UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v. Criminal Action No. 17-194 (RDM)

DAVID LEE THOMAS,

Defendant.

MEMORANDUM OPINION AND ORDER

Defendant David Lee Thomas moves to dismiss multiple counts of his indictment on the

ground that the predicate offense, Hobbs Act robbery, does not qualify as a “crime of violence”

within the meaning of

(c). Agreeing with every Court of Appeals to have

considered that argument, the Court concludes that Hobbs Act robbery is a crime of violence

within the meaning of

(c) and, accordingly, will deny the motion.

On May 3, 2018, a grand jury returned a superseding indictment charging Thomas with

fourteen criminal counts related to alleged robberies. Five of these fourteen counts—Counts

Two, Four, Six, Ten and Twelve—charge Thomas with “Using, Carrying, and Possessing a

Firearm During a Crime of Violence, in violation of Title

(c)(1)(A).” Dkt. 8 at 2, 3, 4–5, 6, 7–8 (“§ 924(c) counts”). That statute provides that “any

person who, during and in relation to any crime of violence . . . uses or carries a firearm, or who,

in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment

provided for such crime of violence . . . be sentenced to a term of imprisonment” as defined by

the statute.

(c)(1)(A). For purposes of § 924(c), a “crime of violence” is “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 another, or

(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.

Id. § 924(c)(3). The D.C. Circuit has declared the second clause—the so-called “residual

clause”— unconstitutionally vague, see United States v. Eshetu,

(D.C. Cir.

2018), and so only the first clause—the so-called “elements” or “force” clause—is at issue here.

According to Thomas, the Court must dismiss all five § 924(c) counts because the

underlying crimes charged by the indictment—robberies in violation of the Hobbs Act, 18

U.S.C. § 1951—are not “crimes of violence” within the meaning of

, and

therefore § 924 cannot apply regardless of whether Thomas himself allegedly used violent force

during the commission of the alleged robberies. Dkt. 18 at 1. The Hobbs Act defines “robbery”

as:

[T]he 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, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.

(b)(1). The Hobbs Act also defines “extortion” as “the obtaining of property

from another, with his consent, induced by wrongful use of actual or threatened force, violence,

or fear, or under color of official right.”

§ 1951(b)(2).

Thomas argues that, in evaluating his motion, the Court must ignore the particulars of his

case and apply the “categorical approach.” The categorical approach directs courts to evaluate

whether an offense is a “crime of violence” solely “in terms of how the law defines the offense

and not in terms of how an individual offender might have committed it on a particular

2 occasion.” Johnson v. United States,

(2015). That is, in examining

whether a crime meets the definition of a “crime of violence,” “[t]he key” to the Court’s analysis

must be “elements, not facts.” Descamps v. United States,

(2013).1 “If the

law defines the crime in such a way that it can be committed using either violent or non-violent

force, then the crime is not” a crime of violence under § 924(c)(3)(A), “even if the defendant

actually used violent force in committing the crime.” United States v. Haight,

(D.C. Cir. 2018). A court applying the categorical approach must therefore look only to

“the minimum conduct criminalized by the [particular] statute.” Moncrieffe v. Holder,

(2013). Thomas argues that, viewed from this vantage point, the Court must dismiss all

of the § 924(c) counts because there are multiple “ways in which Hobbs Act robbery can be

committed without satisfying the force clause.” Dkt. 18 at 10.

The government first responds by arguing that the categorical approach does not apply

here. Explaining that the categorical approach is used “almost exclusively . . . at sentencing or

post-trial matters,” the government observes that some courts have “questioned the [application]

of the categorical approach to a pre-trial motion to dismiss a count in the indictment.” See Dkt.

24 at 9 n.3. Indeed, at least one decision in this district has held that the categorical approach is

1 The Supreme Court has explained that, in “a narrow range of cases,” a “modified” categorical approach may be necessary where a statute is “divisible”—that is, where statutory elements “comprise[] multiple, alternative versions of the crime” and a later sentencing court will have to “examine a limited class of documents to determine which of a statute’s alternative elements formed the basis of the defendant’s prior conviction.” Descamps,

(internal quotations omitted).

Hobbs Act robbery may be committed either by means of “actual or threatened force, or violence” or by “fear of injury,” see

(b)(1), and the government has charged Thomas with both, see Dkt. 8 at 2, 3, 4, 6, 7. Because application of the modified categorical approach would not affect the Court’s decision, the Court need not decide whether that framework applies here.

3 inapposite when analyzing a pretrial motion to dismiss a § 924 count, because—unlike in cases

in which courts must consider past convictions for purposes of sentencing—the application of

§ 924 will be “based solely upon the offense being presented to the factfinder in the same case.”

United States v. McCallister, No. CR 15-0171,

, at *4 (D.D.C. May 31, 2016);

see also United States v. Robinson,

(3d Cir. 2016) (“Looking at a

contemporaneous conviction allows a court to determine the basis for a defendant’s predicate

conviction. The defendant suffers no prejudice because the court is not finding any new facts

which are not of record in the case before it.”).

The D.C. Circuit, however, has previously applied the categorical approach to determine

whether Hobbs Act robbery is a crime of violence for purposes of § 924(c)(3). See United States

v. Kennedy,

(D.C. Cir. 1998). Although a portion of that case cited only the

residual clause, see

, the Court of Appeals did not differentiate between § 924(c)(3)(A)

and § 924(c)(3)(B). There is little to suggest, moreover, that the court’s reasoning would not

apply equally to the elements clause, and dicta in the decision seems to reject the argument the

government raises here. See id. n.3 (“There is no difference, for the purpose of sentencing

enhancement statutes, between predicate crimes committed in the past or the present.”). The

government, moreover, recently raised the argument it raises here in the context of the residual

clause, arguing to the D.C. Circuit that a case-by-case—and not a categorical—approach ought

to apply to challenges to § 924(c)(3)(B) counts. See Corrected Supplemental Pleading of

Appellee at 9–24, United States v. Eshetu, No. 15-3020 (D.C. Cir. June 6, 2018). The Court of

Appeals rejected that argument, holding that “circuit precedent demands a categorical approach

to section 924(c)(3)(B).” Eshetu,

(citing Kennedy,

). The

4 government makes no attempt to explain why this Court’s analysis under the elements clause

should proceed differently.

The Court, however, need not—and does not—resolve this question because Thomas’s

argument fails even under the categorical approach. As the government points out, “[n]o case to

date has held that Hobbs Act robbery cannot serve as a predicate offense for § 924(c)—despite

robbery frequently serving as a predicate offense for § 924(c) counts in federal cases and even

though both Hobbs Act robbery and § 924(c) have been on the books for many years.” Dkt. 24

at 24. To the contrary, every Court of Appeals to consider the question has concluded that

Hobbs Act robbery qualifies as a “crime of violence” under § 924(c)(3)(A) when analyzed under

the categorical approach. See, e.g., United States v. Garcia-Ortiz,

(1st Cir.

2018), cert. denied,

(2019); United States v. Barrett,

(2d Cir.

2018); United States v. Melgar-Cabrera,

(10th Cir.), cert. denied,

(2018); United States v. Buck,

, 274–75 (5th Cir. 2017); United States v.

Gooch,

(6th Cir. 2017); United States v. Anglin,

(7th Cir.),

judgment vacated on other grounds,

(2017); United States v. Howard,

(9th Cir. 2016). Thomas’s counsel acknowledged as much at oral argument.

See Dkt. 31 at 7 (Apr. 5, 2019 Hrg. Tr.) (“[O]n the force clause, I’ve made my argument, and

every court that has looked at it has found it lacking.”). The Court agrees with the reasoning of

these decisions, and because Thomas’s arguments track those previously made—and rejected—

in this substantial body of precedent, the Court will address them only briefly.

Thomas contends that there are “three ways in which Hobbs Act robbery can be

committed without satisfying the force clause.” Dkt. 18 at 10. First, he argues that someone

could potentially commit Hobbs Act robbery “via threats to devalue some intangible economic

5 interest like a stock holding or contract right.” Id. at 11. Thomas further contends that even

when considering tangible property, “[o]ne can threaten to injure another’s property by throwing

paint on someone’s house, pouring chocolate syrup on one’s passport, or spray painting

someone’s car,” and it “is plain that such actions do not require violent (i.e. strong) physical

force against property, as required under the § 924(c)(3)(A) force clause.” Id. The Supreme

Court has cautioned that, when applying the categorical approach, however, there needs to be “a

realistic probability, not a theoretical possibility” that the statute will be applied in the way a

defendant contends, usually by “point[ing] to his own case or other cases in which the . . . courts

in fact did apply the statute in the special (nongeneric) manner for which he argues.” Gonzales

v. Duenas-Alvarez,

(2007). The cases that Thomas cites in support of this

argument, moreover, do not deal with Hobbs Act robbery at all; they instead address Hobbs Act

extortion—a separate and distinct criminal offense. See United States v. Arena,

(2d Cir. 1999); United States v. Local 560 of Int’l Bhd. of Teamsters, Chauffeurs,

Warehousemen, & Helpers of Am.,

(3d Cir. 1985). Thomas’s “legal

imagination” aside, Duenas-Alvarez,

, he cannot show any possibility that the

robbery provision has been or will be applied in the way he speculates.

Second, Thomas argues that an individual can commit Hobbs Act robbery “by placing

another in fear of injury to his person”—an act that “does not require the use or threatened use of

‘violent force’ against another.” Dkt. 18 at 12. He contends that “a defendant can place another

in fear of injury by threatening to poison that person, to expose that person to hazardous

chemicals, to withhold one’s insulin, to place a barrier in front of the person’s car, to lock the

person up in the car on a hot day, to lock that person at an abandoned site without food or

shelter.” Id. at 15 (emphasis omitted). The problem with this argument is that these scenarios

6 would, in fact, qualify as violent force. The D.C. Circuit has explained that “so-called indirect

violent force is still violent force,” agreeing “with ten other federal courts of appeals that have

addressed the question either in the ACCA context or in equivalent contexts.” Haight,

(listing cases); see also United States v. Castleman,

(2014) (“The ‘use

of force’ in Castleman’s example is not the act of ‘sprinkl[ing]’ the poison; it is the act of

employing poison knowingly as a device to cause physical harm. That the harm occurs

indirectly, rather than directly (as with a kick or punch), does not matter.”). Thomas relies on the

Fourth Circuit’s opinion in United States v. Torres-Miguel, in which that court held that “[a]n

offense that results in physical injury, but does not involve the use or threatened use of force,

simply does not meet the Guidelines definition of a crime of violence.”

(4th

Cir. 2012) (emphasis in original). Torres-Miguel is not binding on this Court; but, in any event,

it is inapposite: in direct contrast with the statute at issue there, Hobbs Act robbery requires, in

plain terms, “actual or threatened force, or violence, or fear of injury.”

(b)(1).

Torres-Miguel, moreover, also predated the Supreme Court’s discussion of indirect “use of

force” in Castleman.

Finally, Thomas argues that “[t]he act of putting someone in fear of injury, as defined

under the Hobbs Act robbery statute, does not constitute a ‘crime of violence’ under the force

clause because it does not require an intentional threat of physical force.” Dkt. 18 at 16. He

posits, for example, that “a defendant may be found guilty of federal bank robbery even though

he did not intend to put another in fear of injury.”

. It seems clear, however, that “the

taking of personal property from another against their will by means of actual or threatened

force, or violence or fear of injury, immediate or future, entails a higher degree of intent than

negligent or merely accidental conduct.” United States v. Standberry,

, 740

7 (E.D. Va. 2015). Indeed, it is difficult to “imagine a realistic scenario where a defendant could

accidentally, negligently or even recklessly, use the fear of injury to take property from another

person against their will.” United States v. Hancock,

(D. Md. 2016).

The D.C. Circuit, moreover, has “conclude[d] that the use of violent force includes the reckless

use of such force,” Haight,

, and thus Thomas would have to show “a realistic

probability, not a theoretical possibility” that the statute criminalizes merely negligent or

accidental robbery, Duenas-Alvarez,

. He has not done so, and the Court must

“eschew the kind of creative speculation the Supreme Court has proscribed.” United States v.

Redrick,

(D.C. Cir. 2016).

The Court, accordingly, concludes that Hobbs Act robbery qualifies as a “crime of

violence” within the meaning of

(c).

CONCLUSION

Defendant’s motion to dismiss Counts Two, Four, Six, Ten and Twelve of his

superseding indictment, Dkt. 18, is hereby DENIED.

SO ORDERED.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: April 12, 2019

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