NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 16-4384 _____________

UNITED STATES OF AMERICA

v.

JOSEPH V. MONROE, Appellant ____________

Appeal from the United States District Court for the Western District of Pennsylvania (W.D. Pa. No. 2-15-cr-00074-001) U.S. District Judge: Honorable Donetta W. Ambrose _____________

No. 19-1494 _____________

UNITED STATES OF AMERICA

v.

DAVID COPES, a/k/a David Henderson-Copes, Appellant ____________

Appeal from the United States District Court for the Eastern District of Pennsylvania (E.D. Pa. No. 2-18-cr-00319-001) U.S. District Judge: Honorable Timothy J. Savage ___

Submitted Under Third Circuit L.A.R. 34.1(a) October 23, 2019 ______________ Before: McKEE, AMBRO and ROTH, Circuit Judges

(Opinion filed: January 6, 2021) _______________________

OPINION * _______________________

McKEE, Circuit Judge,

Joseph V. Monroe and David Copes, whose criminal appeals were consolidated for

disposition, appeal various aspects of their convictions and sentences under

(c) arising from a Hobbs Act robbery. First, we must determine whether our decision

in United States v. Robinson,

(3d Cir. 2016) was abrogated by the Supreme

Court’s decision in United States v. Davis,

(2019), which would alter the

application of

(c). Next, we must decide whether Hobbs Act robbery

qualifies as a crime of violence for purposes of § 924(c). For the following reasons, we will

affirm the § 924(c) convictions, but do so on different grounds than relied upon by the

district courts. 1

I.

Monroe and Copes raise two issues on appeal. First, they claim that our decision in

United States v. Robinson, 2 which applied a modified categorical approach in determining

that Hobbs Act robbery is a crime of violence, was abrogated by the Supreme Court’s

* This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 1 The district courts had jurisdiction pursuant to

. We have jurisdiction pursuant to

and

. 2

(3d Cir. 2016).

2 decision in United States v. Davis. 3 After Davis, all cases analyzed under the elements

clause must apply the categorical approach. 4 Second, defendants argue that Hobbs Act

robbery is therefore no longer a crime of violence under

(c) because §

924(c)(3)(B) is unconstitutionally vague. 5 However, Hobbs Act robbery is still a crime of

violence under the “elements prong” of § 924(c) because Hobbs Act robbery satisfies §

924(c)(3)(A) using the categorical approach.

Copes and Monroe contend that their convictions under § 924(c)(3) must be vacated

because Hobbs Act robbery does not satisfy the elements clause and thus it is not a “crime

of violence.” The defendants argue that Hobbs Act robbery does not qualify as a crime of

violence because Hobbs Act robbery can be committed without the “use, attempted use, or

threatened use of physical force.” 6

Hobbs Act robbery is defined, in relevant 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, immediate or future, to

his person or property.” 7 Section 924(c)(3)(A) defines a “crime of violence” as a felony

offense that “has as an element the use, attempted use, or threatened use of physical force

against the person or property of another.”

3

(2019). 4 Defendants and the government both agree that Davis effectively abrogated Robinson. We accept for the purposes of this appeal that § 924(c)(3)(A) requires the categorical approach. 5 Davis,

. 6 Copes Appellant Br. 16–20; Monroe Appellant Br. 19–22. 7

(b)(1).

3 Copes and Monroe argue that the least culpable conduct necessary to commit Hobbs

Act robbery does not meet the 924(c)(3)(A) definition. They present various non-violent

hypotheticals as alternative means of committing Hobbs Act robbery through fear of injury

to intangible property: making a restauranteur hand over money by threatening to scream

rat in front of customers, 8 making a shareholder hand over a wallet by threatening to start

a boycott of the company on social media, 9 or threatening pecuniary injury. 10 These

hypotheticals misconstrue the Hobbs Act robbery definition, and they misconstrue the

definition of “physical force” under Section 924(c)(3)(A).

Initially, we note that the defendants’ hypotheticals do not present “more than the

application of legal imagination.” 11 They do not point to any cases where courts have

applied Hobbs Act robbery in the manner hypothesized. 12 Moreover, their failure to do so

is not surprising. Their hypotheticals do not constitute the type of “injury” contemplated

by the “fear of injury” included in Hobbs Act robbery. We have previously accepted

dictionary definitions of “injure” to mean “to inflict bodily hurt on” or “[t]o do harm to,

damage, or impair. To hurt or wound, as the person.” 13 We have concluded that these

8 Copes Appellant Br. 18 9

10 Monroe Appellant Br. 21. 11 Gonzales v. Duenas-Alvarez,

(2007). 12 See

(“To show that realistic probability, an offender, of course, may show that the statute was so applied in his own case. But he must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.”). 13 United States v. Chapman,

(3d Cir. 2017) (citing WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1164 (1993) and BLACK’S LAW DICTIONARY 785 (6th ed. 1990)).

4 definitions “necessarily threaten[] the use of physical force.” 14 Thus, “‘fear of injury’

cannot occur without at least a threat of physical force” sufficient to satisfy the elements

clause for the “crime of violence” definition. 15 In addition, there is evidence that “Congress

intended the ‘physical force’ element to be satisfied by . . . fear of injury.” 16

Copes and Monroe use the wrong definition of physical force under §

924(c)(3)(A). 17 The Supreme Court has concluded that “‘physical force’ means violent

force—that is, force capable of causing physical pain or injury to another person.” 18 When

applying the appropriate “fear of injury” definition outlined above to the correct definition

of physical force, Hobbs Act robbery is clearly a crime of violence.

Conclusion

For the foregoing reasons, we will affirm Monroe’s and Copes’s convictions under

(c)(3)(A).

14

(“[W]e conclude that knowingly mailing a communication threatening to injure the person of the addressee or of another necessarily threatens the use of physical force.”). 15 See United States v. Robinson,

(Fuentes, J., concurring). 16 See

at 151 n.28 (“Congress specifically singled out the federal bank robbery statute as a crime that is the prototypical ‘crime of violence’ captured by Section 924(c). Yet, the federal bank robbery statute,

(a), is analogous to Hobbs Act robbery. Section 2113 may be violated by ‘force and violence, or by intimidation,’ just as the Hobbs Act robbery statute may be violated by ‘actual or threatened force, or violence, or fear of injury.’ From this, we can surmise that Congress intended the ‘physical force’ element to be satisfied by intimidation or, analogously, fear of injury.” (internal citations omitted)). See also United States v. Mathis,

(4th Cir. 2019) (“[W]e see no material difference between [intimidation and fear of injury].”). 17 See, e.g., Copes Appellant Br. 18 (“And ‘physical force’ ‘plainly refers to force exerted by and through concrete bodies.’”); Monroe Appellant Br. 21–22 (“Consequently, federal robbery affecting interstate commerce does not have as an element the violent physical force necessary to satisfy the definition of § 924(c)(3)(A).”) (emphasis added). 18 Johnson v. United States,

(2010).

5