United States v. Scott

• Decision Date: 22 September 2021
• Docket Number: No. 20-1514,20-1514
• Citation: 14 F.4th 190
• Parties: UNITED STATES of America v. Eric SCOTT, Appellant
• Court: U.S. Court of Appeals — Third Circuit

14 F.4th 190

UNITED STATES of America

v.Eric SCOTT, Appellant

No. 20-1514

United States Court of Appeals, Third Circuit.

Argued January 13, 2021

Filed: September 22, 2021

Christy Martin, Brett G. Sweitzer [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

Jason Bologna, Robert A. Zauzmer [ARGUED], Office of United States Attorney, 615 Chestnut Street – Suite 1250, Philadelphia, PA 19106, Counsel for Appellee

Before: AMBRO, KRAUSE, and PHIPPS, Circuit Judges.

OPINION OF THE COURT

KRAUSE, Circuit Judge.

This appeal requires us to decide whether Hobbs Act robbery is a "crime of violence" under the career offender provision of the United States Sentencing Guidelines. U.S.S.G. § 4B1.2(a). To answer that question, we must apply the oft-bedeviling categorical approach and compare the statutory offense with the definition of "crime of violence" found in the Guidelines. We now hold, along with every Court of Appeals to address the issue, that Hobbs Act robbery sweeps more broadly than the career offender guideline and therefore does not qualify as a crime of violence. Given both the text of the Guidelines and the consensus of the Courts of Appeals, we also conclude that—at least as of the disposition of this appeal—the error qualifies as plain. We will vacate Appellant Eric Scott's sentence and remand for resentencing.

I. Factual and Procedural Background

In February 2020, Scott was sentenced for possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). In anticipation of sentencing, the United States Probation Office prepared a Presentence Report (PSR) that included a career offender enhancement under U.S.S.G. § 2K2.1(a)(2), which applies if a defendant "committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense." Here, two prior convictions formed the basis for that enhancement: a 2019 conviction for possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1), and a 2019 conviction for Hobbs Act robbery in violation of 18 U.S.C. § 1951(b)(1) and for using and carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). The PSR assigned an enhanced base offense level of 24 pursuant to U.S.S.G. § 2K2.1(a)(2). The proposed total offense level carried with it an advisory guideline range of 84–105 months in prison.

Of relevance to this appeal, neither Scott nor the Government challenged the enhancement or any of the calculations in the PSR before the sentencing court. Instead, Scott sought a sentence of 84 months—the bottom of the Guidelines range—to run concurrently with a previously imposed 70-month sentence, and the Government disagreed only in that it sought a term consecutive to the other federal sentence. The District Court adopted the PSR's conclusions and sentenced Scott to 90 months’ imprisonment consecutive to the existing sentence, three years of supervised release, and a $100 special assessment.

On appeal, Scott argues that it was reversible error to sentence him as a career offender because Hobbs Act robbery is not a "crime of violence" as defined in the federal Sentencing Guidelines. We now turn to that question.

II. Discussion

The District Court exercised jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), as this case presents an appeal of a sentence imposed under the Sentencing Reform Act of 1984. Whether an offense qualifies as a crime of violence under the Sentencing Guidelines is a legal question that this Court typically reviews de novo. United States v. Henderson , 841 F.3d 623, 626 (3d Cir. 2016). Because Scott raises this issue for the first time on appeal, however, we review it for plain error. United States v. Couch , 291 F.3d 251, 252–53 (3d Cir. 2002). We must decide, in other words, whether (1) the conclusion that Hobbs Act robbery constitutes a crime of violence was error and, if so, whether the error (2) is "plain," (3) "affect[s] substantial rights," and (4) "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." United States v. Olano , 507 U.S. 725, 732–36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (alterations in original) (citations omitted); Fed. R. Crim. P. 52(b). Scott has the burden of demonstrating each. Olano , 507 U.S. at 734–35, 113 S.Ct. 1770.

We address whether it was error to deem Hobbs Act robbery a crime of violence under U.S.S.G. § 2K2.1(a)(2), and because we conclude that it was, we then consider whether the remaining Olano factors are met. Id. at 734, 113 S.Ct. 1770.

A. Hobbs Act Robbery is Not a Crime of Violence Under the Guidelines

We begin by applying the now-familiar categorical approach to determine whether Scott's Hobbs Act robbery conviction qualifies as a predicate "crime of violence" for the purposes of a career offender enhancement. Notwithstanding the bizarre results it sometimes produces, this analytical framework compels us to look "not to the facts of the particular prior case," but to the statutory definition of the crime of conviction. Moncrieffe v. Holder , 569 U.S. 184, 190, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) (internal quotation marks omitted). We compare the scope of the conduct covered by the elements of Hobbs Act robbery with the definitions of "crime of violence" found in the Sentencing Guidelines to determine "if the statute's elements are the same as, or narrower than, those of the generic offense." Descamps v. United States , 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). But if "the least culpable conduct hypothetically necessary to sustain a conviction under the [Hobbs Act]," United States v. Dahl , 833 F.3d 345, 350 (3d Cir. 2016) (citation omitted), would not be a crime of violence under the Guidelines, then any "conviction under that law cannot count as a[ ] [‘crime of violence’] predicate," Descamps , 570 U.S. at 261, 133 S.Ct. 2276. Under the categorical approach, "a prior crime [will] qualify as a predicate offense in all cases or in none." Id. at 268, 133 S.Ct. 2276.

Under the Sentencing Guidelines, a statutory offense can qualify as a "crime of violence" under Section 4B1.2(a)(1), which encompasses statutes having "as an element the use, attempted use, or threatened use of physical force against the person of another" (the "Elements Clause"), or Section 4B1.2(a)(2), which lists particular offenses deemed "crimes of violence" for Guidelines purposes (the "Enumerated Offenses Clause"). Hobbs Act robbery satisfies neither.

A plain reading of the text demonstrates that the definition of "crime of violence" in the Guidelines covers the use of force or threats of force only against persons, see U.S.S.G. § 4B1.2(a), so there can be no categorical match with Hobbs Act robbery, which by its terms includes crimes against property, see 18 U.S.C. § 1951(b)(1). In so holding, we join the chorus of voices concluding that Hobbs Act robbery is not categorically a crime of violence under the Guidelines.¹ See United States v. Prigan , 8 F.4th 1115, 1119–22 (9th Cir. 2021) ; United States v. Green , 996 F.3d 176, 181 (4th Cir. 2021) ; Bridges v. United States , 991 F.3d 793, 801 (7th Cir. 2021) ; United States v. Eason , 953 F.3d 1184, 1189–93 (11th Cir. 2020) ; United States v. Camp , 903 F.3d 594, 600–04 (6th Cir. 2018), cert. denied , ––– U.S. ––––, 139 S. Ct. 845, 202 L.Ed.2d 613 (2019) ; United States v. O'Connor , 874 F.3d 1147, 1153–58 (10th Cir. 2017) ; see also United States v. Edling , 895 F.3d 1153, 1157–58 (9th Cir. 2018) (reaching the same conclusion when analyzing a state statute identical to Hobbs Act robbery in all relevant respects).

1. Hobbs Act Robbery Does Not Satisfy the Elements Clause

We need not tarry long over the Elements Clause. That clause defines crimes of violence as those offenses that have "as an element the use, attempted use, or threatened use of physical force against the person of another." U.S.S.G. § 4B1.2(a)(1). Hobbs Act robbery, on the other hand, means "the unlawful taking from the person of another ... by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property." 18 U.S.C. § 1951(b)(1). Because the Elements Clause restricts the object of the use of force to "the person of another," whereas Hobbs Act robbery extends to the use of force against the "person or property" of another, even the Government concedes the elements are not a categorical match.

2. Hobbs Act Robbery Also Sweeps More Broadly than Robbery Under the Enumerated Offenses Clause

To ascertain if a felony qualifies as a crime of violence under the Enumerated Offenses Clause, we disregard the label on the offense and " ‘look to whether the conduct necessarily proven as a prerequisite’ for the defendant's conviction under the statute is ‘a natural equivalent to the offense as envisioned by the Guidelines’ drafters.’ " Eason , 953 F.3d at 1193 (citation omitted). The Government points to "robbery" as one natural equivalent among the enumerated offenses. Again, however, it is not a categorical match for the simple reason that Hobbs Act robbery reaches force against property, while guidelines robbery does not.

Because the Guidelines do not define "robbery," we revert to its generic meaning, see United States v. Graves , 877 F.3d 494, 501–02 (3d Cir. 2017), which is "the taking of property from another person or from the immediate presence of another person by force or by intimidation," United States v. McCants , 952 F.3d 416, 428–29 (3d Cir. 2020). Although the taking itself requires "no more than de minimis force," we have previously recognized that such use of force necessarily "implies personal violence." Graves , 877 F.3d at 502–03 ; see also Camp , 903 F.3d at 601–02 ; O'Connor , 874...