United States v. Robinson
| Decision Date | 19 December 2016 |
| Docket Number | No. 15-1402,15-1402 |
| Citation | 844 F.3d 137 |
| Parties | UNITED STATES of America v. Anthony ROBINSON, Appellant |
| Court | U.S. Court of Appeals — Third Circuit |
Robert Epstein, Esquire, Brett G. Sweitzer, Esquire (Argued), Federal Community Defender Office for the Eastern District of Pennsylvania, 601 Walnut Street, The Curtis Center, Suite 540 West, Philadelphia, PA 19106, Counsel for Appellant
Jeanine Linehan, Esquire, Bernadette A. McKeon, Esquire (Argued), Jordan Strauss, Esquire, Robert A. Zauzmer, Esquire, Office of United States Attorney, 615 Chestnut Street, Suite 1250, Philadelphia, PA 19106, Counsel for Appellee
Before: MCKEE, Chief Judge,* FUENTES and ROTH, Circuit Judges
In this appeal, we are called upon to determine whether Anthony Robinson, when he brandished a firearm in the commission of a Hobbs Act robbery, committed a "crime of violence." On September 17, 2014, Anthony Robinson was convicted of one count, under 18 U.S.C. § 924(c), of brandishing a firearm during the commission of a crime of violence and two counts, under 18 U.S.C. § 1951(a), of Hobbs Act robbery. On appeal, Robinson asks us to overturn his conviction on the § 924(c) offense on the basis that Hobbs Act robbery is not a "crime of violence." We conclude that when, as here, the two offenses, robbery and brandishing a gun, have been tried together and the jury has reached a guilty verdict on both offenses, the Hobbs Act robbery qualifies as a crime of violence under the "elements clause" of 18 U.S.C. § 924(c)(3)(A). Thus, for the reasons stated below, we will affirm Robinson's conviction on all counts. However, with the agreement of the government, we will remand this matter for further proceedings to determine whether Robinson was properly sentenced as a career offender.
On December 1, 2012, Robinson committed two robberies in Philadelphia, approximately two hours apart. In the first of these robberies, Robinson produced a handgun and demanded all of the money in the cash register from the cashier at a Subway sandwich shop. In the second robbery at Anna's Linens store, Robinson again produced a handgun and demanded the money in the register from the store's cashier. Both robberies were recorded by on-site video surveillance cameras.
The next day, the Subway cashier observed Robinson walking on the street and, recognizing him as the perpetrator from the previous day's robbery, immediately notified police. After police recovered surveillance video and compared Robinson's image to that of the robber in the video, Robinson was arrested for the Subway robbery. Suspecting that Robinson might also have been responsible for the Anna's Linens robbery, a Philadelphia Police Detective prepared a photo array that included a photograph of Robinson. The cashier identified Robinson from the array.
On May 9, 2013, a grand jury returned an indictment charging Robinson with two counts of robbery by means of actual and threatened force, violence and fear of injury, by brandishing a handgun, affecting interstate commerce, in violation of 18 U.S.C. § 1951(a), also known as Hobbs Act robbery, and two counts of using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). Prior to trial, Robinson moved to suppress, inter alia , the photo array identification made by the Anna's Linens cashier. This motion was denied. Robinson also submitted a letter to the District Court requesting to proceed pro se . During an ex parte hearing to consider this request, Robinson decided to proceed with counsel. Later, following a hearing on his motion to suppress, Robinson made an oral request to proceed pro se . The court directed Robinson to file a motion. No motion was filed.
Following a two-day trial, Robinson was convicted of both robberies and of brandishing a firearm during and in relation to the Subway robbery. Robinson was sentenced as a career offender based on a 1990 Pennsylvania robbery conviction and a 2009 Maryland carjacking conviction. This appeal followed.
Robinson raises four issues on appeal: (1) his conviction under 18 U.S.C. § 924(c), which requires that Hobbs Act robbery qualify as a "crime of violence" as it is defined therein; (2) the District Court's denial of his motion to suppress the photo array identification; (3) the District Court's failure to conduct a hearing pursuant to Faretta v. California1 in response to Robinson's request to proceed pro se ; and (4) Robinson's "career offender" status, which requires that he have two prior convictions that meet the definition of "crime of violence" set forth in the Sentencing Guidelines, U.S.S.G. § 4B1.1(b). The District Court had jurisdiction over Robinson's case pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 of Robinson's challenges of his conviction and pursuant to 28 U.S.C. § 3742 of Robinson's sentencing challenge. We will focus our discussion on Robinson's challenge of his § 924(c) conviction.
Robinson was convicted under 18 U.S.C. § 924(c) of brandishing a firearm during and in relation to the Hobbs Act robbery of the Subway store. On appeal, Robinson argues that Hobbs Act robbery is not a crime of violence as required for a conviction under § 924(c). Because Robinson raises this issue for the first time on appeal, we will review for plain error.2
These clauses are known as the "elements clause" and the "residual clause," respectively. Robinson asks us to hold that Hobbs Act robbery is not a crime of violence under the elements clause and that the residual clause is void for vagueness in light of the Supreme Court's decision in Johnson v. United States .4 Because we conclude that Robinson's Hobbs Act robbery is a crime of violence under the elements clause, we will not address Robinson's challenge to the residual clause.5
A.
Both Robinson and the government suggest that our analysis under the elements clause should be guided by the so-called "categorical approach." We do not agree that the categorical approach applies here. When the predicate offense, Hobbs Act robbery, and the § 924(c) offense are contemporaneous and tried to the same jury, the record of all necessary facts are before the district court. The jury's determination of the facts of the charged offenses unmistakably shed light on whether the predicate offense was committed with "the use, attempted use, or threatened use of physical force against the person or property of another." The remedial effect of the "categorical" approach is not necessary.
We can best explain our conclusion here by beginning with a review of the origin of and the reasons for the "categorical" approach. The categorical approach emerged as a means of judicial analysis in Taylor v. United States .6 Taylor involved a criminal defendant challenging the imposition of a sentencing enhancement known as the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), which applies when a defendant has three prior convictions for a "violent felony."7 The issue in Taylor was whether two second-degree burglary convictions under Missouri law could be considered violent felonies for the purpose of applying the enhancement. The Taylor Court concluded that only the conviction itself and the statutory definition of the particular offense, and not a description of the defendant's conduct, could be considered in determining whether an offense qualified as a violent felony under the ACCA.8
Taylor 's categorical approach rested on three rationales. First, the language defining "violent felony" in 18 U.S.C. § 924(e)(2)(B) supports the notion that sentencing courts are to look at the offense of conviction itself and not at particular facts of an underlying conviction.9 Second, the legislative history of the ACCA suggests that Congress intended that sentencing courts use a categorical approach.10 Third, a fact-based approach would produce "practical difficulties and potential unfairness."11 Violent felony convictions that are counted for an ACCA enhancement are often adjudicated by different courts in proceedings that occurred long before the defendant's sentencing. In Taylor , the two convictions at issue had been adjudicated in Missouri state courts; the most recent of these convictions had occurred 17 years prior to the proposed application of the ACCA.12 The Taylor Court recognized the challenges in determining the precise facts underlying a defendant's conviction when those facts are not plain from the elements of the offense itself. Determining facts of the earlier conviction could require a sentencing court to engage in evidentiary inquiries based on what occurred at a trial in the distant past.
Since the Court's decision in Taylor , developments in the law have provided an additional reason for avoiding factual inquiries. The Supreme Court has held that a criminal defendant's Sixth Amendment rights are violated when a fact that increases the maximum penalty for a crime is not submitted to a jury.13 As the Court recognized in Shepard v. United States , this principle would extend to determination of facts that render a particular crime a "violent felony" and therefore support application of the ACCA.14
The analysis in Taylor was born from the Court's interpretation of the ACCA's definition of a "violent felony" in 18 U.S.C. § 924(e)(2)(B), which provides in relevant part that a violent felony:
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