U.S. v. Elder, 1783

• Citation: 88 F.3d 127
• Decision Date: 03 July 1996
• Docket Number: D,No. 1783,1783
• Parties: UNITED STATES, Appellee, v. Don ELDER, Defendant-Appellant. ocket 96-1009.
• Court: U.S. Court of Appeals — Second Circuit

Page 127

88 F.3d 127

UNITED STATES, Appellee, v. Don ELDER, Defendant-Appellant.

No. 1783, Docket 96-1009.

United States Court of Appeals Second Circuit.

Submitted June 18, 1996.

Decided July 3, 1996.

Judith Lieb, Assistant United States Attorney, Brooklyn, New York (Zachary W. Carter, United States Attorney for the Eastern District of New York, Emily Berger, Assistant United States Attorney, Brooklyn, New York, on the brief), for Appellee.

Stuart D. Rubin, Brooklyn, New York, for Defendant-Appellant.

Before: KEARSE, MAHONEY, and McLAUGHLIN, Circuit Judges.

PER CURIAM:

Defendant Don Elder appeals from a judgment of conviction entered in the United States District Court for the Eastern District of New York following his plea of guilty before Raymond J. Dearie, Judge, to two substantive violations of 18 U.S.C. § 1951 (1994) (the "Hobbs Act" or the "Act"), to wit, obstruction of commerce by robbery and attempting to obstruct commerce by robbery, and to one count of using and carrying a firearm during and in relation to a Hobbs Act conspiracy, in violation of 18 U.S.C. § 924(c) (1994). Elder was sentenced principally to 201 months' imprisonment, including five years' imprisonment for the firearm conviction, to be followed by a three-year term of supervised release. On appeal, he contends that the Supreme Court's decision in Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), entitles him to a reversal of his firearm conviction on the ground that conspiracy does not constitute a crime of violence within the meaning of § 924(c). Assuming arguendo that this contention has not been waived by Elder's plea of guilty, we reject it on its merits and affirm the conviction.

Section 924(c) provides enhanced punishment for any person who "during and in relation to any crime of violence ... uses or carries a firearm." 18 U.S.C. § 924(c)(1). In Bailey, the Supreme Court considered the meaning of the word "use[ ]" in § 924(c)(1) and held that mere possession of a firearm does not suffice. It ruled that "[t]o sustain a conviction under the 'use' prong of § 924(c)(1), the Government must show that the defendant actively employed the firearm during and in relation to the predicate crime." --- U.S. at ----, 116 S.Ct. at 509. Elder contends that since conspiracy is a crime of agreement, and he did not actively employ a gun at the moment he was entering into the agreement to commit robberies, his conspiracy is not a proper predicate for his conviction under § 924(c). We disagree.

As defined in § 924(c), a crime of violence includes "a felony ... 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)(B); see also id. § 16 (1994) (generally defining "crime of violence" for purposes of Title 18 as "(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and 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").

The Hobbs Act makes it unlawful to, inter alia, "affect[ ] commerce or the movement of any article or commodity in commerce, by robbery ... or ... conspire[ ] so to do." 18 U.S.C. § 1951(a). The Act defines "robbery" as the unlawful taking of property from a person "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." Id. § 1951(b)(1). Thus, a Hobbs Act conspiracy to commit robbery is by definition a conspiracy that involves a substantial risk that physical force may be used against the person or property of another.

We have held in several circumstances that conspiracy is itself a crime of violence when its objectives are violent crimes or when its members intend to use violent methods to achieve its goals. A RICO conspiracy to commit robbery and extortion, for example, is a crime of violence within the meaning of the Juvenile Delinquency Act, 18 U.S.C. §§ 5031-5042. See United States v. Doe, 49 F.3d 859, 866 (2d Cir.1995). Conspiracy to commit armed robbery is a crime of violence within the meaning of the Bail Reform Act, 18 U.S.C. §§ 3141-3156. See United States v. Chimurenga, 760 F.2d 400, 403-04 (2d Cir.1985). And in United States v. Patino, 962 F.2d 263 (2d Cir.), cert. denied, 506 U.S. 927, 113 S.Ct. 354, 121 L.Ed.2d 268 (1992), we held that conspiracy to commit kidnaping is a crime of violence within the meaning of § 924(c)(1):

A conspiracy, by its very nature, is a collective criminal effort where a common goal unites two or more criminals. Such a meeting...