United States v. Pena, 161 F. Supp. 3d 268

Background

Defendant Alberto Pena indicted for Hobbs Act robbery and for brandishing a firearm in relation to a crime of violence under 18 U.S.C. § 924(c)(1)(A)(ii) & 2; trial scheduled and Pena moved to dismiss the § 924(c) count.
Government alleges a violent home-invasion robbery in the Bronx in January 2014 during which firearms were brandished.
Pena argues Hobbs Act robbery is not a "crime of violence" under § 924(c)(3)(A) (the Force Clause); he also contends the Residual Clause is void for vagueness post-Johnson (2015).
The Court applies the categorical approach (and explains when the modified categorical approach would be relevant) to determine whether Hobbs Act robbery necessarily involves the use, attempted use, or threatened use of physical force.
Key legal question: whether the Hobbs Act’s terms "force" and "fear of injury" can be satisfied by conduct that falls short of the § 924(c) definition of "physical force," as interpreted in this circuit.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Hobbs Act robbery is a "crime of violence" under § 924(c)(3)(A) (Force Clause)	Gov't: Hobbs Act robbery necessarily involves use/threat of physical force and thus qualifies	Pena: "force" in Hobbs Act can mean minimal/offensive touching; "fear of injury" can be non‑forceful or unintentional — so Hobbs Act robbery may not meet § 924(c) force	Held: Hobbs Act robbery is a crime of violence under the Force Clause; the Hobbs Act requires force sufficient to meet § 924(c) force
Meaning of "physical force" for § 924(c)(3)	Gov't: follow Second Circuit ordinary meaning: "power, violence, or pressure" directed at person or thing	Pena: urges adoption of Johnson (2010) heightened "violent/strong force" standard (force capable of causing physical pain or injury) and narrower reading	Held: Court adopts Second Circuit’s ordinary meaning (power, violence, or pressure); Johnson (2010) is compatible but does not displace the circuit definition here
Scope of "fear of injury" in Hobbs Act	Gov't: "fear of injury" should be read in context to mean fear of injury from force/threat of force	Pena: "fear of injury" can encompass threats or harms not involving force (e.g., economic harms, omissions) or unintentional intimidation	Held: "fear of injury" is best read (noscitur a sociis) to mean fear of injury from the use or threat of force; hypothetical non-force examples do not show a realistic probability Hobbs Act would apply
Whether Court must decide Residual Clause vagueness challenge	Pena: Residual Clause is void for vagueness post-Johnson (2015) so Hobbs Act cannot qualify under Residual Clause	Gov't: alternative is Force Clause; case can be resolved on that ground	Held: Court does not reach Residual Clause vagueness because it finds Hobbs Act robbery qualifies under the Force Clause

Key Cases Cited

United States v. Aleynikov, 676 F.3d 71 (2d Cir. 2012) (construction of federal statutes is a question of law; Rule 12 motion context)
United States v. Acosta, 470 F.3d 132 (2d Cir. 2006) (Second Circuit applies categorical approach and treats § 16 precedents as relevant to § 924(c)(3))
Gonzales v. Duenas‑Alvarez, 549 U.S. 183 (2007) ("realistic probability" standard for categorical approach)
Santana v. Holder, 714 F.3d 140 (2d Cir. 2013) ("force" defined as "power, violence, or pressure" for § 16 analysis)
Johnson v. United States, 559 U.S. 133 (2010) (ACCA force‑clause analysis: "physical force" requires "violent/strong force")
Johnson v. United States, 576 U.S. 591 (2015) (holding ACCA Residual Clause void for vagueness; prompted challenges to similar residual clauses)
Descamps v. United States, 570 U.S. 254 (2013) (modified categorical approach for divisible statutes)
Leocal v. Ashcroft, 543 U.S. 1 (2004) ("use" in force clause requires active employment of force; higher mens rea than negligence)
United States v. DiSomma, 951 F.2d 494 (2d Cir. 1991) (recognizing violence or threat of violence as element of Hobbs Act robbery)