United States v. Camp

• Decision Date: 07 September 2018
• Docket Number: No. 17-1879,17-1879
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Desmond CAMP, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

903 F.3d 594

UNITED STATES of America, Plaintiff-Appellee,

v.Desmond CAMP, Defendant-Appellant.

No. 17-1879

United States Court of Appeals, Sixth Circuit.

Decided and Filed: September 7, 2018

Rehearing En Banc Denied October 19, 2018

COUNSEL ON BRIEF: Kenneth P. Tableman, Kenneth P. Tableman, P.C., Grand Rapids, Michigan, for Appellant. Shane Cralle, United States Attorney's Office, Detroit, Michigan, for Appellee.

Before: CLAY, STRANCH, and LARSEN, Circuit Judges.

JANE B. STRANCH, Circuit Judge.

Desmond Camp pled guilty to Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) ; using a firearm during a crime of violence, in violation of 18 U.S.C § 924(c) ; and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He now appeals his conviction and sentence, arguing that Hobbs Act robbery is not a crime of violence and therefore cannot serve as a predicate for his § 924(c) conviction or his career offender classification. For the following reasons, we AFFIRM Camp's conviction, VACATE his sentence, and REMAND for resentencing.

I. BACKGROUND

In November 2015, Desmond Camp robbed a dollar store at gunpoint. He was arrested and charged by indictment with Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) ; using a firearm during a crime of violence, in violation of 18 U.S.C § 924(c) ; and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Camp pled guilty on all counts.

Pursuant to 18 U.S.C. § 924(c)(1)(C)(i), Camp faced a 25-year mandatory minimum prison sentence on the § 924(c) count because he had a prior conviction for the same offense. The district court also determined that Camp was a career offender under the United States Sentencing Guidelines (USSG), finding that Camp's instant Hobbs Act robbery conviction was a crime of violence and that his two prior convictions—a 2003 federal bank robbery conviction and a 1990 Michigan armed robbery conviction—were both crimes of violence. Camp received a 372-month prison sentence—the 25-year mandatory minimum on the § 924(c) count and 72 months on the robbery and felon in possession counts, to run consecutively.

Camp appeals his conviction and sentence, arguing that Hobbs Act robbery is not a crime of violence and therefore cannot serve as a predicate for his § 924(c) conviction or his career offender classification.

II. ANALYSIS

Whether an offense qualifies as a crime of violence under § 924(c) or under the Guidelines is a legal question that this court reviews de novo. See United States v. Rafidi , 829 F.3d 437, 443 (6th Cir. 2016) ( § 924(c) ); United States v. Cooper , 739 F.3d 873, 877 (6th Cir. 2014) (Guidelines). The Government acknowledges that Camp preserved his Guidelines challenge but argues that Camp waived his right to challenge his § 924(c) conviction by pleading guilty. Because Camp's § 924(c) argument fails on the merits, we need not resolve this question.¹

A. Whether Hobbs Act Robbery Is a Crime of Violence Under § 924(c)

Camp argues that Hobbs Act robbery is not a crime of violence under 18 U.S.C § 924(c). He acknowledges, however, that binding precedent forecloses his argument. In United States v. Gooch , we held that Hobbs Act robbery is a crime of violence under § 924(c)'s use-of-force clause. 850 F.3d 285, 292 (6th Cir. 2017), cert. denied , ––– U.S. ––––, 137 S.Ct. 2230, 198 L.Ed.2d 670 (2017). We explained that the Hobbs Act is divisible into Hobbs Act robbery and Hobbs Act extortion offenses, that a Hobbs Act robbery conviction "requires a finding of actual or threatened force, or violence, or fear of injury, immediate or future," to person or property, and therefore "clearly has as an element the use, attempted use, or threatened use of physical force against the person or property of another as necessary to constitute a crime of violence under § 924(c)(3)(A)." Id. at 291–92 (citation and internal quotation marks omitted).

Camp concedes that he was convicted of Hobbs Act robbery, rather than Hobbs Act extortion. Under Gooch , Camp's Hobbs Act robbery conviction qualifies as a crime of violence under § 924(c), and his argument to the contrary is foreclosed.² "This panel may not overrule the decision of another panel; the earlier determination is binding authority unless a decision of the United States Supreme Court mandates modification or this Court sitting en banc overrules the prior decision." United States v. Moody , 206 F.3d 609, 615 (6th Cir. 2000).

B. Whether Hobbs Act Robbery Is a Crime of Violence Under the Guidelines

Our holding in Gooch does not determine whether Hobbs Act robbery is a crime of violence under the career offender guideline, however, because 18 U.S.C. § 924(c)(3) and USSG § 4B1.2 define "crime of violence" differently.

Under the Sentencing Guidelines, a defendant is a career offender, and therefore subject to a higher guideline range, if:

(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

USSG § 4B1.1(a). The 2016 version of the Guidelines, which applies to Camp, defines crime of violence as:

[A]ny offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—

(1) has as 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 or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).

USSG § 4B1.2(a). Subsection (1) is known as the use-of-force or elements clause, and subsection (2) is known as the enumerated offense clause. The 2016 Guidelines, unlike prior versions, do not contain a residual clause.

Although both 18 U.S.C. § 924(c) and USSG § 4B1.1(a) have a use-of-force clause, the Guidelines' force clause is limited to force against the person , while § 924(c) covers force against person or property . See 18 U.S.C. § 924(c)(3)(A) ; USSG § 4B1.2(a)(1). We must determine, then, whether Hobbs Act robbery is a crime of violence under the Guidelines.

The Hobbs Act provides that:

Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in 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 under this title or imprisoned not more than twenty years, or both.

18 U.S.C. § 1951(a). Robbery is in turn defined as:

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, 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).

Many courts of appeals have held that Hobbs Act robbery is a crime of violence under § 924(c). See Gooch , 850 F.3d at 292 (collecting cases and "join[ing] our sister circuits in ruling that Hobbs Act robbery constitutes a crime of violence [under § 924(c) ]"). The only circuit to have squarely addressed whether Hobbs Act robbery categorically qualifies as a crime of violence under the Guidelines, however, held that it was not. See United States v. O'Connor , 874 F.3d 1147, 1158–59 (10th Cir. 2017). The Tenth Circuit, applying the same version of the Guidelines that applies to Camp, determined that the minimum conduct necessary for a Hobbs Act robbery conviction is broader than the enumerated offenses of robbery and extortion and therefore concluded that Hobbs Act robbery is not a crime of violence under the enumerated offense clause. Id . at 1153–58. The court further held that Hobbs Act robbery does not have as an element the use or threatened use of force against the person , as is required under the Guidelines' use-of-force clause. Id . at 1158.

1. Categorical Approach

As an initial matter, we must determine whether the categorical approach applies. We typically use the categorical approach to analyze whether a conviction qualifies as a crime of violence under the Guidelines, "meaning that we look at the statutory definition of the crime of conviction, not the facts underlying that conviction, to determine the nature of the crime." United States v. Yates , 866 F.3d 723, 728 (6th Cir. 2017) (quoting United States v. Ford , 560 F.3d 420, 422 (6th Cir. 2009) ). Under the categorical approach, courts must "assume that [the defendant's] conviction rested upon nothing more than the least of the acts criminalized, and then determine whether even those acts would qualify as a crime of violence under the guidelines." Id. (brackets, citations, and internal quotation marks omitted).

The Government argues that we need not apply the categorical approach in this case because the offense in question is the instant offense of conviction, rather than a prior offense. A few circuits have adopted this approach. See, e.g. , United States v. Williams , 690 F.3d 1056, 1069 (8th Cir. 2012) ; United States v. Riggans , 254 F.3d 1200, 1204 (10th Cir. 2001) ; see also United States v. Robinson , 844 F.3d 137, 141 (3d Cir. 2016), cert. denied , ––– U.S. ––––, 138 S.Ct. 215, 199 L.Ed.2d 141 (2017). Other courts apply the categorical approach to both instant and prior convictions. See, e.g. , United States v. Hill , 890 F.3d 51, 55–56 (2d Cir. 2018) ; United States v. Stoker , 706 F.3d 643, 647–49 (5th Cir. 2013) ; United States v. Piccolo , 441 F.3d...