UNITED STATES OF AMERICA v. LEON CURTIS ECKFORD, AKA Porky, AKA Spank
No. 17-50167
United States Court of Appeals, Ninth Circuit
August 15, 2023
Opinion by Judge Bybee
FOR PUBLICATION; D.C. No. 8:16-cr-00054-CJC-1;
SUMMARY**
Criminal Law
Affirming Leon Eckford‘s conviction and sentence, the panel held that aiding and abetting Hobbs Act robbery is a crime of violence that properly served as a predicate for Eckford‘s conviction and mandatory minimum sentence for the use of a firearm during a crime of violence under
Under the “elements clause” of
The panel held that under United States v. Dominguez, 48 F.4th 1040 (9th Cir. 2022) (Dominguez II), completed Hobbs Act robbery is a crime of violence for purposes of
The panel held that aiding and abetting Hobbs Act robbery also satisfies the elements clause of
COUNSEL
Kristi A. Hughes (argued), Law Office of Kristi A. Hughes, Cardiff, California, for Defendant-Appellant.
Suria M. Bahadue (argued), Assistant United States Attorney; Bram M. Alden, Assistant United States Attorney, Criminal Appeals Section Chief; E. Martin Estrada, United States Attorney; United States Attorney‘s Office, Los Angeles, California; Scott D. Tenley, Zweiback Fiset & Zalduendo LLP, Los Angeles, California; for Plaintiff-Appellee.
OPINION
BYBEE, Circuit Judge:
Appellant Leon Eckford pleaded guilty to aiding and abetting the robbery of two jewelry stores in violation of the Hobbs Act,
I. BACKGROUND
A. Factual History
Between the end of 2015 and the beginning of 2016, Leon Eckford participated in two jewelry store robberies. The first robbery was straightforward. Two of Eckford‘s coconspirators entered a jewelry store and used a sledgehammer and an ax to smash open display cases. Eckford then swooped in to help his coconspirators retrieve Rolex watches from the broken cases. Their haul was 14 watches, altogether worth over $200,000.
Eckford‘s second robbery raised the stakes. Upon entering a jewelry store, one of Eckford‘s coconspirators used a handgun to strike a security guard. The coconspirator
In April 2016, Eckford was arrested in his home. In a post-arrest interview, Eckford admitted that he participated in both robberies.
B. Procedural History
Eckford was indicted on five counts: one count of conspiracy to commit Hobbs Act robbery,
At the sentencing hearing, the district court calculated a sentencing guideline range of 63 to 78 months for Eckford‘s three Hobbs Act robbery counts. Because a conviction for “brandish[ing]” a firearm in furtherance of a “crime of violence” requires a mandatory consecutive seven-year sentence,
II. JURISDICTION AND STANDARD OF REVIEW
We review a district court‘s final sentence pursuant to
The government argues that plain error review applies here because Eckford failed to argue before the district court that aiding and abetting Hobbs Act robbery was not a crime of violence. Eckford asserts that he adequately preserved the issue through comments at his change of plea and sentencing hearings.
We need not resolve this dispute because we have discretion to review this question de novo. “[W]e are not limited to [plain error] review when we are presented with [1] a question that is purely one of law and [2] where the opposing party will suffer no prejudice as a result of the failure to raise the issue in the trial court.” United States v. McAdory, 935 F.3d 838, 841–42 (9th Cir. 2019) (third and fourth alterations in original) (citation omitted). Whether Eckford‘s conviction for aiding and abetting Hobbs Act robbery is a crime of violence is a purely legal question. See United States v. Perez, 932 F.3d 782, 784 (9th Cir. 2019). The government has failed to explain how it would be prejudiced by de novo review, and it has fully briefed the issues. See McAdory, 935 F.3d at 842 (finding the government would not be prejudiced
III. DISCUSSION
Under
Under a provision of
“To determine whether a federal felony may serve as a predicate for a conviction and sentence under the elements clause . . . we must apply a ‘categorical approach.‘” United States v. Taylor, 142 S. Ct. 2015, 2020 (2022). The categorical approach ignores the facts surrounding the particular defendant‘s conviction. Id. Instead, “[t]he only relevant question is whether the federal felony at issue always requires the government to prove—beyond a reasonable doubt, as an element of its case—the use, attempted use, or threatened use of force.” Id. (emphasis added).
Eckford raises two issues. First, he argues that Hobbs Act robbery is not a crime of violence for purposes of
A. Hobbs Act Robbery as a Crime of Violence
We will first address Eckford‘s argument that completed Hobbs Act robbery is not a crime of violence. This question has a history in our court. In United States v. Mendez, we held that Hobbs Act robbery is a crime of violence. 992 F.2d 1488, 1491 (9th Cir. 1993). However, our conclusion in that case was not based on the elements clause of
Without the residual clause, the only way to define a crime of violence under
Last year, in United States v. Taylor, the Supreme Court held that attempted Hobbs Act robbery is not a crime of violence. 142 S. Ct. 2015, 2020–21 (2022). In light of Taylor, the Court vacated and remanded our decision in Dominguez I. Dominguez v. United States, 142 S. Ct. 2857 (2022). On remand, we issued a brief amended order in which we reversed the defendant‘s
Dominguez II should resolve this case. But Eckford claims that even Dominguez II‘s partial reinstatement of Dominguez I is clearly irreconcilable with Taylor. “Generally, a panel opinion is binding on subsequent panels unless and until overruled by an en banc decision of this circuit.” United States v. Easterday, 564 F.3d 1004, 1010 (9th Cir. 2009). There is a narrow exception on which Eckford relies: “en banc review is not required to overturn a case where ‘intervening Supreme Court authority is clearly irreconcilable with our prior circuit authority.‘” Id. at 1010–11 (quoting Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc), overruled on other grounds, Sanchez v. Mayorkas, 141 S. Ct. 1809 (2021)). “[T]he ‘clearly irreconcilable’ requirement ‘is a high standard’ that demands more than mere ‘tension between the intervening higher authority and prior circuit precedent.‘” Fed. Trade Comm‘n v. Consumer Def., LLC, 926 F.3d 1208, 1213 (9th Cir. 2019) (quoting Rodriguez v. AT&T Mobility Servs. LLC, 728 F.3d 975, 979–80 (9th Cir. 2013)). “[I]f we can apply our precedent consistently with that of the higher authority, we must do so.” Avilez v. Garland, 69 F.4th 525, 533 (9th Cir. 2023) (alteration in original) (quoting Consumer Def., 926 F.3d at 1213).
According to Eckford, Hobbs Act robbery cannot be, categorically, a crime of violence because it encompasses threats of future injury to intangible economic interests, like public goodwill or reputation. Such threats, Eckford claims, would not satisfy the elements clause because they do not necessarily entail the use of “physical force.”
Eckford claims the “realistic probability” test is incompatible with Taylor. Recall that Taylor dealt with attempted Hobbs Act robbery, not completed Hobbs Act robbery. Taylor, 142 S. Ct. at 2020. In order to prove an attempt, the government had to show that the defendant “completed a ‘substantial step‘” to achieving the goal. Id. But the government admitted that a “substantial step” “need not be violent.” Id. (quoting Brief for United States 22). In other words, to prove attempted Hobbs Act robbery, the government was “not require[d] . . . to prove that the defendant used, attempted to use, or even threatened to use force against another person or his property.” Id.
In Taylor, the United States pointed to Duenas-Alvarez as evidence that the defendant bears the burden of showing “how his crime of conviction is normally committed or usually prosecuted.” Id. at 2024. The Court rejected the application of Duenas-Alvarez in Taylor‘s case, for two reasons. First, the Court observed that in Duenas-Alvarez, the Court was engaged in a different version of the categorical approach. In Duenas-Alvarez, the Court was comparing generic federal law to state law, and the state courts are the final arbiters of the meaning of the state statute. So the Court employed the “realistic probability” test to measure how a state was likely to apply its statute; the test placed the burden on the defendant to show that a creative application of the state statute was a “realistic probability” and not just a “theoretical possibility.” Duenas-Alvarez, 549 U.S. at 193. In Taylor, however, the Court had no such federalism concerns because it was comparing one federal statute to another federal statute. Taylor, 142 S. Ct. at 2025. Second, the Court pointed out that in Duenas-Alvarez the state and federal law clearly overlapped; the question was whether “state courts also ‘appl[ied] [their law] in [a] special (nongeneric) manner.‘” Id. (quoting Duenas-Alvarez, 549 U.S. at 193) (first and third alterations in original). In Taylor, there was no need to inquire how a state might enforce its own law; it was a matter for the federal courts to compare the elements of attempted Hobbs Act robbery with the
Taylor‘s concerns are not at play in this case. First, Taylor is not “intervening higher authority.” Miller, 335 F.3d at 893 (emphasis added). The precedent that binds us is not Dominguez I; it is Dominguez II. Dominguez II was published after the Supreme Court vacated Dominguez I in light of Taylor. By reinstating the completed Hobbs Act robbery analysis of Dominguez I, the panel in Dominguez II necessarily affirmed that analysis as consistent with Taylor. It is not our place to second-guess this holding.
Second, even if we were not bound by Dominguez II, we would still find that
observe[d] that both Section 924(c) and Hobbs Act robbery reference the use of force or threatened use of force against “property” generally, without further defining the term “property.” . . . And neither provision draws any distinction between tangible and intangible property. Thus, we do not discern any basis in the text of either statutory provision for creating a distinction between threats of injury to tangible and intangible property for the purposes of defining a crime of violence.
Dominguez I, 954 F.3d at 1261 (second alteration in original) (quoting United States v. Mathis, 932 F.3d 242, 266 (4th Cir. 2019)). We “agree[d] with and adopt[ed] this reasoning.” Id. In other words, if “property” encompasses intangible property in the Hobbs Act, then so does “property” in
We recognize that Eckford‘s argument goes one step beyond what we discussed in Dominguez I. His point is not just that Hobbs Act robbery may involve injury to intangible property. Rather, his point is that a threat to injure intangible property does not entail the physical force that the elements clause demands. Although this argument has some appeal, it is not a natural reading of the text. The First Circuit addressed a similar claim in United States v. García-Ortiz, 904 F.3d 102 (1st Cir. 2018). García-Ortiz argued that “a person can commit Hobbs Act robbery by threatening to ‘devalue some intangible economic interest like a stock holding or control right.‘” Id. at 107. The First Circuit pointed out that the hypothetical “sounds to us like Hobbs Act extortion,” which is punished in a separate section. Id. (emphasis in original); see
unpersuaded that a threat to devalue an intangible economic interest constitutes the type of “injury” described in the Hobbs Act‘s robbery provision. . . . Hobbs Act robbery, even when based upon a threat of injury to property, requires a threat of the kind of force described in Johnson[], that is, “violent force . . . capable of causing physical pain or injury.”
Id. at 107 (quoting Johnson, 559 U.S. at 140). We agree with the First Circuit‘s analysis. The broad form of intangible injury that Eckford describes is a far cry from the physical harm evoked by the terms “force,” “violence,” and “fear of injury.”
B. Aiding and Abetting Hobbs Act Robbery as a Crime of Violence
In the alternative, Eckford argues that even if Hobbs Act robbery satisfies the elements clause, aiding and abetting Hobbs Act robbery does not. Eckford argues that a defendant may be convicted of aiding and abetting Hobbs Act robbery for being complicit in another person‘s use of force without using or threatening to use force himself, and that such complicity cannot satisfy the elements clause.
Eckford‘s argument misunderstands the nature of aiding and abetting liability. At common law, aiding and abetting was considered a separate offense from the crime committed by the principal actor. Over time, “every jurisdiction—all States and the Federal Government— . . . ‘expressly abrogated the distinction’ among principals and aiders and abettors.” Duenas-Alvarez, 549 U.S. at 189 (quoting 2 W. LaFave, Substantive Criminal Law § 13.1(e) (2d ed. 2003)). As a consequence, aiding and abetting liability is “not a separate offense.” United States v. Garcia, 400 F.3d 816, 820 (9th Cir. 2005). We no longer distinguish between principals and aiders and abettors; principals and accomplices “are equally culpable and may be convicted of the same offense.” Alfred, 64 F.4th at 1034 (plurality opinion); see
This rule applies to convictions under
In sum, nothing in this analysis is “clearly irreconcilable” with Taylor. Taylor dealt with an inchoate crime, an attempt, and does not undermine our precedent on aiding and abetting liability. “[T]here are fundamental differences between attempting to commit a crime, and aiding and abetting its commission . . . .” Garcia, 400 F.3d at 819. Chief among these differences is that “[i]n an attempt case there is no crime apart from the attempt, which is the crime itself,” whereas “aiding and abetting is a different means of committing a single crime, not a separate offense itself.” Id. at 819–20. Put differently, proving the elements of an attempted crime falls short of proving those of the completed crime, whereas a conviction for aiding and abetting requires proof of all the elements of the completed crime plus proof of an additional element: that the defendant intended to facilitate the commission of the crime. See id. at 819. One who aids and abets the commission of a violent offense has been convicted of the same elements as one who was convicted as a principal; the same is not true of one who attempts to commit a violent offense. Accordingly, we conclude that our precedent is not clearly irreconcilable with Taylor.
IV. CONCLUSION
We have previously held that Hobbs Act robbery is a crime of violence, Dominguez II, 48 F.4th 1040, and that aiding and abetting a crime of violence is also a crime of violence, Young, 22 F.4th at 1123. That precedent has not been undermined by the Supreme Court‘s decision in Taylor. We therefore affirm the judgment of the district court.
AFFIRMED.
JAY S. BYBEE
UNITED STATES CIRCUIT JUDGE