Pratcher v. United States
| Decision Date | 07 March 2023 |
| Docket Number | 1:19-cv-00215-AGF |
| Parties | HARVEE PRATCHER, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Eastern District of Missouri |
This matter is before the Court on Petitioner Harvee Pratcher's motion filed under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, in which Petitioner argues that his conviction for robbery under the Hobbs Act, 18 U.S.C. § 1951, could not serve as a predicate “crime of violence” to support his additional conviction under 18 U.S.C. § 924(c), and that his counsel was ineffective for failing to argue that point. The Court also granted Petitioner's unopposed, pro se motion for leave to supplement his petition in order to expand upon the legal arguments in support of his claim.
Following briefing with respect to Petitioner's original motion the United States Supreme Court issued its decision in United States v. Taylor, 142 S.Ct. 2015 (2022) which held that a conviction for an attempted Hobbs Act robbery does not qualify as a “crime of violence” under § 924(c)(3)(A) because no element of the offense requires proof that the defendant used attempted to use, or threatened to use force. In light of Taylor and an Administrative Order entered by the Chief Judge of this Court in response to Taylor, the Court appointed counsel for Petitioner. Appointed counsel has now further supplemented Petitioner's § 2255 motion, and the Government has filed responses opposing the original and supplemental motions. For the reasons set forth below, the Court will deny each of Petitioner's motions.
On January 18, 2019, Petitioner pleaded guilty to interfering with commerce by robbery, in violation of the Hobbs Act, 18 U.S.C. § 1951(a), and 18 U.S.C. § 2 (Count I); and to brandishing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c) (Count II). See United States v. Pratcher, 1:17CR108 AGF (E.D. Mo.).[1]On March 18, 2019, the Court sentenced Petitioner to an aggregate 144-month term of imprisonment. This term consisted of 60 months for the Hobbs Act robbery (Count I), and a consecutive 84-month term of imprisonment for the § 924(c) charge (Count II). Petitioner did not file a direct appeal.
On November 25, 2019, Petitioner filed his original § 2255 motion claiming he was entitled to relief based on the Supreme Court's decision in United States v. Davis, 139 S.Ct. 2319 (2019), which held that the so-called “residual clause” set forth in § 924(c)(3)(B)'s definition of “crime of violence” is unconstitutionally vague. Further, Petitioner claimed that his counsel was ineffective for failing to raise the argument which ultimately prevailed in Davis.
On June 17, 2022, Petitioner supplemented his motion, pro se, in order to add an argument that his § 924(c) conviction could not stand in light of Borden v. United States, 141 S.Ct. 1817 (2021), which held that offenses that can be committed recklessly cannot satisfy the definition of “violent felony” under the elements clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e). Petitioner argued that a Hobbs Act robbery can be committed recklessly and, applying the reasoning of Borden, should therefore not qualify as a “crime of violence” under § 924(c). See ECF No. 18.
In his most recent supplemental motion filed through appointed counsel, Petitioner asserts three claims. First, Petitioner argues that the Supreme Court's recent decision in Taylor bars his § 924(c) conviction. Petitioner acknowledges that Taylor held that an attempted Hobbs Act robbery was not a “crime of violence” under § 924(c) and that Petitioner was convicted of a completed Hobbs Act robbery. But Petitioner argues that the Hobbs Act is an indivisible statute, with the crimes of attempted and completed robbery representing alternative means that cannot be evaluated independently, and as such, the statute as a whole categorically fails to qualify as a “crime of violence.”
Second, Petitioner argues that, even assuming the Hobbs Act is divisible between completed and attempted robberies, a completed Hobbs Act robbery still does not constitute a “crime of violence” under § 924(c) because the statute allows convictions based on threats of injury to intangible property, whereas § 924(c) requires a threat of physical force.
Finally, Petitioner argues that a Hobbs Act completed robbery is not a “crime of violence” under § 924(c) because it can be committed by de minimis force against property, which Petitioner argues is insufficient under § 924(c).
The Government opposes each of Petitioner's arguments.
Pursuant to 28 U.S.C. § 2255, a federal prisoner may seek relief from a sentence imposed against him on the ground that “the sentence was imposed in violation of the Constitution or law of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.”
Whether a Hobbs Act Completed Robbery Qualifies as a “Crime of Violence”
Section 924(c)(1)(A) mandates a minimum five-year sentence for anyone convicted of “us[ing] or carr[ying] a firearm” “during and in relation to any crime of violence.” 18 U.S.C. § 924(c)(1)(A)(i). The statute defines a “crime of violence” in two subparts. The first definition is known as the “elements clause” and is found in § 924(c)(3)(A). See United States v. Davis, 139 S.Ct 2319, 2324 (2019). The elements clause covers felonies that “ha[ve] as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A). The second definition is known as the “residual clause” and is set forth in § 924(c)(3)(B). The residual clause covers felonies that “by [their] nature, involve[] 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).
Davis declared the “residual clause” unconstitutionally vague. 139 S.Ct. at 2336. But Davis did not invalidate the elements clause, and “even today the elements clause remains in force.” Taylor, 142 S.Ct. at 2019. Thus, after Davis, a conviction qualifies as a “crime of violence” under § 924(c) only if it satisfies the elements clause.
Taylor, in turn, held that an attempted Hobbs Act robbery failed to satisfy the elements clause because an “attempt” requires only an intent to unlawfully take or obtain personal property by means of actual or threatened force, and a substantial step toward that end. Taylor, 142 S.Ct. at 2020. The Supreme Court reasoned that “an intention is just that, no more” and that a “substantial step” could hypothetically fall short of the elements clause's requirement “that the defendant used, attempted to use, or even threatened to use force against another person or his property.” Id.
But in so holding, the Court explicitly distinguished attempted Hobbs Act robberies from completed Hobbs Act robberies. See id. () (emphasis in original). And the Court explicitly noted that “to win a conviction for a completed robbery the government must show that the 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.'” Id. (quoting 18 U.S.C. § 1951(b)) (emphasis in original).
For this reason, the Eighth Circuit (in an unpublished opinion) and other circuits have continued to hold, post-Taylor, that a completed Hobbs Act robbery is a “crime of violence” under the elements clause. See United States v. Moore, No. 22-1899, 2022 WL 4361998, at *1 (8th Cir. Sept. 21, 2022) (per curiam and unpublished) (); see also United States v. McCoy, 58 F.4th 72, 74-75 (2d Cir. 2023) (per curiam) (); United States v. Linehan, 56 F.4th 693, 700 (9th Cir. 2022) ().
A criminal statute is divisible when it “list[s] elements in the alternative, and thereby define[s] multiple crimes.” Mathis v. United States, 579 U.S. 500, 505 (2016). But a statute that merely lists “alternative means of satisfying one (or more) of its elements” is indivisible. Id. at 503. If a statute is “divisible,” courts apply a “modified categorical approach,” looking to certain permitted sources (such as the indictment or plea agreement) “to determine what crime, with what elements, a defendant was convicted of.” United States v. Kent, 44 F.4th 773, 775-76 (8th Cir. 2022).
Petitioner invokes this divisibility analysis to argue that the Hobbs Act is indivisible as to attempted and completed robberies such that Taylor's declaration that attempted Hobbs Act robberies are not crimes of violence applies equally to completed Hobbs Act robberies. But Taylor itself disclaimed such an approach by explicitly distinguishing between the elements of a...
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