United States v. Prigan

• Decision Date: 16 August 2021
• Docket Number: No. 18-30238,18-30238
• Citation: 8 F.4th 1115
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steven Ray PRIGAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

8 F.4th 1115

UNITED STATES of America, Plaintiff-Appellee,

v.Steven Ray PRIGAN, Defendant-Appellant.

No. 18-30238

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 4, 2021 Seattle, Washington

Filed August 16, 2021

Colin G. Prince (argued) and Matthew Campbell, Chief Appellate Attorneys; Federal Defenders of Eastern Washington & Idaho, Spokane, Washington, for Defendant-Appellant.

James A. Goeke (argued), Assistant United States Attorney; Joseph H. Harrington, United States Attorney; United States Attorney's Office, Spokane, Washington; for Plaintiff-Appellee.

Before: Danny J. Boggs,^* Marsha S. Berzon, and Mary H. Murguia, Circuit Judges.

MURGUIA, Circuit Judge:

This case involves Steven Prigan's sixty-four-month sentence of imprisonment for illegally possessing firearms in 2018. To correctly calculate Prigan's Sentencing Guidelines range for the 2018 firearms offense, the district court had to first perform a categorical-approach analysis and answer the following question: whether Prigan's 2014 conviction for Hobbs Act robbery under 18 U.S.C. § 1951(b)(1) is a "crime of violence" according to United States Sentencing Guidelines § 4B1.2(a). The answer to that question determined whether Prigan's Guidelines range would increase. See U.S. Sent'g Guidelines Manual ("U.S.S.G.") § 2K2.1(a)(3) (U.S. Sent'g Comm'n 2018) (requiring a higher base offense level for a defendant who was previously convicted of a crime of violence under § 4B1.2(a) ).

The district court determined that Prigan's 2014 conviction for Hobbs Act robbery is a crime of violence under § 4B1.2(a) and increased Prigan's Guidelines range. On appeal, Prigan argues that the district court erred in concluding that his 2014 conviction for Hobbs Act robbery is a crime of violence under § 4B1.2(a). Six of our sister circuits have held that Hobbs Act robbery is not a crime of violence under § 4B1.2(a). See United States v. Green , 996 F.3d 176, 184 (4th Cir. 2021) ; Bridges v. United States , 991 F.3d 793, 800 (7th Cir. 2021) ; United States v. Eason , 953 F.3d 1184, 1194 (11th Cir. 2020) ; United States v. Rodriguez , 770 F. App'x 18, 21–22 (3d Cir. 2019) ; United States v. Camp , 903 F.3d 594, 604 (6th Cir. 2018) ; United States v. O'Connor , 874 F.3d 1147, 1158 (10th Cir. 2017).

We agree with our sister circuits and hold that Hobbs Act robbery is not a crime of violence under § 4B1.2(a). We therefore vacate Prigan's sentence and remand this case for resentencing.

I.

In June 2014, Prigan pleaded guilty to two counts of Hobbs Act robbery under 18 U.S.C. § 1951. For that conviction, the United States District Court for the Eastern District of Washington sentenced Prigan to three years of imprisonment and three years of supervised release. Prigan served three years in prison and was released from physical custody, but he remained on supervised release. Prigan's supervised-release conditions and conviction for Hobbs Act robbery prohibited him from possessing any firearm or ammunition.

In June 2018, federal officers searched Prigan's residence and vehicle. They found firearms, ammunition, and methamphetamine. The officers arrested Prigan. A grand jury indicted Prigan on two counts involving firearms. Count 1 charged Prigan as a felon and unlawful user of controlled substances who possessed firearms and ammunition in violation of 18 U.S.C. §§ 922(g)(1), 922(g)(3), and 924(a)(2). Count 2 charged Prigan with possessing an unregistered firearm in violation of 26 U.S.C. § 5841. Prigan pleaded guilty to both Counts in a written plea agreement.

In November 2018, the district court held a hearing to sentence Prigan in the 2018 firearms case. The district court received a Presentence Investigation Report ("PSR") containing a Guidelines calculation. The PSR stated that Prigan's 2014 conviction for Hobbs Act robbery constituted a crime of violence under § 4B1.2(a). This categorization increased Prigan's Guidelines range from forty-six to fifty-seven months of imprisonment to fifty-seven to seventy-one months of imprisonment. See U.S.S.G. § 2K2.1(a)(3) (requiring a higher base offense level for Prigan's Guidelines calculation if he was previously convicted of a crime of violence under § 4B1.2(a) ).

Prigan objected to the PSR. In Prigan's view, the PSR erred in stating that his 2014 conviction for Hobbs Act robbery is a crime of violence under § 4B1.2(a) and erroneously inflated Prigan's Guidelines range. The government's counsel acknowledged Prigan's "very thoughtful brief on the issue" and did not offer any written response in the district court.

The district court overruled Prigan's objections to the PSR. That is, the district court ruled that Prigan's 2014 conviction for Hobbs Act robbery is a crime of violence under § 4B1.2(a). As a result, the district court concluded that Prigan's Guidelines range was fifty-seven to seventy-one months of imprisonment. The district court sentenced Prigan to sixty-four months of imprisonment because the district court thought a sentence within the Guidelines range was appropriate. Prigan timely appealed his sixty-four-month sentence.¹

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo whether an offense is a crime of violence under the Guidelines. See United States v. Robinson , 869 F.3d 933, 936 (9th Cir. 2017). A district court's Guidelines-calculation error is subject to harmless-error review. United States v. Munoz-Camarena , 631 F.3d 1028, 1030 (9th Cir. 2011) (per curiam).

III.

On appeal, Prigan argues that his 2014 conviction for Hobbs Act robbery is not a crime of violence under § 4B1.2(a). We apply the "formal categorical approach" to determine whether a criminal defendant's prior conviction is a crime of violence under § 4B1.2(a). See Descamps v. United States , 570 U.S. 254, 261, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) (citation omitted).

To apply the categorical approach, we do not look at the facts underlying Prigan's 2014 conviction for Hobbs Act robbery. See United States v. Velasquez-Reyes , 427 F.3d 1227, 1229 (9th Cir. 2005). We instead compare "the scope of the conduct covered by the elements of Hobbs Act robbery with the definitions of ‘crime of violence’ in [ ] § 4B1.2(a)." Eason , 953 F.3d at 1189.² If the conduct covered by Hobbs Act robbery sweeps more broadly than the conduct covered by § 4B1.2(a) ’s crime-of-violence definitions, Hobbs Act robbery is not categorically a crime of violence under § 4B1.2(a). See Descamps , 570 U.S. at 261, 133 S.Ct. 2276 ; Eason , 953 F.3d at 1189. On the other hand, if the conduct covered by Hobbs Act robbery does not sweep more broadly than the conduct covered by § 4B1.2(a) ’s crime-of-violence definitions, Hobbs Act robbery is categorically a crime of violence under § 4B1.2(a) ; that is because all Hobbs Act robberies would be contained within § 4B1.2(a) ’s crime-of-violence definitions. See Descamps , 570 U.S. at 261, 133 S.Ct. 2276.

A.

Our categorical-approach analysis starts with the elements of Hobbs Act robbery, which is defined as follows:

[T]he 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.

18 U.S.C. § 1951(b)(1) (emphasis added). The key takeaway from § 1951(b)(1) ’s text—for our purpose—is that a person may commit Hobbs Act robbery by using force or threatening to use force against a person or property . See Green , 996 F.3d at 180 ; Bridges , 991 F.3d at 800.

On the other hand, § 4B1.2(a) ’s crime-of-violence definitions are narrower because a person commits a crime of violence only if he or she uses force or threatens to use force against persons . See Bridges , 991 F.3d at 800–02. Section 4B1.2(a) defines "crime of violence" as any federal or state offense 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).

U.S.S.G. § 4B1.2(a) (emphasis added).

We will call § 4B1.2(a)(1) the "force clause" because it covers defendants who use force or threaten to use force against a person. See id. § 4B1.2(a)(1). And we will call § 4B1.2(a)(2) the "enumerated-offenses clause" because it covers a list of enumerated offenses that constitute a crime of violence. See id. § 4B1.2(a)(2). The parties here agree that robbery and extortion are the only two relevant offenses within § 4B1.2(a) ’s enumerated-offenses clause in Prigan's case.

With these provisions in mind, we must determine whether Hobbs Act robbery sweeps more broadly than (1) § 4B1.2(a) ’s force clause, (2) "robbery" under § 4B1.2(a) ’s enumerated-offenses clause, and (3) "extortion" under § 4B1.2(a) ’s enumerated-offenses clause. See Green , 996 F.3d at 180–84. If Hobbs Act robbery sweeps more broadly than all three, Prigan's 2014 conviction for Hobbs Act robbery is not categorically a crime of violence under § 4B1.2(a). See id. On the other hand, if Hobbs Act robbery does not sweep more broadly than any one of those three, Prigan's 2014 conviction for Hobbs Act robbery is categorically a crime of violence under § 4B1.2(a). See id.

As our sister circuits have held, Hobbs Act robbery sweeps more broadly than all three clauses. While Hobbs Act robbery covers force or threats of force against a person or property , § 4B1.2(a) ’s force clause and the relevant enumerated offenses—robbery and extortion—cover force or threats of force only against persons. See, e.g. , id. ; Eason , 953 F.3d at 1190–96.

B.

1.

The first...