United States v. Hill

• Decision Date: 03 August 2016
• Docket Number: No. 14-3872-cr,August Term 2015,14-3872-cr
• Citation: 890 F.3d 51
• Parties: UNITED STATES of America, Appellee, v. Elvin HILL, a/k/a Elton, Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

890 F.3d 51

UNITED STATES of America, Appellee,

v.Elvin HILL, a/k/a Elton, Defendant–Appellant.

No. 14-3872-cr

August Term 2015

United States Court of Appeals, Second Circuit.

Argued: November 12, 2015

Decided: August 3, 2016

Amended: May 9, 2018

For Appellee: Daniel S. Silver, Amy Busa, Seth D. DuCharme, Assistant United States Attorneys, New York, N.Y., for Robert L. Capers, United States Attorney for the Eastern District of New York, for the United States of America.

For Defendant–appellant: Yuanchung Lee, Federal Defenders of New York, New York, N.Y., for Elvin Hill.

Before: Jacobs, Livingston, and Droney, Circuit Judges.

Debra Ann Livingston, Circuit Judge:

In 1997, Fredy Cuenca, a livery cab driver, was robbed, shot, and killed after picking up a fare in the middle of the day in Brooklyn. Almost 14 years later, Rhan Powell admitted he was one of the two passengers who robbed Cuenca. He also attested that Elvin Hill was the second passenger—the one who carried the weapon and pulled the trigger. The Government filed an indictment, charging Hill with violating 18 U.S.C. § 924(j)(1) for committing a firearm-related murder in the course of a "crime of violence," as defined in 18 U.S.C. § 924(c)(3). In this case, the crime of violence was Hobbs Act robbery, as defined in 18 U.S.C. § 1951(b)(1). Hill pleaded not guilty, proceeded to trial, and was convicted of the charged offense.

This case raises the question whether Hobbs Act robbery is a "crime of violence" within the meaning of 18 U.S.C. § 924(c)(3).¹ Hill argues that Hobbs Act robbery does not qualify categorically as a crime of violence under the statute's "force clause," § 924(c)(3)(A), because it can be committed without physical force or the threatened deployment of the same.

We reject this argument and hold that Hobbs Act robbery is a crime of violence under 18 U.S.C. § 924(c)(3)(A).² Accordingly, we affirm the district court's judgment of conviction.

BACKGROUND³

Fredy Cuenca was a livery cab driver in New York City. One afternoon, on June 29, 1997, he received a call from his dispatcher requesting a pickup in the Bushwick neighborhood of Brooklyn. Two young men, Elvin Hill and Rhan Powell, entered Cuenca's cab. According to Powell, as they were reaching the destination, Cuenca quoted the fare price, $10, which was higher than Hill and Powell had anticipated. Powell suggested to Hill that they rob Cuenca. When Cuenca stopped the cab, Hill yelled out, "[g]ive me the fucking money." Joint App'x 295. Cuenca handed some money he had in his hand to Powell. As Powell was exiting the vehicle, Cuenca began to plead for his life in broken English, pointing to a photograph of his children on the dashboard. Outside the vehicle, Powell then heard a loud sound and saw "red on the windshield." Id. at 296. Hill had shot Cuenca—once, in the head—with a previously concealed handgun. Hill and Powell fled the scene. Cuenca died.

Several witnesses heard the fatal gunshot and saw two young men exiting the cab and fleeing the scene. One witness identified Hill as one of the assailants during a lineup conducted about two months after the crime.⁴ But Hill was not charged with the crime at that time. Rather, the indictment came nearly 15 years later.

On April 26, 2011, Powell testified before a grand jury in the Eastern District of New York and admitted that he was one of the two passengers involved in the 1997 robbery. He testified that Hill was the one who had killed Cuenca. On March 22, 2012, another federal grand jury, relying in part on Powell's 2011 testimony, returned an indictment against Hill. Therein, Hill was charged with violating 18 U.S.C. § 924(j)(1), for committing a firearms-related murder in the course of a "crime of violence," as defined in 18 U.S.C. § 924(c)(3). The alleged predicate crime of violence was Hobbs Act robbery, as defined in 18 U.S.C. § 1951(b)(1).

Hill pleaded not guilty and proceeded to trial in the United States District Court for the Eastern District of New York (Matsumoto, J. ). On January 24, 2014, the jury returned a guilty verdict. The district court sentenced Hill to 43 years' imprisonment and entered a judgment of conviction dated October 3, 2014. This appeal followed.

DISCUSSION

This opinion addresses one of Hill's claims on appeal: whether Hobbs Act robbery is a "crime of violence" within the meaning of 18 U.S.C. § 924(c)(3). Hill argues that Hobbs Act robbery does not qualify as a crime of violence because it fails to categorically constitute a crime of violence under the statute's "force clause," § 924(c)(3)(A). We reject this contention.

I

We begin with the interlocking statutory provisions involved in this appeal. Hill was indicted and convicted under 18 U.S.C. § 924(j)(1). This provision specifies as follows:

A person who, in the course of a violation of subsection (c), causes the death of a person through the use of a firearm, shall[,] ... if the killing is a murder (as defined in section 1111), be punished by death or by imprisonment for any term of years or for life ....

Section 924(c)(1)(A) in turn explains that "any person who, during and in relation to any crime of violence ..., uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm" violates subsection (c). Critically, subsection (c) defines the term "crime of violence" as "an offense that is a felony" and

(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). We refer to § 924(c)(3)(A) as the "force clause" and § 924(c)(3)(B) as the "risk-of-force clause."⁵

The "crime of violence" alleged in Hill's indictment was Hobbs Act robbery, in violation of 18 U.S.C. § 1951. Section 1951(a) penalizes a person who "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." And § 1951(b)(1) defines "robbery" to mean

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.

Taking these statutes together, the jury found that Hill used a firearm to commit a Hobbs Act robbery—pursuant to the Government's theory, a "crime of violence" under the firearm statute—and, in the course of that robbery, he murdered Cuenca in violation of § 924(j)(1).

II

A

On appeal, we consider Hill's claim that Hobbs Act robbery categorically fails to constitute a crime of violence under the force clause. To determine whether an offense is a crime of violence, courts employ what has come to be known as the "categorical approach." Taylor v. United States , 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ; see also Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2248–49, 195 L.Ed.2d 604 (2016) (outlining the categorical approach); Descamps v. United States , 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) (same); United States v. Acosta , 470 F.3d 132, 135 (2d Cir. 2006) (per curiam) (applying the categorical approach to determine whether a predicate crime was a "crime of violence" under § 924(c) ). We have explained that the categorical approach is " ‘not only consistent with both precedent and sound policy’ but[ ] also ... ‘necessary in view of the language of the applicable statutes.’ " Vargas–Sarmiento v. U.S. Dep't of Justice , 448 F.3d 159, 167 (2d Cir. 2006) (quoting Jobson v. Ashcroft , 326 F.3d 367, 372 (2d Cir. 2003) ). The categorical approach guides our analysis here.⁶

Under the categorical approach, courts identify "the minimum criminal conduct necessary for conviction under a particular statute." Acosta , 470 F.3d at 135. In doing so, courts " ‘look only to the statutory definitions’—i.e. , the elements—of [the] ... offense[ ], and not ‘to the particular [underlying] facts.’ " Descamps , 570 U.S. at 261, 133 S.Ct. 2276 (quoting Taylor , 495 U.S. at 600, 110 S.Ct. 2143 ); see also Acosta , 470 F.3d at 135 ("[W]e focus on the intrinsic nature of the offense rather than on the circumstances of the particular crime."). The reviewing court "cannot go behind the offense as it was charged to reach [its] own determination as to whether the underlying facts" qualify the offense as, in this case, a crime of violence.

Ming Lam Sui v. INS , 250 F.3d 105, 117–18 (2d Cir. 2001) (quoting Lewis v. INS , 194 F.3d 539, 543 (4th Cir. 1999) ). As relevant here, the categorical approach requires us to consider the minimum conduct necessary for a conviction of the predicate offense (in this case, a Hobbs Act robbery), and then to consider whether such conduct amounts to a crime of violence under § 924(c)(3)(A).

One final point remains. Critically, the Supreme Court has made clear in employing the categorical approach that to show a predicate conviction is not a crime of violence "requires more than the application of legal imagination to [the] ... statute's language." Gonzales v. Duenas–Alvarez , 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007). As relevant here, there must be "a realistic probability, not a theoretical possibility," that the statute at issue could be applied to conduct that does not constitute a crime of violence. Id. To show that a particular reading of the statute is realistic, a defendant "must at least point to his own case or other cases in which the ... courts in fact did apply the statute in the ... manner for which he argues...