U.S. v. Kennedy

Decision Date16 January 1998
Docket NumberNo. 97-3009,97-3009
Citation133 F.3d 53
PartiesUNITED STATES of America, Appellee, v. Jimmie Lee KENNEDY, a/k/a James Kornegay, Appellant.
CourtU.S. Court of Appeals — District of Columbia Circuit

Neal Goldfarb, Washington, DC, appointed by the court, argued the cause and filed the briefs for appellant.

Elizabeth H. Danello, Assistant U.S. Attorney, Washington, DC, argued the cause for appellee, with whom Mary Lou Leary, U.S. Attorney, and John R. Fisher, Assistant U.S. Attorney, were on the brief.

Before: EDWARDS, Chief Judge, HENDERSON and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

Appellant Jimmie Lee Kennedy appeals from his conviction by a jury of robbery and weapons offenses on the grounds that the district court erred in imposing five life sentences. He contends that the robbery convictions under the Hobbs Act could not constitute the basis for life imprisonment, that the jury was incorrectly instructed as to the firearm possession count, that the government failed to comply with the statutory requirement that he be served prior to trial with a copy of the information filed in court that the government would seek a term of life imprisonment, and that his sentence for violating the felon-in-possession law was incorrectly assessed in light of the life sentences he received for one of the robberies. We conclude that the Hobbs Act contention is unpersuasive, and hold that the instructional error was harmless and that the district court did not clearly err in ruling that the government had met its burden to show service of the information, albeit just barely. However, we agree with appellant's contention regarding his sentence for being a felon in possession of a firearm and, accordingly, remand that count to the district court for resentencing; in all other respects we affirm the judgment of conviction.

I.

Appellant and a man named Harrington robbed a Roy Rogers restaurant at 6514 Georgia Avenue, N.W., in Washington, D.C., on the evening of May 17, 1995, and again on the morning of June 25, 1995. United States v. Harrington, 108 F.3d 1460, 1463-64 (D.C.Cir.1997). On both occasions appellant produced a handgun and ordered store employees to give him the money from the restaurant safe. During the second robbery, two uniformed police officers happened to be waiting in a marked Metropolitan Police Department car to place an order at the restaurant's drive-through window. The officers apprehended appellant after he left the restaurant, but not before he drew his gun and fired several shots at them, slightly wounding one officer. Appellant also pointed his gun at another police officer who arrived on the scene to arrest him.

The government indicted appellant for two violations of the Hobbs Act, 18 U.S.C. § 1951, two counts of using a firearm to commit a crime of violence, 18 U.S.C. § 924(c), and one count of possession of a firearm by a convicted felon, 18 U.S.C. § 922(g). He was also charged with two counts of assault on a police officer pursuant to D.C.Code 22-505(a) and (b). A jury found him guilty as charged and the district court sentenced him to five concurrent life terms of imprisonment for the federal charges, and 20 months to five years imprisonment on the assault charges.

II.

Individuals who use or carry a firearm "during and in relation to any crime of violence" must be sentenced to a five year prison term in addition to any sentence warranted by their conviction for the underlying crime. 18 U.S.C. § 924(c)(1). The term "crime of violence" is defined as a felony that

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 924(c)(3). Additionally, the federal three-strikes law provides that individuals who have been convicted of two prior serious violent felonies "shall be sentenced to life imprisonment." 1 18 U.S.C. § 3559(c)(1). Under the statute,

the term "serious violent felony" means--

(i) a Federal or State offense, by whatever designation and wherever committed, consisting of ... robbery (as described in section 2111, 2113, or 2118); ... extortion; ... firearms use; ... and

(ii) any other offense punishable by a maximum term of imprisonment of 10 years or more that has as an element the use, attempted use, or threatened use of physical force against the person of another or that, by its nature, involves a substantial risk that physical force against the person of another may be used in the course of committing the offense.

Id. § 3559(c)(2)(F). 2

A "crime of violence" and a "serious violent felony" are ordinarily designated as such by looking to the statutory definition of the crime, rather than the evidence presented to prove it. See, e.g., United States v. Romero, 122 F.3d 1334, 1342-43 (10th Cir.1997); United States v. Amparo, 68 F.3d 1222, 1225-26 (9th Cir.1995). Although appellant's armed robberies contained all the indicia of violent acts, he correctly observes that what he did is not at issue. Instead, the question is whether the crime with which he was charged constituted a serious violent felony or a crime of violence. As the Supreme Court explained in Taylor v. United States, 495 U.S. 575, 601, 110 S.Ct. 2143, 2159-60, 109 L.Ed.2d 607 (1990), "Congress generally took a categorical approach to predicate offenses" because "the practical difficulties and potential unfairness of a factual approach are daunting." Id. Appellant contends that his § 924(c) and third-strike conviction must be vacated because the Hobbs Act charges cannot constitute predicate crimes of violence or serious violent felonies, as required by both statutes.

The Hobbs Act provides in pertinent part:

(a) Whoever in any way or degree obstructs, delays, or affects 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 not more than $10,000 or imprisoned not 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....

(2) The term "extortion" means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.

18 U.S.C. § 1951.

The Hobbs Act thus prohibits interference with interstate commerce through either robbery or extortion. Because extortion under color of official right need not be effected through violence, not all crimes under the Hobbs Act need be violent crimes. Appellant would accordingly have this court interpret Taylor to mean that if one possible way to violate a criminal statute could be nonviolent, all statutory violations would be immunized from the three-strikes law and § 924(c). Yet doing so would ignore an exception provided in Taylor that has been interpreted by this court and others to cover statutes that enjoin both violent and nonviolent forms of conduct. In Taylor, the Supreme Court explained that its "categorical approach ... may permit the sentencing court to go beyond the mere fact of conviction" in cases where the crime is "generic." See Taylor, 495 U.S. at 602, 110 S.Ct. at 2160. Because the mere fact of conviction under the Hobbs Act does not establish whether a defendant was convicted of a violent or nonviolent crime, the Hobbs Act is one of the "generic" crimes that requires further assessment by the district court. See United States v. Mendez, 992 F.2d 1488, 1490 (9th Cir.1993). In the instant case, therefore, the district court was entitled to look at the indictment or jury instructions to determine whether the charged crime was "by its nature" a crime of violence pursuant to § 924(c)(3)(B) or a serious violent felony pursuant to § 3559(c)(1)(A)(ii). 3 See United States v. Palmer, 68 F.3d 52, 55-56 (2d Cir.1995); United States v. Winter, 22 F.3d 15, 18 (1st Cir.1994). As the Ninth Circuit has concluded where "the indictment expressly states which of the various permutations of § 1951 is the source of the conviction ... [w]e may consider [the] indictment in determining the nature of an offense using the categorical approach." Mendez, 992 F.2d at 1491; cf. also United States v. Elder, 88 F.3d 127, 128-29 (2d Cir.1996) (per curiam); United States v. Farmer, 73 F.3d 836, 842 (8th Cir.1996).

Our conclusion comports with this court's prior application of the Taylor exception. In United States v. Mathis, 963 F.2d 399 (D.C.Cir.1992), this court remanded a three-strikes case to the district court to determine whether "the indictment and/or jury instructions" for a prior conviction "demonstrate that the jury necessarily found that appellant used or threatened to use physical force" in committing his crime. Id. at 409. The approach adopted here and in Mathis avoids the factual inquiry that concerned the Supreme Court in Taylor, but permits courts to treat violent crimes as Congress intended they be treated. Furthermore, the exception provided to the general rule in Taylor is narrow; a district court may only undertake this inquiry when a statute provides for both violent and nonviolent means of violation.

The indictment charged appellant with two counts of "Hobbs Act Robbery, in violation of Title 18, United States Code, Sections 1951(a) and (2)." Because robbery that affects interstate commerce is a violent felony prohibited by the Hobbs Act, and because the indictment establishes that appellant was being charged with such a crime, a...

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