United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE
matter is before the Court on defendant's motion to
dismiss Count Three of the superseding indictment pursuant to
Federal Rules of Criminal Procedure 12(b)(1) and
12(b)(3)(B)(v). [DE 52]. The government has responded and
this matter is ripe for ruling. For the following reasons,
defendant's motion to dismiss is denied.
August 2, 2016, a federal grand jury indicted the defendant
on three counts: conspiracy to commit Hobbs Act robbery under
18 U.S.C. § 1951 (Count One); Hobbs Act robbery under 18
U.S.C. § 1951 (Count Two); and brandishing a firearm
during and in relation to a crime of violence under 18 U.S.C.
§ 924(c) (Count Three). On January 20, 2017, a federal
grand jury returned a superseding indictment against the
defendant for the same offenses.
6, 2017, defendant filed a motion to dismiss Count Three,
arguing that Hobbs Act robbery categorically fails to qualify
as a crime of violence within the meaning of §
924(c)(3)(A), and that after Johnson v. United
States, 135 S.Ct. 2551 (2015) (Johnson II), the
residual clause of § 924(c)(3)(B) must be held
unconstitutionally vague. The government argues in opposition
that Hobbs Act robbery falls within the definition of crime
of violence set forth in § 924(c)(3), thus the
superseding indictment is valid as written.
individual must have possessed a firearm in furtherance of a
"crime of violence" in order to be convicted under
18 U.S.C. § 924(c). A crime of violence is defined as a
felony that either "has as an element the use, attempted
use, or threatened use of physical force against the person
or property of another, " also known as the force
clause, or "that by its nature involves a substantial
risk that physical force against the person or property of
another may be used in the course of committing the offense,
" also known as the residual clause. 18 U.S.C. §
924(c)(3). The indictment at issue here alleges that the
predicate crime of violence is Hobbs Act robbery as set forth
in 18 U.S.C. § 1951. Defendant argues that Hobbs Act
robbery does not qualify as a "crime of violence"
as a matter of law. The Court declines to adopt
outset, the Court notes that this and other numerous courts
have considered Hobbs Act robbery an appropriate predicate
offense for a violation of the force clause of § 924(c).
See, e.g., United States v. Merinord, No.
5:15-CR-136-BO, 2015 WL 6457166 (E.D. N.C. Oct. 26, 2015);
United States v. Gooch, 850 F.3d 285 (6th Cir.
2017); United States v. Anglin, 846 F.3d 954 (7th
Cir. 2017); United States v. Hill, 832 F.3d 135 (2d
Cir. 2016); United States v. House, 825 F.3d 381
(8th Cir. 2016); United States v. Howard, 650
F.App'x 466 (9th Cir. 2016); In re Chance, 831
F.3d 1335 (11th Cir. 2016); United States v.
Redmond, No. 3:14-CR-226-MOC, 2015 WL 5999317 (W.D.
N.C., Oct. 13, 2015); United States v. Standberry,
3:15-CR-102-HEH, 2015 WL 5920008 (W.D. N.C. October 9, 2015);
United States v. Mackie, No. 3:14-CR-183-MOC, 2015
WL 5732554 (W.D. N.C. Sept. 30, 2015).
argues, and the Court agrees, that the Court should apply the
categorical approach to determine whether a Hobbs Act robbery
falls within § 924(c)'s definition of a crime of
violence. The categorical approach directs courts to look
"only to the statutory definition of the ... crime and
the fact of conviction to determine whether the conduct
criminalized by the statute, including the most innocent
conduct, qualifies as a crime of violence." United
States v. Torres-Miguel 701 F.3d 165, 167 (4th Cir.
2012) (internal citations omitted). "Under that
approach, we consider only the elements of the statute of
conviction rather than the defendant's conduct underlying
the offense." Omargharib v. Holder, 775 F.3d
192, 196 (4th Cir. 2014).
the Court must determine whether the Hobbs Act qualifies as a
crime of violence by evaluating the most innocent conduct
criminalized by its language. Torres-Miguel, 701
F.3d at 167. In pertinent part, the Hobbs Act prohibits
"the 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." 18 U.S.C. §
1951(b)(1). Section 924(c)(3), in turn, requires that a
predicate crime have as an element the use, attempted use, or
threatened use of physical force against the person or
property of another. "Physical force" is defined in
virtually identical statutory context as "force capable
of causing physical pain or injury to another person."
Johnson v. United States, 559 U.S. 133, 140 (2010)
(discussing the force clause of § 924(e)(2)(B)(i))
Court will first address defendant's argument that
robbery by "fear of injury" does not require the
use of physical force. The phrase "fear of injury"
must be read in context with the other language in the
statute. See Id. at 139-40. A commonsense approach
dictates that robbery by fear of injury requires, at minimum,
the attempted or threatened use of force capable of causing
physical pain or injury. Any other result would be contrary
to the plain meaning and common understanding of the words.
See Id. ("Ultimately, context determines
meaning and we do not force term-of-art definitions into
context where they plainly do not fit and produce
nonsense.") (internal quotations and citations omitted).
An act or threatened act that engenders fear of injury
necessarily implies force capable of causing physical pain or
injury. See United States v. Castleman, 134 S.Ct.
1405, 1414-15 (2014); Leocal v. Ashcroft, 543 U.S.
1, 9 (2004). The Court can conceive of no scenario in which a
person commits robbery by fear of physical injury without
threatening physical harm to the person or property of
another-even the vaunted example of poison fails because
still the person must intentionally threaten another with the
forceful physical properties of poison. See
Vargas-Sarmiento v. U.S. Dep't of Justice, 448 F.3d
159, 175 (2d Cir. 2006). Where the victim necessarily
experiences fear of bodily injury or fear of property injury,
by definition, he must experience force capable of causing
Act robbery can also be committed by placing someone in fear
of injury to his property. Defendant argues that Hobbs Act
robbery by fear of injury to property can be committed
without "violent force" against the property, but
Johnson I, which defines physical force, only
discusses injury to a person. See Johnson, 559 U.S.
at 140. The Court declines to extend Johnson's
definition to property injuries, and finds that any Hobbs Act
robbery committed by fear of injury to a person's
property necessarily requires use of force capable of causing
injury to that property. Absent force such force, no person
would fear injury to their property.
Court, therefore, as it has previously and as have the other
courts to consider this issue in the wake of Johnson
II, finds that Hobbs Act robbery contains as an element
the actual, attempted, or threatened use of physical force
against the person of another and is a crime of violence
under § 924(c)(3)(A). As such, the Court declines to