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United States v. Hancock

United States District Court, D. Maryland, Southern Division

March 2, 2016

UNITED STATES OF AMERICA
v.
GARY WARREN HANCOCK, JR. Defendant.

MEMORANDUM OPINION

George J. Hazel United States District Judge

The Court is asked to determine whether a defendant found guilty of robbing a Pizza Hut by pointing a firearm in the direction of store employees, and then leading a battalion of police officers in a high speed chase through residential neighborhoods and the interstate, should face the mandatory minimum sentence imposed under 18 U.S.C. § 924(c) for brandishing a firearm during and in relation to a crime of violence; a penalty which, here, would be increased in severity under the sentencing guidelines because the defendant has previously been convicted of kidnapping and carjacking, both crimes in which he also used a firearm. In order to make this determination, the Court must analyze, inter alia, whether taking property after making a threat to devalue a stock holding could be punished as a Hobbs Act robbery. While on its face this may seem an awkward approach, it is simply an outgrowth of the continuing struggle of the courts to match sentencing enhancements with the appropriate underlying predicate conduct. The Court has engaged in the requisite struggle in this case and concludes that the Defendant was properly convicted of 18 U.S.C. § 924(c) and therefore denies Defendant's Motion to Dismiss Count Two.

I. BACKGROUND

On May 6, 2015, a jury found the Defendant guilty of Interference with Commerce by Robbery (commonly referred to as "Hobbs Act robbery"), Brandishing a Firearm in Furtherance of a Crime of Violence and Possession of a Firearm by a Person Convicted of a Crime Punishable by Imprisonment for One Year of More. ECF No. 265. The alleged underlying crime of violence for Count Two was the Hobbs Act robbery for which the Defendant was convicted in Count One. The Defendant, with the assistance of the Federal Public Defenders' office acting as Amicus Curiae ("Amicus"), now moves to dismiss Count Two, arguing that Count Two does not state an offense in light of the Supreme Court's recent decision in United States v. Johnson, 135 S.Ct. 2551 (2015) {"Johnson II"), finding that the "residual clause" of the Armed Career Criminal Act was unconstitutionally vague. ECF No. 302, 306, 312. The Court reviewed submissions from both parties and Amicus and held a hearing on February 26, 2016. ECF No. 333.

II. DISCUSSION

Title 18 U.S.C. § 924(c)(1) provides a mandatory minimum sentence for a person who knowingly uses, carries or brandishes a firearm during and in relation to a crime of violence. 18 U.S.C. § 924(c)(1) (2012). The term "crime of violence, " as used in § 924(c), refers to a felony offense that either: "(A) has 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." § 924(c)(3). Subsection A is commonly referred to as the "force clause"; subsection B is commonly referred to as the "residual clause." United States v. Fuertes, 805 F.3d 485, 498 (4th Cir. 2015). While addressing the similar force clause of the Armed Career Criminal Act, the Supreme Court in Johnson v. United States {Johnson I) held that physical force means "violent force, that is, force capable of causing physical pain or injury to another person." 559 U.S. 133, 140, 176 L.Ed.2d 1.[1]

A. Categorical or Modified Categorical Approach

The primary question presented in this case is whether Hobbs Act robbery under 18 U.S.C. § 1951 can be considered a crime of violence under either the force clause or the residual clause of § 924(c). To determine whether an offense qualifies as a "crime of violence" under either clause, the Court must first determine whether it will employ the so-called "categorical approach" or the "modified categorical approach." Fuentes, 805 F.3d at 498. This initial determination is critical to the analysis. Under the categorical approach, the Court's review is limited to "the fact of conviction and the statutory definition of the offense" to determine if the relevant crime of conviction is a crime of violence. Id. "The modified categorical approach allows the court to examine approved documents, including an indictment, to determine which statutory alternative is implicated by the predicate offense." United States v. Evans, No. 5T5-CR-57-H, 2015 U.S. Dist. LEXIS 14277, at *4 (E.D. N.C. Oct. 20, 2015) (quoting Descamps v. United States, 133 S.Ct. 2276, 2284-85 (2013)). "The modified approach serves a limited function: It helps effectuate the categorical analysis when a divisible statute, listing offense elements in the alternative, renders opaque which elements played a part in the conviction." Descamps, 133 S.Ct. 2276 at 2283. The use of disjunctive language will not necessarily render a statute divisible, however. Rather, if a statute merely contains alternative means of satisfying a single element, and not alternative elements, the statute is not divisible. See United States v. Royal, 731 F.3d 333, 341 (4th Cir. 2013) (finding that "offensive physical contact" and "physical harm" were not alternative elements but were merely alternative means of determining the first element of assault under Maryland state law and therefore did not render the offense divisible). If the statute is indivisible, the categorical approach is used. Descamps, 133 S.Ct. at 2281.

Courts have reached differing conclusions as to whether the Hobbs Act is a divisible statute, subject to the modified categorical approach, or an indivisible statute, subject to the categorical approach. Compare United States v. Brownlow, No. l:15-cr-0034-SLB-SGC, 2015 U.S. Dist. LEXIS 144784 (N.D.Ala. Oct. 26, 2015) (modified categorical), United States v. Mackie, No. 3:14-CR-00183-MOC, 2015 U.S. Dist. LEXIS 132670 at *5 (W.D. N.C. Sept. 30, 2015) ("Here, the Hobbs Act is clearly a divisible statute as the language of the statute sets forth one or more elements of the offense in the alternative...."), and United States v. Anglin, No. 14-CR-3, U.S. Dist. LEXIS 151027, at *19 (E.D. Wis. Nov. 6, 2015) ("The court agrees that the [Hobbs Act] is divisible"), with United States v. Standberry, No. 3:15CR102-HEH, 2015 U.S. Dist. LEXIS 138355 (E.D. Va. Oct. 9, 2015) (applying categorical approach based on agreement of parties but suggesting modified categorical might be appropriate), and United States v. Merinord, No. 5:15-CR-136, 2015 U.S. Dist. LEXIS 145009, at *7 (E.D. N.C. 2015) ("It does not appear that the statute is divisible....").

This confusion is understandable because the Hobbs Act contains both divisible and indivisible provisions. 18 U.S.C. § 1951(a) states in relevant part:

Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.

(emphasis added). Clearly, there are multiple disjunctive phrases in this provision. But the relevant question is whether they represent alternative means of accomplishing one element or whether there are alternative elements proscribed for proving the crime. The answer is found in § 1951(b) wherein the Hobbs Act explicitly provides at least two alternative elements: one in subsection (b)(1) for robbery and an alternative for extortion in subsection (b)(2).[2] 18 U.S.C. § 1951(b); see also Modern Federal Jury Instructions: Criminal at § 50.01 (Instructions for Obstruction of Interstate Commerce by Robbery) and § 50.02 (Instructions for Obstruction of Interstate Commerce by Extortion). Thus, the Hobbs Act is divisible as there are two or more alternative sets of elements. The Court must therefore use the modified categorical approach but may only do so to determine which of these forms of the Hobbs Act (robbery or extortion) is at issue in this case. Descamps v. United States, 133 S.Ct. at 2286 ("[A] court may look to the additional documents to determine which of the statutory offenses ... formed the basis of the defendant's conviction."). Here, a review of the indictment makes it clear that this Defendant was charged with Hobbs Act robbery and not Hobbs Act extortion. See ECF No. 1 ("Gary Warren Hancock, Jr. did knowingly and unlawfully obstruct, delay and affect and attempt to obstruct, delay and affect commerce by robbery.") (emphasis added).

That does not end the inquiry. Hobbs Act robbery is defined in 18 U.S.C. § 1951 (b)(1) as follows:

[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 ...

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