United States v. Webster
| Decision Date | 21 April 2021 |
| Docket Number | Case No. 20-20040-JAR-1-2 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. JAKEL J.M. WEBSTER and JORDEN E. BROWNLEE, Defendants. |
| Court | U.S. District Court — District of Kansas |
Defendants Jakel Webster and Jorden Brownlee were charged in a four-count Indictment with attempted Hobbs Act robbery, in violation of 18 U.S.C. § 1951 (Count 1), and discharging a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) (Count 2).1 This matter is before the Court on Webster's Motion to Dismiss Count 2 of the Indictment (Doc. 26). Brownlee has filed a Motion to Join Co-Defendant Webster's Motion to Dismiss Count 2 of the Indictment (Doc. 27), which the Court grants. Defendants argue that there is no qualifying predicate offense for Count 2 of the Indictment because attempted Hobbs Act robbery is not a "crime of violence" under 18 U.S.C. § 924(c)(3)(A). For the reasons discussed below, the Court denies Defendants' joint motion to dismiss Count 2 of the Indictment.
On July 1, 2020, a grand jury sitting in the District of Kansas returned a four-count Indictment against Webster and Brownlee, charging both Defendants with attempted Hobbs Actrobbery, in violation of 18 U.S.C. § 1951 (Count 1), and discharging a firearm during and in relation to the attempted robbery charged in Count 1, in violation of 18 U.S.C. § 924(c)(1)(A)(iii).2 The Indictment also charged Webster with two additional offenses related to unlawful possession of a firearm.3 Both Defendants were arrested in mid-2020 and have been in custody since.4
On February 19, 2021, Webster filed a Motion to Dismiss Count 2 of the Indictment, and Brownlee moved to join the motion on the same day.5 In the motion, Defendants contend that the Court should dismiss Count 2 of the Indictment because it charges them with using, brandishing, and discharging a firearm "during and in relation to" attempted Hobbs Act robbery, which they argue is not a qualifying predicate "crime of violence" under § 924(c)(3)(A).6 First, they contend that attempted Hobbs Act robbery lacks the requisite element of force to be a crime of violence.7 Defendants identify the two elements of attempted Hobbs Act robbery, namely the specific intent to commit Hobbs Act robbery and the taking of a substantial step in furtherance of that crime, and argue that neither of these elements involves "the use, attempted use, or threatened use of physical force against the person or property of another," as required by § 924(c)(3)(A). Defendants observe that the Tenth Circuit "has often refused to hold that attempt crimes qualify as violent crimes," the constitutionally firm portions of § 924(c) do notencompass attempt crimes, and the "substantial step" required for attempted Hobbs Act robbery can be non-forceful.8
Second, Defendants assert that even if attempted Hobbs Act robbery did contain an element of force, that force is not the "violent" force required for predicate crimes of violence.9 In support, Defendants identify two cases from the Seventh Circuit and one from the Second Circuit in which attempted robbery convictions with no use, attempted use, or threatened use of force occurred.10 Further, they cite a Tenth Circuit case, United States v. Bowen, which held that witness retaliation was not a crime of violence because it could be completed with nonviolent threats to property.11 Contending that attempted Hobbs Act robbery can also involve nonviolent threats to property, Defendants urge the Court to apply the logic of Bowen to the Indictment.12 Finally, they cite a Fourth Circuit case that explicitly held that attempted Hobbs Act robbery was not a crime of violence under § 924(c).13
The government responded, first observing that a majority of the circuit courts that have considered the question have affirmatively determined that attempted Hobbs Act robbery is a § 924(c) crime of violence, including the Third, Sixth, Seventh, Ninth, and Eleventh Circuits.14The government argued:
Although not every act constituting an attempt to commit a crime of violence must itself be violent, a person who takes a substantial step toward committing such an inherently violent offense is properly understood to have at least attempted or threatened the use of violent force within the meaning of § 924(c)(3)(A).15
In sum, the government argues that any attempt to commit Hobbs Act robbery entails an attempt to use the violent force required to complete Hobbs Act robbery, categorically rendering the inchoate attempt crime a predicate crime of violence.16
The Court held a hearing on the motion on March 22, 2021.17
Defendants' motion raises a legal question that is undecided within the Tenth Circuit. Accordingly, some background regarding the Hobbs Act and 18 U.S.C. § 924(c), as well as their intersection in other circuit courts, will be examined before analyzing the matter before the Court.
Section 924 of Title 18 of the United States Code provides penalties for crimes of violence involving firearms. Section 924(c)(1)(A) states: "[A]ny person who, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall [be subject to an additional term of years]." Further, in § 924(c)(3), the statute defines "crime of violence" as any offense that:
Courts call the first clause, § 924(c)(3)(A), the "elements clause," and the second clause, § 924(c)(3)(B), the "residual clause."18
The Tenth Circuit uses the "categorical approach" when deciding whether a predicate offense qualifies as a crime of violence under § 924(c)(3)(b), as long as the statute of conviction is indivisible.19 When a court uses the categorical approach to determine whether the predicate act is a crime of violence, the court looks "only to the fact of conviction and the statutory definition of the prior offense, and do[es] not generally consider the particular facts disclosed by the record of conviction."20 The Supreme Court has described elements as that which the prosecution necessarily must prove at trial or to which the defendant must plead "to sustain a conviction."21 Using the categorical approach, the court compares the "scope of conduct covered by the elements of the crime" with the statute's "definition of crime of violence."22
Examining the elements of attempted Hobbs Act robbery begins with the statute itself. Hobbs Act robbery is defined as follows:
Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in 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 inviolation of this section shall be fined under this title or imprisoned not more than twenty years, or both.23
The Tenth Circuit has held that Hobbs Act robbery is a "crime of violence" under § 924(c)(3)(A).24 This holding remains good law, as the court has confirmed that it was not overruled by Bowen, a case central to Defendants' motion.25
In three unpublished opinions, the Tenth Circuit has reasoned that "when a completed crime has as an element the actual use of physical force, it stands to reason that any attempt to commit that completed crime necessarily has as an element the attempted use of such physical force—thus satisfying the elements clause" of either § 924 or essentially identical portions of other statutes, like 18 U.S.C. § 924(e), known as the Armed Career Criminal Act ("ACCA").26
While the above suggests the Tenth Circuit would hold that attempted Hobbs Act robbery is a "crime of violence" under § 924(c)'s elements clause, it has not yet directly addressed the question and district courts within the circuit have reached conflicting conclusions.27 Fivecircuits have held, to one degree or another, that attempted Hobbs Act robbery is a § 924(c) crime of violence under the elements test, while one has held that it is not.28 The Supreme Court has not yet resolved this split. Of these courts, the Eleventh Circuit's opinions, including a dissent from a denial of rehearing en banc by Judge Jill Pryor, have had a significant influence on subsequent cases.
In United States v. St. Hubert (St. Hubert II), the defendant, Michael St. Hubert, pled guilty to two counts of using, carrying, and possessing a firearm during, in relation to, and in furtherance of a crime of violence under § 924(c).29 For these charges, the predicate crime of violence was Hobbs Act robbery for one count and attempted Hobbs Act robbery for the other.30 St. Hubert appealed, challenging his convictions as unlawful by arguing that the residual clause, § 924(c)(3)(B), was unconstitutionally vague. The Eleventh Circuit held that St. Hubert's convictions were valid regardless of whether a court used the categorical approach or the residual clause to determine whether Hobbs Act robbery and attempted Hobbs Act robbery were qualifying predicate crimes of violence.31 These were independent, alternative bases for its holding affirming St. Hubert's convictions.32
With respect to its analysis of attempted Hobbs Act robbery under the elements clause, which the Eleventh Circuit labeled the "risk-of-force" clause, the court held that, "[l]ike completed Hobbs Act robbery, attempted Hobbs Act robbery qualifies as a crime of violence under § 924(c)(3)(A)'s use-of-force clause because that clause expressly includes 'attempted use' of force."33 A...
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