that its earlier decision in United States v. Lott, 830 Fed. Appx. 365 (2d Cir. 2020), was “incorrectly decided.” In that unpublished decision, the court had held in a case similar to Jordan`s that the addition of the powder cocaine took the single, dual-object conspiracy offense outside of First Step Act relief.

Lott was a pro se appeal, unlike Jordan`s counseled appeal, which garnered barely a four-page opinion from the court. There was no analysis, and one of the judges on the panel, Judge Gerald Lynch, was also on Jordan`s panel and conceded in his concurring opinion that Lott was wrongly decided: I am now persuaded that the majority`s more generous interpretation of the First Step Act [in this case] is ultimately the better reading of the statute, and I concur.

IN CONCLUSION, the Second Circuit held that a multi-object conspiracy offense based in part on crack cocaine, falling under secs 841(b)(1)(A) or (b)(1)(B), was a covered offense to render the offense eligible for relief under the FSA.

Accordingly, the Court vacated the denial of Jordan`s First Step Act motion and remanded with instructions for the district court to consider all of jordan`s crack offenses for relief under the First Step Act. See: United States v. Jordan, 2021 U.S. App. LEXIS 23026 (2d Cir. Aug. 4, 2021).

Attacking the Guilty Plea: The Art of Withdrawing a Guilty Plea

The art of withdrawing a guilty plea comes down to which phase of the criminal proceeding you`re in when the motion to withdraw is filed. Each phase requires meeting a different standard in order to withdraw a guilty plea. These phases are:

(1) Prior to it being accepted by the court,
(2) After acceptance but before sentencing, and
(3) Any point after sentencing.

The rule for everything relating to a guilty plea, from entering one to withdrawing one, is found in Federal Rule of Criminal Procedure 11.

Research Alert: Withdrawal of a guilty plea was previously governed by Criminal Rule 32(e), but this was moved to Rule 11 in 2002. Your research prior to 2002 will likely cite Rule 32(e) instead of Rule 11, so check the dates of the cases you`re relying on. This is true even for current cases that still erroneously rely on cases prior to 2002. Even judges don`t always get it right. State prisoners will often find that state laws and rules closely track federal rules and laws when it comes to handling guilty pleas.

Phase 1: Before a Guilty Plea is Accepted

The easiest phase to withdraw a guilty plea is before it is accepted by the court. Under Rule 11(d)(1), a guilty plea may be withdrawn before a court accepts it “for any reason of no reason.” Courts have consistently ruled that you have a “right” to withdraw your guilty plea at this point, and “the court lacks authority to deny” your withdrawal. See United States v. Feliz, 2019 U.S. Dist. LEXIS 207814 (D.N.J. 2019).

Research Alert: Caselaw prior to the amendments to Rule 11 in 2002 will say there`s not absolute right to withdraw a guilty plea before it`s accepted. That used to be true under the old rule, but the amendments expressly changed that to fix a split among the circuits on the issue.

When is a guilty plea actually “accepted” by a court? There aren`t any magic words the court must use to mark a guilty plea as accepted. What matters, courts say, is the context of the language used by the court in accepting the plea. Even where a court provisionally or conditionally accepts a guilty plea, it is usually considered “accepted” under Rule 11.

Courts will often conditionally accept a guilty plea pending review of the presentence report (PSR) or the plea agreement. As long as the court follows Rule 11 in accepting a guilty plea, it`s considered “accepted,” the Supreme Court said in United States v. Hyde, 520 U.S. 670 (1997).

A guilty plea, however, does not live or die with the plea agreement, and a plea agreement can be rejected by the court while the guilty plea stands. In Hyde, the Supreme Court recognized that a plea agreement usually isn`t even accepted by a court until sentencing, long after the guilty plea has been accepted.

But there are exceptions. Under Rule 11(c)(5), if the court rejects a plea agreement where the defendant has pleaded guilty and the government has agreed to dismiss charges, to not bring further charges, or to a certain sentence or sentencing range, the court must “give the defendant an opportunity to withdraw the plea.” In this scenario, you have an “unrestricted right” to withdraw your plea as if it had never been accepted.

This is important because nearly all plea agreements have some kind of “charge bargaining,” where the government agrees to drop charges or not bring new charges if the defendant pleads guilty. After all, the whole reason the government piles on so many charges is to coerce a guilty plea, even though it knows it can get the same sentence with just the remaining charges agreed to in the plea agreement. This means a guilty plea after the court rejects a plea agreement will usually fall under Rule 11(c)(5), allowing withdrawal without any reason at all. Most people miss this point.

Another example of when you have the right to withdraw your guilty plea would be when a magistrate judge makes a recommendation to the district judge to accept our plea. In that case, your plea isn`t accepted until the district judge “adopts” the magistrate`s recommendation. Until them you can withdraw for any reason. United States v. Davila-Ruiz, 790 F.3d 249 (1st Cir. 2015).

Phase 2: After Acceptance and Prior to Sentencing

To withdraw your guilty plea after it`s accepted but before sentencing, then you must show a “fair and just reason,” according to Rule 11(d)(2)(B). Since this isn`t defined in the rule itself, we must turn to the courts to find out what this means.

In United States v. Carr, 740 F.3d 339 (5th Cir. 1984), the federal court of appeals in that case established seven factors (called the Carr factors) a court considers in finding whether a fair and just reason exists to withdraw a guilty plea after it`s been accepted by a court.

(1) A claim of innocence,
(2) Any prejudice to the prosecution,
(3) The delay in moving to withdraw the plea,
(4) Any “judicial inconvenience”,
(5) Lack of “close assistance of counsel”,
(6) The knowing and voluntary nature of the plea, and
(7) Any waste of judicial resources.

Any one or several of these can be a fair and just reason to withdraw your plea. Most courts have opted for their own factors, but Carr is the most common case cited for this purpose. And the finding of a fair and just reason is at the district court`s discretion, meaning meeting a factor doesn`t equal an automatic right to withdraw your plea.

That last point is important because it`s the way a withdrawal motion is argued that matters. Notice that constitutional issues, like the knowing and voluntary nature of the plea and the assistance of counsel, only come into play as factors, unless they`re argued as independent grounds for withdrawal. In other words, while these are common constitutional arguments attacking a guilty plea, they are only factors for the “fair and just reasons” analysis.

See the difference? Take the “close assistance of counsel” in factor # 5. It`s not the same as the familiar “ineffective assistance of counsel” (IAC) standard commonly raised in post-conviction motions. In United States v. McKnight, 570 F.3d 641 (5th Cir. 2009), the court discussed the distinction between these closely-related points.

So how do they differ? By their application. Close assistance of counsel guides a court`s discretion in allowing or disallowing withdrawal of a guilty plea, while IAC is used to invalidate a guilty plea because it would then be unconstitutional. Arguing IAC, then, implicates the validity of your plea and is an independent ground for withdrawal, while arguing a lack of close assistance of counsel supports only withdrawing your plea. The art of withdrawing your guilty plea is critical.

Phase 3: Withdrawal After Sentencing

Withdrawing your guilty plea after sentencing leaves you stuck with just two options under Rule 11(e): Direct appeal or collateral attack (i.e., a post-conviction relief motion). If you still have the ability to file a direct appeal, that`s your best option because the standard of review is better. Assuming it`s been a while since you were sentenced, your only option would be to file a post-conviction motion attacking your guilty plea.

This limited opportunity to withdraw your plea is explained by the Advisory Committee on Rule 11: “It is not possible for a defendant to withdraw a plea after sentence is imposed.” Notice the key word there: withdraw. It means you can`t withdraw your guilty plea, but you can still attack it under direct appeal or post-conviction remedies. After sentencing, it`s too late to withdraw your guilty plea but you can still challenge it as invalid.

When is a sentence imposed for purposes of Rule 11(e)? When it`s orally pronounced in court. It`s not the written judgment that counts but what`s actually said in court. That`s true for any question about a sentence: What`s said in court is what the sentence actually is, not what`s written afterward on paper. See United States v. Villano, 816 F.3d 1448 (10th Cir. 1987).

In conclusion, because how you go about withdrawing your guilty plea depends on which phase of the criminal proceeding you`re in when you do so, it cannot be stressed enough that you understand what`s expected of your motion to withdraw. Arguing the wrong way at the wrong time will surely lead to a denial.


Insider`s Guide: Getting Relief After Exposing Prosecutorial Misconduct

Insider`s Guide: Getting Relief After Exposing Prosecutorial Misconduct

We hear about errors by prosecutors all the time that are labeled “prosecutorial misconduct,” but what exactly is prosecutorial misconduct? In other words, when is a prosecutor`s error so bad that it rises to the level of prosecutorial misconduct that relief is warranted? Let`s dive into the cesspool of prosecutorial errors and take a look at what prosecutorial misconduct means.

Prosecutorial Misconduct Defined

Prosecutorial misconduct occurs when a prosecutor, during his role in prosecuting a criminal case, violated the constitution, laws, or established ethics governing a prosecutor`s actions. It`s a very broad term that includes lots of errors, and the U.S. Supreme Court`s nearly century-old definition of prosecutorial misconduct doesn`t do much to narrow what it means:

[Prosecutorial misconduct is when a] prosecuting attorney overstep[s] the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense. Berger v. United States, 295 U.S. 78, 84 (1935).

Nobody ever accused the Supreme Court of being abundantly clear on everything it says. But I do like the way the Court described the role of a prosecutor: “He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.”

Prosecutorial Misconduct is a Constitutional Problem

The problem with prosecutorial misconduct is that it almost always violates a defendant`s constitutional due process rights under the Fifth Amendment (and Fourteenth Amendment, as it applies to the states). In the textbook prosecutorial misconduct case, Brady v. Maryland, 373 U.S. 83 (1963), where the prosecutor withheld crucial evidence from the defense that would have helped disprove guilty, the Supreme Court held that prosecutorial misconduct doesn`t require a showing that the prosecutor acted in bad faith in committing the error.

This means that even an honest mistake by a prosecutor could still amount to “prosecutorial misconduct.” This is important because, though there`s a temptation to spotlight how the prosecutor messed up, it cannot be the focus of a prosecutorial misconduct claim. It`s not about the prosecutor`s actions, as disgraceful as they may be. It`s all about how those actions affected the outcome of the case.

Prosecutorial Misconduct Hinges on the Outcome

The Supreme Court set the standard for prosecutorial misconduct claims this way: The prosecutor`s misconduct must have “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Daren v. Wainwright, 477 U.S. 168, 181 (1986). That`s the overall goal with a prosecutorial-misconduct claim. The way you show the error affected the outcome will depend on the type of error by the prosecutor.

Let`s say the prosecutor withheld valuable evidence that would`ve helped prove you`re not guilty of the offense charged. In Brady, the Court put the burden on you, the defendant, to show that the evidence withheld by the government was “material” to your case. That means not any old evidence withheld would do, but instead it must tie directly to the question of your guilt or innocence. I`ve seen lots of Brady errors die simply because the defendant couldn`t show the evidence was material.

Let`s say the evidence withheld by the prosecutor was material to your case, a classic Brady error. You`re not done yet. You still have to show it would have affected the outcome of your case. That`s straight-forward if you went to trial: Just show how the evidence would have swayed the jury.

But what if you pled guilty? With nearly 98% of federal convictions by way of a guilty plea (and about 05% of state convictions), this is a hugely important question. How would you show a difference in the outcome, had you known about that withheld evidence, if you stood before the court and admitted under oath that you were guilty?

It`s not so cut-and-dried with guilty pleas. People plead guilty all the time to avoid the harsh penalties that result with going to trial, even when they didn`t commit the crime charged. This is a topic for another discussion, but its prevalence in the world of “criminal justice” is well-known. To show a difference in the outcome after a guilty plea that`s infected by a constitutional violation, the Supreme Court held in Hill v. Lockhart, 474 U.S. 52 (1985), that a person must allege (and show) that he would have gone to trial and not pled guilty, had he known of the error.

Prosecutorial Misconduct Claims Can Be Raised on Direct Appeal and Habeas Corpus

A Prosecutorial misconduct claim is common in a federal habeas corpus challenging a guilty plea as unconstitutional. But prosecutorial misconduct claims aren`t confined to habeas. A prosecutorial misconduct claim on direct appeal, which was properly preserved for appeal, typically falls under the “harmless error” rule articulated by the Supreme Court in Brecht v. Abrahamson, 507 U.S. 619 (1993). This requires showing the “error had substantial and injurious effect” on the case. In other words, a difference in the outcome.

Note that a prosecutorial misconduct claim on direct appeal must focus on errors that happened during the pretrial, trial and conviction, or appeal stages of a case. That`s because an appeal is limited to only errors in the criminal record. A habeas challenge, however, allows you to develop the record with external evidence commonly found in prosecutorial misconduct cases. But then you`d have to get around the procedural-default bar for not raising it on appeal earlier. It can become a confusing mess real fast.

Pile on top of all that the Supreme Court`s admonishment to the lowers courts that they should not set “guilty” people free simply to punish prosecutors for their errors. United States v. Hasting, 461 U.S. 499 (1983).

How the Prosecutor is Supposed to Act

Contrary to the way it may seem, the role of the prosecutor is not to secure a win, whatever the cost may be. The Supreme Court in Brady put it like this:

Society wins not when the guilty are convicted but when criminal trials are fair, our system of the administration of justice suffers when any accused is treated unfairly.

But I like the way Judge Hill put it in his dissent in Rozier v. United States, 701 F.3d 681, 690 (11th Cir. 2012):

As is inscribed in the office rotunda of the Attorney General of the United States, `The United States wins its point whenever justice is done its citizens in the courts.` Some in the Department of Justice seem to believe that the inscription reads, `Justice is done when the United States wins.`

Wrapping this up, prosecutorial misconduct isn`t about the prosecutor`s conduct, but the effect it had on someone`s criminal case. Of the multitudes of prosecutorial misconduct errors that have led to the wrongful incarceration of innocent people, hardly any of those prosecutors have been held accountable for their acts. Focusing on the prosecutor`s misconduct is a dead end. If you want to overturn your conviction, focus on how the prosecutor`s misconduct negatively affected the outcome of your case.

Dale Chappell is the author of hundreds of articles and several books on federal post-conviction relief, including Attacking the Guilty Plea: An Insider`s Guide.

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