United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge
matter is before the court on defendant's motion to
dismiss count three of the indictment, pursuant to Federal
Rule of Criminal Procedure 12(b)(1) and 12(b)(3) (DE 24). The
government has responded in opposition. In this posture, the
issues raised are ripe for ruling. For the following reasons,
defendant's motion is denied.
filed April 27, 2016, charges defendant and a co-defendant
with one count of conspiracy to commit Hobbs Act robbery
under 18 U.S.C. § 1951 (count one); one count of Hobbs
Act robbery under § 1951 (count two); and one count of
using and carrying a firearm in relation to a crime of
violence under 18 U.S.C. § 924(c) (count three).
Defendant moves to dismiss count three, on the basis that the
Hobbs Act robbery named as predicate crime for purposes of
this count in the indictment does not qualify as crimes of
violence under 18 U.S.C. § 924(c)(3), particularly in
light of the Supreme Court's decision in Johnson v.
United States, 135 S.Ct. 2551 (2015).
18 U.S.C. § 924(c), as pertinent here, “any person
who, during and in relation to any crime of violence
. . . uses or carries a firearm, ” is subject to a
sentence to a term of imprisonment of not less than 7 years
if the firearm is brandished. 18 U.S.C. § 924(c)(1)(A)
(emphasis added). For purposes of this subsection the term
“crime of violence” means an offense that is a
felony and -
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
(B) 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.
18 U.S.C. § 924(c)(3). The government argues that the
motion is foreclosed by the court's prior decision in
United States v. Godard, No. 4:16-CR-30-FL-1, 2017
WL 280703 (E.D. N.C. Jan. 20, 2017), where the court held
that Hobbs Act robbery as charged in the instant indictment
qualifies as a crime of violence under both subsection (A)
and (B) of 18 U.S.C. § 924(c)(3). The court agrees.
preliminary matter, the court notes that, prior to
Johnson, the law in this circuit effectively was
settled that Hobbs Act robbery constituted a predicate crime
of violence for purposes of § 924(c)(3). See, e.g.,
United States v. Phan, 121 F.3d 149, 152-53 & n.7
(4th Cir. 1997) (conspiracy to committ Hobbs Act robbery);
see also United States v. Blackman, 746 F.3d 137,
139 (4th Cir. 2014) (affirming conviction for brandishing a
firearm during and in relation to a crime of violence based
on Hobbs Act robbery, with issue not raised); United
States v. Tillery, 702 F.3d 170, 172 (4th Cir. 2012)
now raises the issue whether the reasoning in
Johnson, which held unconstitutional the
“residual clause” in the definition of
“violent felony” in the Armed Career Criminal Act
(“ACCA”), see 135 S.Ct. at 2556-2560,
should apply also to render unconstitutional subsection (B)
in 18 U.S.C. § 924(c)(3). The court is unconvinced,
given significant differences between the text of the
residual clause of the ACCA and § 924(c)(3)(B). The
court recognizes that the Fourth Circuit has not addressed
the question and that there exists a split among other
circuits addressing the viability of § 924(c)(3)(B) and
the similarly-worded 18 U.S.C. § 16(b). The more
persuasive view, however, expressed by the Fifth Circuit
recently en banc, is that Johnson did not by
implication render the language in § 924(c)(3)(B)
unconstitutional. See United States v.
Gonzalez-Longoria, 831 F.3d 670, 675-79 (5th Cir. 2016)
(en banc). Therefore, prior Fourth Circuit precedent applying
§924(c)(3)(B) to Hobbs Act robbery is undisturbed by
addition, turning to subsection (A) of § 924(c)(3), the
court notes that circuit courts addressing the question have
held that Hobbs Act robbery qualifies as a crime of violence
under § 924(c)(3)(A). See, e.g., United States v.
Gooch, 850 F.3d 285, 292 (6th Cir. 2017) (“We join
our sister circuits in ruling that Hobbs Act robbery
constitutes a crime of violence.”); United States
v. Anglin, 846 F.3d 954, 965 (7th Cir. 2017) (same);
United States v. Hill, 832 F.3d 135, 140-42 (2d Cir.
2016) (holding that Hobbs Act robbery is a crime of violence
under § 924(c)(3)(A)); United States v.
Robinson, 844 F.3d 137, 141 (3d Cir. 2016) (same);
United States v. House, 825 F.3d 381, 387 (8th Cir.
2016) (same); United States v. Mendez, 992 F.2d
1488, 1491 (9th Cir. 1993) (same); In re Chance, 831
F.3d 1335, 1337-38 (11th Cir. 2016) (same). Although the
Fourth Circuit has not addressed this issue, multiple courts
in this circuit and in this district have held that Hobbs Act
robbery qualifies as a crime of violence under §
924(c)(3)(A). See, e.g., United States v. Hancock,
168 F.Supp.3d 817, 824 (D. Md. 2016); United States v.
McDaniels, 147 F.Supp.3d 427, 434 (E.D. Va. 2015);
Godard, 2017 WL 280703.
court rejects defendant's argument that United States
v. Torres-Miguel, 701 F.3d 165, 167 (4th Cir. 2012) is
controlling. As an initial matter, the holding in
Torres-Miguel is not binding, given that
Torres-Miguel did not address Hobbs Act robbery, but
rather a prior California criminal conviction for a criminal
threat, and it did not address § 924(c)(3)(A), but
rather U.S.S.G. § 2L1.2. See 701 F.3d at 169.
Moreover, the reasoning in Torres-Miguel is not
persuasive, given the reasoning of subsequent authority set
forth above, addressing the scope of § 924(c)(3)(A).
Hobbs Act robbery qualifies as a predicate “crime of
violence” under § 924(c)(3), supporting the charge
of using and carrying a firearm in relation to a crime of
violence as charged in count three of the instant indictment.