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United States v. Johnson

United States District Court, D. Kansas

June 1, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DERRICK V. JOHNSON, Defendant.

          MEMORANDUM AND ORDER

          Sam A. Crow, U.S. District Senior Judge

         The defendant Derrick V. Johnson moves to vacate his sentence pursuant to 28 U.S.C. § 2255 in light of Johnson v. United States, 135 S.Ct. 2551(2015)[1]. (Dk. 188). Mr. Johnson was convicted on pleas of guilty to counts one through three, five and six of the indictment that charged him with three counts (1, 3 and 5) of violating 18 U.S.C. § 1951 (Hobbs Act robbery) and two counts (2 and 6) of violating 18 U.S.C. § 924(c) (Possession of a firearm during a crime of violence), and he was sentenced to a total term of 468 months custody. (Dk. 174). Mr. Johnson did file a direct appeal, and this is his first motion for relief under § 2255.

         Mr. Johnson asks the court to vacate his § 924(c) convictions because he believes his three Hobbs Act robbery convictions do not meet the definition of a crime of violence under § 924(c)(3). Specifically, he contends a § 1951(a) and (b)(1) Hobbs Act robbery conviction does not require proof of violent physical force as required by § 924(c)(3)(A). As for any fallback argument by the government that his Hobbs Act robbery convictions qualify under the residual clause of § 924(c)(3)(B), Mr. Johnson relies on Johnson and its holding that such language is unconstitutionally vague.

         The issue is framed by the following statutory language. Section 924(c)(1)(A) provides that, “any person who, during and in relation to any crime of violence . . ., uses or carries a firearm, . . ., shall, in addition to the punishment provided for such crime of violence” be subject to an additional sentence. Section 924(c)(3) defines a “crime of violence, ” in part, as a felony offense that, “(A) has an element the use, attempted use, or threatened use of physical force against the person or property of another.” The Hobbs Act robbery provision, 18 U.S.C. § 1951(b)(1), defines robbery, in part, as, “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, . . . .” In effect, the defendant's position would have the court hold that all Hobbs Act robbery convictions under § 1951(b)(1) fail to meet the “crime of violence” definition in § 924(c)(3)(A), because the statutory elements allow for the offense to be committed not just by the threatened use of physical force but also by the “threatened . . . fear of injury.” From what the parties have provided and from its own research, the court is convinced the overwhelming weight of precedential authority is against the defendant's position that a Hobbs Act robbery conviction does not qualify as a “crime of violence” under the elements definition.

         In making this determination, courts employ the categorical approach to the elements of the predicate offense and not to the particular facts of the offense. United States v. Harris, 844 F.3d 1260, 1263 (10th Cir. 2017), petition for cert. docketed, No. 16-8616 (Apr. 6, 2017). In Harris, the Tenth Circuit looked to recent Supreme Court precedent in applying the categorical approach to an elements clause determination:

A two-step inquiry resolves whether Colorado's robbery statute requires physical force as that term is used in the ACCA: we must identify the minimum “force” required by Colorado law for the crime of robbery and then determine if that force categorically fits the definition of physical force. See Moncrieffe v. Holder, __ U.S. __, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013) (“Because we examine what the state conviction necessarily involved ... we must presume that the conviction ‘rested upon [nothing] more than the least of th[e] acts' criminalized, and then determine whether even those acts are encompassed by the generic federal offense.” (alterations in original) (emphasis added)). The Supreme Court has reminded us that in construing the minimum culpable conduct, such conduct only includes that in which there is a “realistic probability, not a theoretical possibility” the state statute would apply. Id. at 1685 (citation omitted). Decisions from the state supreme court best indicate a “realistic probability, ” supplemented by decisions from the intermediate-appellate courts.

844 F.3d at 1264. The Tenth Circuit in Harris referenced both Johnson, 559 U.S. at 143, and Justice Scalia's concurrence in United States v. Castleman, __U.S.__, 134 S.Ct. 1405, 1421-22 (2014), in arriving at an “understanding of ‘physical force' in mind-that is, physical force means violent force, or force capable of causing physical pain or injury to another person . . . .” 844 F.3d at 1265-66. Thus, “the categorical approach requires us to consider the minimum conduct necessary for a conviction of the predicate offense (in this case, a Hobbs Act robbery), and then to consider whether such conduct amounts to a crime of violence under § 924(c)(3)(A).” United States v. Hill, 832 F.3d 135, 139 (2nd Cir. 2016). In deciding whether a Hobbs Act robbery categorically qualifies as a crime of violence under the force clause, the Second Circuit similarly said:

One final point remains. Critically, the Supreme Court has made clear in employing the categorical approach that to show a predicate conviction is not a crime of violence “requires more than the application of legal imagination to [the] . . . statute's language.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007). As relevant here, there must be “a realistic probability, not a theoretical possibility, ” that the statute at issue could be applied to conduct that does not constitute a crime of violence. Id. To show that a particular reading of the statute is realistic, a defendant “must at least point to his own case or other cases in which the ... courts in fact did apply the statute in the ... manner for which he argues.” Id. To that end, the categorical approach must be grounded in reality, logic, and precedent, not flights of fancy. See Moncrieffe v. Holder, __ U.S. __, 133 S.Ct. 1678, 1684-85, 185 L.Ed.2d 727 (2013) (noting that “focus on the minimum conduct criminalized by the [relevant] statute is not an invitation to apply ‘legal imagination' to the ... offense” (quoting Duenas-Alvarez, 549 U.S. at 193, 127 S.Ct. 815)).

Hill, 832 F.3d at 139-40.

         The defendant's motion rests on two primary arguments. First, the commission of a Hobbs Act robbery by threatening injury is insufficient to meet the element of force. Second, the amount of force required for a § 1951 violation falls short of the physical force required under § 924(c)(3). On the first argument, the defendant relies on United States v. Perez-Vargas, 414 F.3d 1282, 1285 (10th Cir. 2005)(“statute looks to the consequences of the conduct, however applied, whereas the Guidelines look to the type of conduct that causes the injury”) and on the Tenth Circuit's application of this in United States v. Zuniga-Soto, 527 F.3d 1110, 1125-26 n. 3 (10th Cir. 2008)(“Because section 22.01(a)(1) of the Texas Penal Code [Texas assault statute] permits convictions based on the mere causation of physical injury without proof of the use, attempted use, or threatened use of physical force, it does not qualify as a crime of violence . . . .”). In the face of the unbroken consensus of circuit opinions to the contrary, the defendant maintains these opinions are an adequate basis for believing the Tenth Circuit would reach a different conclusion and hold that a Hobbs Act robbery does not categorically qualify as a crime of violence. As for the Tenth Circuit's recent unpublished decision, United States v. Moreno, 665 Fed.Appx. 678 (10th Cir. Nov. 10, 2016), which squarely holds that a § 1951 robbery is a “crime of violence” under § 924(c)(3)(A), the defendant dismisses it as not controlling because it fails to address his arguments. The court has considered all of the parties' cited case law. The court is not persuaded by the defendant's efforts at elevating some vague and conclusory language from Perez-Vargas and Zuniga-Soto into some hard and fast final rule intended for general application. Moreover, the rule as argued here hardly stands up to the overwhelming weight of judicial decisions to the contrary. The court chooses not to belabor this order with any additional analysis of the defendant's arguments.[2] Instead, this order will lay out the persuasive line of precedent for a Hobbs Act robbery categorically qualifying under § 924(a)(3).

         First, and not the least, is the Tenth Circuit's recent unpublished decision in United States v. Moreno, 665 Fed.Appx. 678 (10th Cir. Nov. 10, 2016), in which the circuit panel denied a certificate of appealability (“COA”) from the district court's holding on essentially the same arguments made by Mr. Johnson here. Mr. Moreno argued that his predicate Hobbs Act robbery offense did not qualify as a crime of violence under the elements definition of § 924(c)(3)(A) and that the residual clause in § 924(c)(3)(B) was unconstitutionally vague under Johnson. The district court ruled that the Hobbs Act robbery offense charged in count one qualified as a crime of violence “because it ‘has as an element the use, attempted use, or threatened use of physical force against the person or property of another.'” 665 Fed.Appx. at 679. Mr. Moreno appealed the denial of his § 2255 motion and his COA request. The Tenth Circuit affirmed finding that reasonable jurists would not disagree with the district court's assessment of Mr. Moreno's constitutional claims:

The district court correctly held that robbery, as defined in § 1951, qualifies as a “crime of violence” under § 924(c)(3)(A) because it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Accordingly, Count 2 was not predicated on § 924(c)(3)(B). Although Mr. Moreno argued to the contrary and asserted his guilty plea did not fall within § 924(c)(3)(A), the district court concluded this “argument is not persuasive because it contradicts the plain language of § 1951 and § 924.”
We agree. The elements of Count 1-particularly the definition of robbery, which requires use of actual or threatened force or violence- parallel the requirements for finding a “crime of violence” under § 924(c)(3)(A). Thus, Count 1 provided the necessary crime of violence to support Mr. Moreno's guilty plea on Count 2. Mr. Moreno's challenges under Johnson do not change our analysis because Count 1 qualifies as a “crime of violence” under § 924(c)(3)(A) regardless of any potential vagueness in § 924(c)(3)(B).

Moreno, 665 Fed.Appx. at 681. This holding squarely rejects the position now argued by Mr. Johnson here. See also United States v. McGuire, __Fed. Appx.__, 2017 WL 429251, at *2 (10th Cir. Feb. 1, 2017) (โ€œ[F]ederal bank robbery conviction qualifies as a predicate offense under the elements clause of ยง 4B1.2(1)(i) because it contains, as an element, the use or threatened use of force.โ€ (footnote omitted)). In a published decision coming down just months ago, the Tenth Circuit also held that, โ€œ[v]iolent force is ...


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