Issues
Does attempted robbery under the Hobbs Act qualify as a “crime of violence” under a federal law that imposes a mandatory minimum sentence of five years for using a gun during a crime of violence?
This case asks the Supreme Court to determine whether attempted robbery under the Hobbs Act qualifies as a “crime of violence” under a federal statute that imposes a mandatory minimum sentence of five years for using a gun during a crime of violence. The United States argues that the Hobbs Act treats an attempted and a completed robbery no differently for the purposes of determining a crime of violence; moreover, even if the attempted use of physical force does not cover attempted robbery, the threatened use of such force does include attempted Hobbs Act robbery. In response, Justin Taylor argues that an attempted Hobbs Act robbery is not a crime of violence, because it does not require an act that would constitute the attempted use or threatened use of force. The outcome of this case has important implications for consistency in the application of law and proportionality in the sentencing system.
Questions as Framed for the Court by the Parties
Whether 18 U.S.C. § 924(c)(3)(A)’s definition of “crime of violence” excludes attempted Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a).
Facts
In 2003, respondent Justin Taylor (“Taylor”) agreed to sell marijuana to Martin Sylvester (“Sylvester”). United States v. Taylor at 205. He then conspired with an unnamed co-conspirator to steal Sylvester’s money instead. Id. When Sylvester and the co-conspirator met to complete the transaction, the now-armed co-conspirator demanded Sylvester’s money. Id. After Sylvester refused, the co-conspirator shot and killed Sylvester. Id.
Taylor was charged with seven offenses, including conspiracy to commit Hobbs Act robbery and use of a firearm in furtherance of a “crime of violence.” Id. As laid out in 18 U.S.C. § 1951(b), Hobbs Act robbery is theft that occurs with actual or threatened force. Derived from 18 U.S.C. 924(c)(3), a “crime of violence” is a felony that involves the use, attempted use, threatened use, or risk of physical force against another’s body or property. Taylor pled guilty to both charges, while the remaining five charges were dismissed by the government. Id. Taylor was sentenced to 360 months of imprisonment: 240 months for the conspiracy conviction and 120 months for the use of a firearm in furtherance of a “crime of violence.” Id. at 206.
Initially, Taylor tried to appeal his sentence. United States v. Taylor at 206. After that appeal was dismissed, Taylor twice moved to vacate his sentence under 28 U.S.C. § 2255, which allows prisoners to challenge their convictions and sentences in the district in which they were convicted and sentenced. Id. The District Court for the Eastern District of Virginia denied his first motion in 2015. Id. However, the Supreme Court of the United States subsequently narrowed the definition of a “violent felony” in Johnson v. United States (“Johnson”) and also in Welch v. United States held that this new definition should be applied retroactively. Id. Given those changes to the law, the Fourth Circuit granted Taylor permission to file another § 2255 motion in 2016. Id.
Taylor requested that his conviction for using a firearm in furtherance of a “crime of violence” be vacated, because, post-Johnson, conspiracy to commit Hobbs Act robbery and attempted Hobbs Act robbery cannot be classified as “crimes of violence.” Id. The district court denied Taylor’s motion, ruling that Hobbs Act robbery was still a “crime of violence” under 18 § 924(c)(3). Id. Thus, the district court upheld Taylor’s conviction based on an attempted Hobbs Act robbery. Id.
Taylor next petitioned the Fourth Circuit Court of Appeals for a certificate of appealability. United States v. Taylor at 75. Simultaneously to Taylor’s petition, the Fourth Circuit nullified several portions of 18 U.S.C. § 924(c)(3). Id. In addition, the Fourth Circuit also decided a related issue in United States v. Simms, ruling that conspiracy to commit Hobbs Act robbery does not qualify as a “crime of violence” under the statute. Id. at 76. These shifts in the Fourth Circuit’s rulings had potential ramifications for Taylor’s case, and his petition was granted. Id. Around that same time, the Supreme Court also invalidated 18 U.S.C. § 924(c)(3), striking down the statute as too vague in United States v. Davis (“Davis”). United States v. Davis at 2319.
Citing the Supreme Court’s holding in Davis, the Fourth Circuit vacated Taylor’s conviction under 18 U.S.C. § 924(c)(3) and remanded the case for resentencing. United States v. Taylor at 73. The government petitioned for the court to rehear the case en banc, which the Fourth Circuit denied. Brief for Petitioner, United States, at 9. The government then petitioned for a writ of certiorari on April 14, 2020, which the United States Supreme Court granted on July 2, 2021.
Analysis
HOBBS ACT ROBBERY AND THE USE OF FORCE
Petitioner United States contends that, under the Hobbs Act, an attempted robbery and a completed robbery are treated no differently. Brief for Petitioner, United States at 18. The United States argues that Congress, in the elements clause of 18 U.S.C. § 924(c)(3) (“§ 924(c)(3)”), utilized the broad language of “use” “attempted use” and “threatened use” of force to cover all crimes involving the threat of violence, even incomplete attempts. Id. The United States maintains that the definition of “use” often includes cases where physical violence never occurred, such as pointing a gun at someone without ever pulling the trigger. Id. at 21. The United States also points out that it is well established that a person can be charged with an attempted use of violence. Id. Thus, the United States reasons that combining these two concepts means that attempted use of force includes any situation where a defendant tries to take a “substantial step” to “use” force, even if never intending for any physical contact to occur. Id.
If the “attempted use” element of § 924(c)(3) does not cover attempted robbery, the United States alternatively contends that the “threatened use” element of § 924(c)(3) clearly includes attempted Hobbs Act robbery because an attempt necessarily involves a threat. Brief for Petitioner at 23. The United States maintains that an action is considered a threat if it would be “objectively” threatening to a “reasonable person.” Id. at 16. The United States also highlights that the Supreme Court previously allowed a threat to be made without ever being communicated in United States v. Elonis (“Elonis”). Id. at 23–24. The United States notes that a jury must find a defendant acted in a way “that was sufficiently certain, if unchecked, to culminate in taking property through physical harm or the threat of it” to establish an attempted Hobbs Act robbery. Id. at 22. Therefore, the United States asserts that a reasonable person would find that any defendant who takes the substantial step required for an attempted robbery conviction necessarily has threatened the use of force. Id. at 23–24.
Respondent Taylor counters that an attempted Hobbs Act robbery does not require an act that constitutes the attempted or threatened use of force. Brief for Respondent, Taylor at 11. Taylor asserts that the Hobbs Act directly covers “attempted threats of force,” which do not meet any of the § 924(c)(3) requirements because a defendant can intend to threaten force while only taking a nonviolent substantial step towards the attempted act. Id. at 11–12. Since an attempted threat need not involve a violent substantial step, Taylor contends an attempted threat does not involve the use of force because statutory interpretation standards require “use” to be given a normal meaning: “the application of force.” Id. at 13. Taylor argues that the rule of interpretation that requires “constru[ing] language in its context” similarly supports “use” being interpreted as requiring actual physical contact, and not merely any possible use of force. Id. at 21. Additionally, Taylor argues that an attempted threat is not categorically the same as an attempted use of force given that a defendant can be convicted for a threat without planning on ever using physical force. Id. at 15. Taylor maintains that the anti-surplusage rule of interpretation, which holds no statutory section should be read redundantly, requires attempted threats to be distinguished from attempted use of force. Id. at 16.
Further, Taylor maintains that the court in Elonis interpreted a threat of force to require that the threat be communicated because the definitions of “threats” and the examples at issue in Elonis all involved communicated threats. Brief for Respondent at 26. Given an attempted threat may be made without any communication, Taylor asserts that an attempted threat may not involve any threat of force, such as if a defendant stopped in route to commit robbery. Id. at 17. Taylor further argues that the Model Penal Code specifically notes an attempted threat of force does not necessarily constitute a threat of force. Id. at 18.
THE HISTORY AND PURPOSE OF THE HOBBS ACT
The United States argues that Congress intended—and the legislative history supports—that the broad structure of the elements clause of § 924(c)(3) include attempted or threatened robberies. Brief for Petitioner at 26. The United States maintains that an attempted Hobbs Act robbery is naturally included as “crime of violence” because an attempted robbery often causes more violence than a successful robbery. Id. at 27. The United States asserts that violent confrontations with police and victims often cause robberies to fail, so while unsuccessful, the defendants must have at a minimum threatened force in the process. Id. at 30. Given the broad language of the elements clause of § 924(c)(3) and the focus on violence, the United States claims that Congress intended for defendants who were thwarted in the process of a violent crime to be included by the broad elements clause language, as opposed to being excluded, and thus rewarded, for their involvement in those situations that often cause greater violence. Id. at 32.
Taylor counters that the legislative history shows that the elements clause of § 924(c)(3) never included all violent attempts. Brief for Respondent at 28. Rather, Taylor claims Congress included the separate residual clause of § 924(c)(3), which was struck down by the Supreme Court in United States v. Davis for vagueness, to cover certain violent crimes that may not meet the specific requirements of the elements clause. Id. Since the residual clause was invalidated for lack of clear guidelines, Taylor maintains that the United States’ interpretation of the elements clause should be discarded because it would involve the same level of unpredictable judicial analysis to determine the risk of violence in robberies. Id. at 30. Taylor claims this is merely an erroneous attempt by the United States to use the Supreme Court to recover the residual clause by broadening the elements clause, which is a problem that should instead require Congressional action to resolve. Id. at 32–33. Also, Taylor asserts that the legislative history does not support an interpretation of the elements clause to include all attempts because such language was expressly rejected in the Armed Career Criminal Act (“ACCA”), nor is it referred to in Congressional reports on § 924(c)(3). Id. at 35, 37.
SUBSTANCE OF ATTEMPTED THREAT
The United States asserts that, while the Fourth Circuit agreed that attempted common law robbery fulfills the ACCA’s elements clause for a violent felony, it misunderstood the requirements of attempted Hobbs Act robbery as substantially different from a common law robbery. Brief for Petitioner at 33. Contrary to the opinion of the Fourth Circuit, the United States asserts that a Hobbs Act robbery is merely a common law robbery that also affects interstate commerce and requires the defendant to take action against the victim’s wishes. Id. The United States thus maintains that an attempted Hobbs Act robbery requires an act that would satisfy the § 924(c)(3) elements clause requirement of “physical force” because a completed Hobbs Act robbery, similarly to common law robbery, involves “physical force.” Id. at 34.
Further, the United States contends that the Fourth Circuit improperly imagined situations where the Hobbs Act covers situations of attempted threats which would not meet the elements clause requirements under a categorical approach. Brief for Petitioner at 35. The United States argues, and notes other Circuits have also acknowledged, that a defendant essentially threatens the use of force in all cases where their actions were substantial enough to lead to an attempted Hobbs Act robbery conviction. Id. The United States thus contends that, even if the Fourth Circuit could imagine an attempted threat that did not satisfy the elements clause, these narrow possibilities do not satisfy the “realistic probability” requirement such that attempted Hobbs Act robbery could be excluded from the coverage of § 924(c)(3). Id. at 37.
Taylor counters that, even if one finds that the elements clause of § 924(c)(3) covers common law robbery, the elements clause does not include some forms of attempted robbery that were directly excluded in the ACCA language and in § 924(c)(3). Brief for Respondent at 25. Contrary to the United States’ position, Taylor asserts that the ACCA elements clause, as with the § 924(c)(3) elements clause, requires “violent force” to constitute a crime of violence. Id. at 38. Thus, Taylor argues that the broad coverage proposed by the United States would undercut numerous decisions of previous courts requiring actual violent contact. Id. Given that an attempted threat does not involve any physical force like an assault, Taylor contends that an attempted threat does not categorically constitute a “crime of violence” because this minimum conduct would not satisfy the § 924(c)(3) elements clause. Id. at 13, 37.
Taylor further maintains that attempted threats do not meet the elements analysis regardless of whether they actually involve violence because the Hobbs Act criminalizes nonviolent attempted threats too. Brief for Respondent at 40. Taylor argues that past cases requiring a significant probability of the crime involved statutes that did not expressly criminalize the act. Id. at 43. Here, Taylor contends the Hobbs Act is clearly broader than the elements clause because it criminalizes mere attempted threats of force. Id. Contrary to the United States’ claims, Taylor argues that nonviolent attempted threats occur frequently. Id. at 45. Furthermore, Taylor contends that the Hobbs Act is ambiguous enough to be subject to the rule of lenity, and thus must be interpreted in the defendant’s favor. Id. at 49.
Discussion
INCONSISTENCIES IN THE APPLICATION OF LAW
The United States asserts that the inclusion of Hobbs Act robbery in § 924(c)(3)’s “crime of violence” definition is common sense. Brief for Petitioner, United States, at 25. The United States suggests that this inclusion of Hobbs Act robbery is consistent with Congress’s reading of similar language. Id. The United States characterizes its approach not as a technicality of interpretation, but rather as reflecting an understanding of exactly how Congress intended to classify offenses such as attempted robberies. Id. According to the United States, the Fourth Circuit’s approach would lead to untenable inconsistencies in which offenders face enhanced punishment under the statute. Id. at 37. Specifically, the United States argues that defendants involved in attempted robberies that result in murder or other forms of violence would be exempt from § 924 liability under the Fourth Circuit approach, whereas defendants who complete their robberies without incident, thereby causing comparatively less damage, face steeper repercussions. Id.
Neal Goldfarb, an attorney writing in support of Taylor with expertise in linguistics, counters that the United States’ position is inconsistent. Brief of Amicus Curiae, Neil Goldfarb, in support of Respondent at 27. Specifically, Goldfarb argues that the government is asking that statutes be interpreted differently based on the circumstance, which Goldfarb claims would undermine the notion that “the meaning of a word or phrase as used […] should remain stable across all cases in which the statute is applied.” Id. Goldfarb asserts that there would be broad consequences if the Supreme Court rules in favor of the government, comparing the possibility to “open[ing] Pandora’s Box” that would likely lead to more inconsistencies in legal outcomes in the same categories of cases. Id. at 30. In addition, Goldfarb highlights the potential challenges this would cause for courts by requiring judges evaluating when the government’s interpretation applies to perhaps need to revisit other statutes too, with no clear limits on when to stop. Id. Should that issue ever be resolved, Goldfarb further asserts that courts would then need to consider embedded questions about interpreting statutes in nearly every case, again with no clear criteria, thus causing more inconsistencies. Id.
MANDATORY MINIMUMS AND PROPORTIONATE SENTENCING
The United States asserts that Congress left no ambiguity about its intent for § 924 and its mandatory minimum sentence to apply to attempted Hobbs Act robbery. Brief for Petitioner, United States, at 25. The United States argues that attempted Hobbs Act robberies often involve more force than completed crimes on their own, and thus it is logical that Congress meant to subject their perpetrators to a harsh penalty. Id. at 28. For example, the United States highlights the possibility of forceful resistance to attempted armed robberies, which could simultaneously increase the likelihood of violent confrontation while decreasing the likelihood that the crime of robbery is completed. Id. at 29. The United States further contends that the Fourth Circuit’s ruling has caused “real harms” and prevented the prosecution under the statute for “real and violent criminal conduct.” Id. at 37. Thus, the United States argues that, under the Fourth Circuit’s decision, guilty and more dangerous defendants would be able to escape liability and punishment for attempted robberies that result in serious violence such as murder. Id.
The National Association of Criminal Defense Lawyers (“NACDL”) and Families Against Mandatory Minimums (“FAMM”), in support of Taylor, counter that while a “crime of violence” comes with a minimum sentence of five years, the exact duration of the sentence will depend on other factors that take into account the broader circumstances of the crime, like the type of gun used, the defendant’s degree of involvement, and any prior convictions. Brief of Amici Curiae NACDL and FAMM, in support of Respondents at 14. NACDL and FAMM argue that mandatory minimum provisions reflect communities’ moral consensus, and thus should be decided by legislatures aware of what their constituencies’ views on punishment are in order to prevent the judiciary from unnecessarily issuing sentences in excess of what is necessary. Id. at 15. NACDL and FAMM contend that the interpretation proposed by the United States would expand mandatory sentencing beyond the limits of the language, which would cause widespread consequences such as the erosion of proportionality in sentencing, which would in turn undermine the sentencing system’s core foundations of fairness. Id. at 16. NACDL and FAMM thus contend that the Supreme Court should not expand the applicability of the mandatory minimum sentencing in this statute without ensuring that Congress intended that outcome. Id.
Conclusion
Acknowledgments
Additional Resources
- Jordan S. Rubin, Supreme Court to Consider if Attempted Robbery is ‘Violent’, Bloomberg Law (July 2, 2021).
- United States v. Taylor, Ballotpedia (last accessed Dec. 1, 2021).