*1
(1996);
671-72
CONCLUSION Strong’s
We have considered other ar-
guments they with- conclude are judgment
out merit. The District
Court is AFFIRMED.
UNITED STATES America
Anthony ROBINSON, Appellant
No. 15-1402 Appeals, Court of States
Third Circuit.
Argued April
(Opinion December filed: *2 during a firearm the commis- counts,
sion of a crime of violence and two § 1951(a), of under 18 U.S.C. robbery. On appeal, Robinson us to asks of- overturn on the conviction *3 on the fense basis that Hobbs Act is not a of “crime We violence.” conclude here, when, offenses, the rob- two bery brandishing gun, and a have been together jury tried reached a offenses, guilty verdict on both the Hobbs robbery qualifies as a crime of violence , the “elements of clause” 924(c)(3)(A).Thus, for the reasons stated below, we will affirm Robinson’s conviction However, on all agree- counts. with the government, of ment we will remand for proceedings this matter further to de- Epstein, Esquire, Robert Brett G. was properly termine Robinson Sweitzer, (Argued), Esquire Federal Com- sentenced as a career offender. munity Office for the Defender Eastern Pennsylvania, of District Walnut
Street, West, Center, The Curtis Suite 540 I. 19106, Philadelphia, Appel- PA for .Counsel 1, 2012, On December Robinson commit- lant Philadelphia, ted in approxi- two robberies Linehan, Esquire, Jeanine Bernadette apart. two mately hours first McKeon, Esquire (Argued), A. Jordan robberies, produced Robinson these Strauss, Zauzmer, Esquire, Es- Robert A. handgun demanded all of money quire, Attorney, Office of United States from register cash cashier at a Street, 1250, 615 Chestnut Suite Philadel- Subway shop. In the sandwich rob- second 19106, Appellee PA phia, for Counsel store, bery at. Linens Anna’s Robinson again produced handgun and demanded McKEE, Judge,* Before: Chief money register from the store’s ROTH, Judges FUENTES and Circuit Both cashier. were robberies recorded cameras. on-site video surveillance OPINION Subway day, next ob The cashier ROTH, Judge: Circuit walking served Robinson on the street and, appeal, upon perpetrator In this are him recognizing called as the Robinson, Anthony previous day’s robbery, from the determine whether immedi police he com- After ately police. when brandished firearm the notified recovered robbery, compared a Hobbs Act commit- surveillance video Robin mission image to that of September a “crime of violence.” On son’s the robber ted 2014, video, Anthony was convicted Robinson arrested was Sub count, 924(c), robbery. Suspecting that Robinson way one under 18 U.S.C. * Judge September Judge Judge McKee Chief at the his term as Chief was time Judge appeal argued. completed McKee n therein; (2) the District it defined responsible bee also have
might suppress of his motion Po Court’s denial Philadelphia Anna’s Linens identification; (3) array Dis photo array that photo prepared lice Detective hearing trict Court’s failure conduct Robinson. The photograph included re pursuant Faretta array. from the identified Robinson California1 cashier request proceed sponse to Robinson’s jury May grand returned On se; (4) pro Robinson’s “career offend charging Robinson with an indictment status, have two requires er” he robbery by means actual and counts prior convictions that meet the definition force, inju- fear violence in the set forth “crime .violence” handgun, ry, affecting Guidelines, Sentencing U.S.S.G. commerce, in violation interstate 4B1.1(b). juris had District Court *4 1951(a), § also known as Hobbs Act U.S.C. to pursuant Robinson’s case diction over using of and car- two counts and jurisdiction § 18 3231. We have U.S.C. during a and relation a rying firearm § 1291 of Robinson’s pursuant violence, in of 18 U.S.C. cidme of violation pursuant of and challenges his conviction 924(c). trial, § Prior to Robinson moved § of to 28 Robinson’s sentenc U.S.C. 3742 alia, array photo iden- suppress, inter our ing challenge. We will focus discussion cash- by the Anna’s Linens tification made § his challenge on Robinson’s also This motion was Robinson ier. denied. conviction. letter to the District submitted a During se. an ex requesting proceed pro III.
parte hearing request, to consider this Robinson convicted under 18 was proceed Robinson with counsel. decided 924(e) § firearm U.S.C. Later, following hearing on motion to during Act and relation the Hobbs request suppress, Robinson made an oral Subway robbery appeal, of the store. On pro se. court directed. proceed The Rob- argues Robinson that Hobbs inson to file a motion. No motion was filed. required for is not a crime violence as 924(c). § Robin conviction under Because trial,
Following two-day was first on son raises issue time convicted both robberies and brand- appeal, plain will review for error.2 we ishing during a firearm relation to Subway robbery. sen- Robinson was 924(c)(3) defines a “crime U.S.C. on as a career offender based tenced felony that violence” Pennsylvania robbery conviction (A) use, attempt- has as an element the carjacking conviction. Maryland use, or of physical ed threatened use appeal This followed. against person property force another, or
II. (B) nature, that its involves a sub- appeal: four issues Robinson raises physical against stantial risk force that ( U.S.C. his conviction under 18 of another 924(c), requires committing which be in the used course robbery qualify as a of violence” as offense.3 “crime 924(c)(3)(A)-(B). 3. 18 45 L.Ed.2d U.S.C. Saada, United States v. 2000). as the “categorical” ap These clauses are known “elements reasons for the clause,” respec proach. categorical approach clause” and the emerged “residual tively. judicial analysis us to Robinson asks hold as a means in Taylor v. a crime of vio Hobbs Act is not Taylor United States.6 involved a criminal lence clause challenging imposition under elements for vagueness clause is void residual enhancement known as the light (ACCA), of the Court’s decision Armed Career Criminal Act 924(e), Johnson United States.4 Because we applies when de Hobbs Act rob prior conclude has three for a fendant convictions bery is a crime of felony.”7 violence under the ele Taylor “violent The issue in clause, second-degree ments will address Robin con burglary challenge son’s to the residual clause.5 law con victions Missouri could be sidered violent purpose felonies
A. applying Taylor the enhancement. The Court concluded that the conviction government sug- Both Robinson and the statutory itself and the definition of the gest analysis our under the elements offense, particular description guided clause should be the so-called conduct, the defendant’s could be consid “categorical approach.” We do not agree *5 in whether determining ered an categorical that offense approach applies the here. qualified felony as a offense, violent under the predicate the When 924(c) ACCA.8 § con- robbery, and the offense are
temporaneous jury, and tried the same Taylor’ categorical approach s on rested necessary of the all facts record are before First, language three rationales. the defin the court. jury’s The determination district in ing felony” “violent of the of charged facts the offenses unmis- 924(e)(2)(B) § supports the that notion takably light shed on the predi- whether sentencing look courts are to at the offense use, cate offense committed with “the of itself and not at particular conviction use, or of attempted physi- threatened use Second, underlying facts of an conviction.9 against or cal force legislative sug history the ACCA another.” The remedial effect the “cate- gests Congress that intended that sentenc gorical” approach necessary. is not approach.10 courts use explain Third, pro
We can best our conclusion here approach a fact-based would by beginning with a of the origin “practical potential review duce difficulties and - U.S. -, 2551, properly 4. 192 L.Ed.2d predicate serve as a offense. Resolu- (2015). distinguishable 569 tion here is it does prior require con- consideration state viction. argues Appellant 5. in that our recent decision Gen., 601, Baptiste Attorney 841 611 6. S.Ct. L.Ed.2d application our forecloses of 18 924(c)'s Although clause. U.S.C. residual rely re- we do not on the residual clause to case, 7. Id. at S.Ct. 2143. Baptiste solve this we note is not necessarily applicable Baptiste, here. In 602, 110 2143. pri- at S.Ct. Court whether the Id. considered defendant’s predicate vio- state conviction constituted here, 600-01, however, inquiry lent Our 9. Id. at offense. asks S.Ct. contempo- a federal that was offense possession may raneously tried with at Id. S.Ct. felony” support “violent felony and. therefore Violent convictions
unfairness.”11
of the ACCA.14
application
ACCA
counted
enhance
are
adjudicated by
are
different
ment
often
in
analysis
Taylor was born from
The
long
proceedings
in
occurred
courts
interpretation of
the Court’s
the ACCA’s
Tay
sentencing.
before
defendant’s
felony” in 18
of “violent
definition
been
lor,
at
convictions
issue had
in
924(e)(2)(B),
provides
relevant
court's; the
adjudicated in Missouri state
felony:
part
a violent
oc
convictions had
most recent
these
(i)
use, attempted
as an element the
ap
years
prior
proposed
curred
use,
of physical
force
Taylor
the ACCA.12
plication
another; or
against
person of
challenges
determining
in
recognized extortion,
(ii)
arson, or
burglary,
in-
underlying
facts
defendant’s
precise
explosives,
other-
volves the use
plain
those
are
facts
conviction when
presents a
wise
conduct that
involves
itself.
from
elements
offense
physical injury
risk
anoth-
serious
Determining facts
the earlier conviction
er.,..15
require
engage
could
court
Although Taylor
focused on whether
oc
inquiries
in
based on
evidentiary
what
burglary
qualify
would
Missouri
conviction
past.
a trial
the distant
curred
“burglary”
under the second clause of
Taylor,
the Court’s decision
“enumerated
Since
definition—the
offenses”
of the
justification
cat-
provided
an clause—the Court’s
developments
the law have
complete
egorical approach relied
in-
avoiding
reason for
additional
factual
924(e)(2)(B).16
Consequent-
definition
quiries. The
Court has held
ly,
categorical approach
ap-
has been
a criminal
Sixth
defendant’s
Amendment
'
plied both to' the other clauses
*6
in-
rights are violated
a fact
when
felony” definition as
ACCA’s “violent
well
the
crime
penalty
maximum
a
creases
as
of similar terms
mir-
to definitions
As
jury.13
is not submitted to a
the Court
language.17
ror
much
the ACCA’s
States,
recognized
Shepard,
in
v. United
principle
Despite
unequivocal language
this
would extend
determina-
the
ani-
mating
categóri-
the decisions
the
particular
applying
tion of facts that render a
(2 601-02,
categorical
(applying
approach un
at
110
2143.
11.
Id.
S.Ct
924(e)(2)(B)(i));
§
18
der
U.S.C.
v.
Moncrieffe
578,
at
Id.
110
12.
S.Ct 2143.
—
1678, 1684,
Holder,
U.S. —,
133 S.Ct.
(describing
application
185
727
the
L.Ed.2d
227,
States,
243
Jones v.
526 U.S.
13.
categorical
approach
determine
the
L,Ed.2d
n.6,
1215,
(1999);
119 S.Ct
143
311
“aggravated
particular crime is
466, 490,
Apprendi
Jersey,
v.
530 U.S.
New
felony"
Immigration
the
Nationali
under
L,Ed.2d
2348,
S.Ct.
435
120
147
1, 9-11,
Act);
Ashcroft,
ty
543-U.S.
Leocal v.
13, 24,
1254,
377,
(2004) (apply
544 U.S.
161
125
24.
18 U.S.C.
26.
Faretta,
806,
Moncrieffe,
27.
422 U.S.
A. shirts” in the other photographs. We see no indication that the District ruling on the admis We review Court clearly erred reaching conclu- testimony sion identification abuse sion. eyewitness An discretion.28 identification proce
that arises from identification Robinson raises for the first time is unnecessarily suggestive dure that appeal on additional arguments that carries substantial risk of misidentifica array unduly suggestive was suppressed tion be Due size, of its because most of the other indi Process the Fifth clause Amendment.29 complexions viduals have darker than Rob seeking suppress A defendant identifica inson, and because his photograph was one testimony proving has the tion burden only gray that facial hair. How procedure that the identification used was ever, a suppression argument raised suggestive.30 unnecessarily sugges “The appeal the first on time is waived absent array tiveness of a photographic depends good cause.33 Robinson not demon .has factors, several including the size of the good cause for strated his failure to raise manner, array, presentation, its and its arguments, these so we will not consider If prejudice contents. there is no in the them. presentation, ques manner of primary Because District suspect’s Court tion is so did clear- picture ly err suggests from the rest it and because Robinson’s different that additional culpability.”31 finding arguments waived, We review have been we will af- array unnecessarily photo sugges firm was the District Court’s dismissal of Rob- tive for clear error.32 suppression inson’s motion. argued before the District photo array identify
Court
B.
used
unduly suggestive
him was
because Robin-
next turn to
We
al
Robinson’s
photo
“noticeably lighter
son’s
than
legation
the District
erred
the others”
and Robinson was “the
failing
inquiry
conduct Faretta
follow
wearing
individual
a shirt with a collar.”
requests
pro
to proceed
se.
The District
Court concluded
these We
a claim
plenary
exercise
review of
“slight”
differences were
were not un-
ruling
a District Court’s
violated
defen
duly suggestive. The
in lighting
difference
right
self-representation.34
dant’s
range
was found to
“within
be
varia-
photographs,
tion of all the
The Sixth Amendment
some which
affords
others,”
right
are darker
all criminal
“to
than the
while the
defendants
have
of a collar
presence
not stand out
the Assistance
Counsel” for their
did
def
among
right
corollary
the “variation
necklines of the
ense.35 This
“carries
its
131,
122,
Brownlee,
Burnett,
v.
28. United States
454 F.3d
32. United
v.
F.3d
States
2006).
(3d
(3d
2014).
Cir.
Cir.
Brownlee,
Rose,
at 137.
33. United States v.
538 F.3d
(3d
Cir.
Lawrence,
v.
30. United States
349 F.3d
(3d
2003).
Peppers,
Cir.
34. United
v.
302 F.3d
12
States
7 (3d
2002).
Fulcomer,
Reese
946 F.2d
*9
1991).
35. U.S. Const. Amend. VI.
proceed
to
requested
se.”36 The Su
Robinson
proceed pro
to
right
the first
se on
occasions. On
pro
contours
occa
Court addressed
preme
right
self-representation
sion,
request
to
was
the,
made
defendant’s
when
California,
motion,
the Court
Faretta v.
where
Court held
District
written
language
spirit
emphasized that “[t]he
hearing
Robinson’s under
ascertain
to
that
contemplate
of the
Amendment
Sixth
surrounding his
standing
law
counsel,
guaran
other
tools
like
defense
hearing,
midst of this
Rob
charges. In the
Amendment,
court,
to
shall
an aid
be
teed
that he
de
informed
had
inson
an
of the
organ
willing defendant—not
to
cided
retain counsel.
While
unwilling
an
de
interposed
State
between
hearing
the District
suggests that
Court’s
to
himself
right
and his'
fendant
defend
s
“ac
him to
“coercive” and caused
wa
However,
a defen
personally.”37
retaining
representation,
quiesce” to
represent
to
himself re
who chooses
dant
that
District Court
record shows
the-
come
linquishes a
that
number
benefits
informing
risks of
Robinson of the
self-
counsel, any
defen
with the assistance
lawyer
his
noted
was
representation,
pro
must
seeking to
se
proceed
dant
experienced
lawyer
defense
well-versed
relinquish
“knowingly
intelligently”
sought
that Robinson
to raise.
the issues
Courts have
the assistance
counsel.38
exactly
This is not coercive. It is
what
in
to
responsibility
“Faretta
engage
adjudicating a
to do
required
court is
when
re
that a defendant’s
quiry” to determine
request to
without counsel.40
proceed
se has
made
quest
proceed pro
been
intelligently.
request
In United
Robinson’s second
came follow-
knowingly and
re
Peppers,
set forth
hearing
States v.
we
three
on Robinson’s motion
concluded,
before a
quirements that must be satisfied
suppress.
hearing
As the
Rob-
represent
may
himself:
defendant
had a motion to
inson announced
he
file,
his de-
counsel confirmed
1. The defendant must assert
his
clearly
proceed
and un- notice
proceed pro
sire to
se
that Robinson wished
equivocally.
addressing Robin-
se. Rather
than
pro
se,
proceed pro
the Court
thoroughly
son’s desire
inquire
court
2. The
must
any
file
requested
un-
that counsel
relevant
satisfy
itself
in-
charges,
Although
the motion.
counsel
of the
derstands
nature
potential
she
range
possible punishments,
formed the court that
would file
defenses,
motion,
that the de-
problems
technical
no motion was filed. When Robin-
encounter,
any other
began,
fendant
ad-
son’s trial
Robinson’s counsel
general
important to a
facts
understand-
no out-
court that
there
vised the
were
ing of the risks
facts,
involved.
standing
Given these
issues.
expressed
that Robinson
say
assure
3. The court must
itself that
cannot
“clearly
un-
proceed pro
trial.39
se
competent
defendant is
stand
desire
(internal
Peppers,
quota-
302 F.3d
Peppers,
at 129.
omitted).
tions and citations
806, 820,
S.Ct.
L.Ed.2d
proper
(noting
40. See
at 133
Faretta
id.
forewarning
inquiry requires “specific
of the
2525;
see Johnson
Id. at
S.Ct.
repre-
foregoing counsel’s trained
464-65,
risks that
Zerbst, 304 U.S.
entails.”).
(1938)
sentation
(holding
a waiver
C. meaning violence” within of Section 924(c). appeal final is Robin- finding categorical ap- issue After here, proach unnecessary to his challenge majority son’s classification af- as 924(c) Section firms Robinson’s Sentencing “career offender?’ under conviction Robinson was simultaneously con- Because Robinson not ob- did Guidelines. victed firearm while com- ject sentencing, his classification mitting robbery.3 depart I inadequate is an there review record categorical ap- from the majority conceded, government this claim. The proach should not be when con- used however, issue whether Robin- victions are simultaneous. should, qualifies son a career offender justice, the interests of be remanded Instead, I in Congress conclude that the District determine tended for courts use the provision career offender under approach to is or determine what is not a § applies. agree. 4B1.1 U.S.S.G. We 924(c). “crime violence” under Section .of This both Robin position is advocated Accordingly, we will remand the case government, son and consistent sentencing proceedings. further opinion recent with Court’s v. Mathis United States and decisions y. circuits who con our sister have been question.4 fronted with the same above, For the we will reasons stated affirm Robinson’s convictions under I. 1951(a). However, we will remand the case further my view, Congress intended Section proceedings so that the District Court 924(c)(3) to of violence” in “crime define if prior determine convictions statutory elements of the contem terms conviction, crimes of poraneous were career rather than terms violence guideline. underlying conduct of the offender the actual — -, States, United Id. at 132. 4.See Mathis v. (2016); 195 L.Ed.2d Unit- 1951(a). 1. 18 U.S.C. 2016); Hill, Cir. ed v. F.3d 135 States Howard, Fed.Appx. States 924(c). 2. 18 U.S.C. (9th (unpublished). Maj. Op. at 143-44. *11 148 924(c)(3)(A) Here, by likewise de- analysis guided the Section My
defendant.
felony
that
“crime
violence” as
fines
Taylor
decision
Supreme Court’s
use,
use, attempted
the
“has as an element
case,
the
States.5
physical force against
or threatened use
“intended the
Congress
found that
another,”
refer-
the
only to
fact
to look
court
elements,
ring
rath-
to the statutory
courts
had
convicted
that the defendant
been
er,
Moreover,
underlying
to the
facts.
than
categories,
falling
crimes
within certain
924(c)
history of
legislative
Section
underlying
prior
and not
the facts
congressional
similarly evinces
intent
sen
convictions”6 to determine whether
categorical
violence in a
crime
define
apply under
tencing enhancements
in a
way
way.
than
factual
rather
(“ACCA”),
Criminal
Armed Career
924(c)
discussion of
report
Senate
Section
924(e).
rea
It
for three
did so
precise of-
comments
included
on
sons.
“crime[s]
fenses are
violence” under
statute,
quali-
facts
but never which
would
First,
text of
the Court found
fy-a
“crime of
conviction as a
violence”
924(e)
categorical
supports such
Section
disqualify the
con-
which facts would
same
approach by referring
persons
have
who
viction.11
convictions ...
for a vio
previous
“three
agree
I
majority
with
some
offense,”7
drug
felony
lent
or a serious
un
“practical
potential
difficulties and
have committed
persons
rather than
who
approach
factual
fairness”
concerns
offenses,
drug
violent felonies or serious
Taylor
present
are not
in this
present
felony”
“any
by defining
as
“violent
Here,
simultaneously
case.
by imprisonment
punishable
crime
of both Hobbs Act
convicted
‘has
ele
year
than
as an
more
924(c),
which we can surmise
Section
from
that, in a
any
particular
ment’—not
crime
speculation that
without
brandished
he
use
threat of force.”8
case involves—the
committing the
But I
gun while
robberies.
Second, legislative history is consistent
disagree that
alone
renders
though
approach
with such an
“unnecessary”
categorical approach
what
there was “considerable debate over
statutory language
legisla
when the
include and how 'to
kinds
offenses
history
Taylor
tive
clear as those
are as
suggested that
them ... no one
define
Congress
intended courts
utilize a
particular
might
count
crime
sometimes
approach
determining which
not,
towards enhancement and sometimes
crimes
are “crimes
violence.” Further
depending
the facts of the case.”9
on
more,
taking
categorical approach avoids
Third,
persuaded
the Court was
“the
circularity
ambiguity
caused
practical
potential unfair
position
difficulties and
majority’s
that “the determi
particular
approach.”1
quali
ness of a factual
nation of
575,
2143,
5.
10.
495 U.S.
110 S.Ct
109 L.Ed.2d
Id.
98-225,
(1983)(fed
Rep.
S.
at
11.
No.
312-13
6.
Id. at
S.Ct. 2143.
eral
such
crimes
bank
statute
spe
and assault
federal officer statute are
924(e)(1).
7. 18 U.S.C.
prime
cifically
examples of
discussed as
violence”).
"crimes of
Taylor,
18. S.Ct. at 2249. Id. at Maj. Op. Descamps (quoting at 142 v. Unit — (citation omitted). U.S. —, States, 2276, 2285, Id. The ed explains phenomenon (2013)); this in the ACCA con- see L.Ed.2d 438 also United text, using Brown, following A illustration: state States v. " 2014) ("It burglary prohibits entry law 'the lawful or repeating bears that the modified entry' premises the unlawful categorical approach 'applicable with is only intent steal, ”). so as to create different of- divisible statutes.' only possible short, is then “each alternative per- of this violation section.”20 commission, an element means- may violate the Hobbs son Act either a jury be prosecutor prove must .not But robbery or extortion. we are asked yond indict reasonable doubt.”23 Act is crime violation whether Hobbs in this case jury instructions ment 924(c). Instead, Section of violence under list of statutory make clear that the “actu question appeals wheth- violence, force, or fear al or a Hobbs as defined er future, to injury, [the vic immediate 1951(b), violence.21 Section are all alterna property” tim’s] limitation, I find that Hobbs With element of committing tive means not divisible statute. will, victim’s taking against unlawful 1951(b)(1) defines Section Indeed, rather than alternative elements.24 *13 of obtaining per or taking “the unlawful judge specifically instructed the district person or in the sonal property from must jury government that “[t]he will, another, against by of his presence that the prove beyond reasonable doubt a force, of or or means actual threatened alleged unlawfully took the vic defendant violence, or injury, or of fear immediate or property against by his her tim’s will o future,’ or At a person property.” t his force, or or violence actual threatened phrase “by of or glance, the means actual injury, immediately or in fear of whether violence, force, or or of fear threatened future,” government but that “[t]he future, person or his injury, immediate an proving its of satisfies unlawful burden disjunctive But property” or is list. a a taking unanimously agree if you of disjunctive list com of “factual means any of these metho employed defendant mitting single element” does render ds.”25 divisible, disjunctive a statute whereas categorical ap- a strict Accordingly, Therefore, list of elements would.22 proach appropriate method de- is particular must determine whether Act is termining robbery Hobbs is or a phrase a list of alternative elements 924(c)(3). “crime of violence” under Section list of alternative means. Nonetheless, below, set out for the reasons way to instructs that one Mathis distin majority I concur with the Robinson’s looking is guish upheld. elements from means by conviction should be charge in and at the the indictment “the II. instructions”—for exam jury correlative charged if the is ple, Using categorical approach, defendant with “bur I.come vehicle,” structure, majority as the gling building, or the same conclusion 1951(a). obtaining] approximately United $100 20. 18 States U.S.C. Subway, per- currency, property from of Mr, ("Was Appellant Br. at J.H., of presence employee or in the an son brandishing wrongly convicted a firearm grand jury, against Subway and known to the 924(c)(3), Act since Hobbs will, by and threatened J.H.’s means actual 1951(b), categor- robbery, 18 is force, violence, injury, fear of immediate and ?”). crime of ... ical violence future, person property, that to her is, using handgun Mathis, by S.Ct. at 2249. handgun the victim to threaten intimidate (internal quotation omit- Id. at 2257 marks J.H.”). ted), 25.App’x at'535. See, (indictment charg- e.g„ App’x 32-33 “unlawfully [talcing ing Robinson with is “force robbery capable causing physical Hobbs Act in fact “crime of simply 924(c)(3)(A) violence.” Section injury person.”27 defines to another pain or In words, definition, felony as any that “has as other a jury violence could use, use, attempted force, element or or have found “actual threatened or use physical violence, injury” force if against or threatened fear or person used, use, attempted another.” Hobbs or robbery is as “the defined physical unlawful force threatened taking obtaining personal property “fear injury” cannot occur without at ... force, of actual physical means threat of least a and vice force, of injury, or violence or fear immedi- I Accordingly, versa.28 find future, ate or property.”26 is categorically a crime of violence 924(c)(3). the list question whether enumerat- under Section ed Hobbs Act definition conclusion, In I concur the judgment broader than the list enumerated Sec- majority affirm and will 924(c)(3)(A). tion 924(c) conviction.29 Section I find the Second persuasive Circuit’s States v. Hill recent decision in same issue. opinion, well-reasoned
that court held that all the alternative committing
means of a Hobbs Act force, violence,
“actual or or or threatened satisfy
fear injury,” can Section
924(c)(3)(A)’s requirement “use, at- use,
tempted or use of physical threatened
force” Supreme because the al- force,”
ready “physical defined in the con- defining
text of
felony,
a violent
to be
1951(b)(1).
Legislative
the "crime
violence” definition.
history supports
position. Congress spe
this
Hill,
(citing