United States v. Hill
Decision Date | 03 August 2016 |
Docket Number | August Term 2015,No. 14-3872-cr,14-3872-cr |
Citation | 832 F.3d 135 |
Parties | United States of America, Appellee, v. Elvin Hill, A/K/A Elton, Defendant–Appellant. |
Court | U.S. Court of Appeals — Second Circuit |
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. He also contends that Hobbs Act robbery cannot qualify as a crime of violence under the “risk-of-force clause,” § 924(c)(3)(B), because the Supreme Court's decision in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (Johnson II ) (2015), effectively rendered that clause unconstitutionally vague.
We reject both arguments and hold that Hobbs Act robbery is a crime of violence under 18 U.S.C. § 924(c)(3)
. Accordingly, we affirm the district court's judgment of conviction.
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.3 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.
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 on two grounds. First, he claims that Hobbs Act robbery fails to categorically constitute a crime of violence under the statute's “force clause,” § 924(c)(3)(A). Second, he argues that the “risk-of-force clause,” § 924(c)(3)(B), should be deemed void for vagueness under the Supreme Court's decision in Johnson II. We reject both contentions.
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:
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)
.
We first 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) ( ); Descamps v. United States , –––U.S. ––––, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013) (same); United States v. Acosta , 470 F.3d 132, 135 (2d Cir. 2006) (per curiam) ( ). 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.5
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 , 133 S.Ct. at 2283 (quoting Taylor , 495 U.S. at 600, 110 S.Ct. 2143 ); see also
Acosta , 470 F.3d at 135 (). 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...
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