Hobbs Act Robbery is Never a `Crime of Violence` for Federal Sentencing Enhancement Purposes

Finding that Hobbs Act robbery is never a “crime of violence” under the U.S. Sentencing Guidelines (USSG), the U.S. Court of Appeals for the Ninth Circuit held on August 16, 2021, that an enhanced sentence based on a prior Hobbs Act robbery conviction wasn`t harmless and remanded for resentencing.

Steven Prigan was convicted of being a person prohibited from possessing a firearm, which was also unregistered, in violation of 18 U.S.C. sec 922(g) and 26 U.S.C. sec 5841. He was sentenced to five years and four months in federal prison, which was enhanced because of his prior Hobbs Act robbery conviction under 18 U.S.C. sec 1951. Without that enhancement, he faced around four years in prison. When Prigan challenged the enhancement, the district court found that Hobbs Act robbery was a crime of violence and applied the enhancement.

Hobbs Act Robbery is Categorically Not a Crime of Violence Under the Guidelines

Prigan raised his properly-preserved sentencing claim on appeal, and the Ninth Circuit agreed that Hobbs Act robbery could not be a crime of violence for USSG purposes. Reviewing whether Prigan`s prior conviction was a crime of violence under the Guidelines, the Court did so de novo, or without consideration of the district court`s findings. Applying the “categorical approach,” See Descamps v. United States, 570 U.S. 254 (2013), the court analyzed the elements of Hobbs Act robbery, and not Prigan`s conduct during the prior offense.

Federal Hobbs Act robbery has the following elements:

[1] The unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, [2] 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. (emphasis supplied)

The Court then compared the elements of the enhancement applied to Prigan, under USSG sec 2K2.1(a)(3), which provided for an enhanced sentence if there`s a prior conviction for a crime of violence. That is defined under USSG sec 4B1.2(a) as:

(1) has an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use of unlawful possession of a firearm described in 26 U.S. 5845(a) or explosive material as defined in 18 U.S.C> sec 814(c).

There were actually three different provisions Prigan`s prior could qualify under in this definition: (1) the “force” clause, (2) the enumerated offense of robbery, or (3) the enumerated offense of extortion. The Court took each provision in turn and found that Hobbs Act robbery fit none of these provisions.

Hobbs Act Robbery is Too Broad to Fit the Force Clause

This first provision, called the “force” clause, requires that the use of force be “against the person of another.” However, Hobbs Act robbery goes further, by allowing a conviction for use of force against someone`s property.

Hobbs Act robbery covers using force or threatening to use force against a person or property, but sec 4B1.2(a)`s force clause does not extend to force or threats of force against property. Because Hobbs Act robbery sweeps more broadly that sec 4B1.2(a)`s force clause, Hobbs Act robbery is not a categorical match for sec 4B1.2(a)`s force clause.

Hobbs Act Robbery is Too Broad to Fit Generic Federal Robbery

The second provision actually lists robbery under USSG sec 4B1.2(a), but Hobbs Act robbery is not the “robbery” contemplated there. Instead, generic federal robbery is defined as “aggravated larceny, containing at least the elements of misappropriation of property under circumstances involving immediate danger to the person.” Once again, Hobbs Act robbery goes too far by including harm to property in addition to people.

Although Hobbs Act robbery covers threatening to use force against a person or property, generic federal robbery does not cover threats of force against property. Because Hobbs Act robbery sweeps more broadly than generic federal robbery, Hobbs Act robbery is not categorically “robbery” under sec 4B.2(a)`s enumerated-offenses clause.

Hobbs Act Robbery is Too Broad to Match Generic Extortion

The third provision is the enumerated offense of extortion. If Hobbs Act robbery could match generic federal extortion, then it could qualify as a crime of violence under USSG sec 4B1.2(a). Generic federal extortion is defined as “obtaining something of value from another by the wrongful use of (A) force, (B) fear of physical injury, or (C) threat of physical injury.” United States v. Bankston, 901 F.3d 1110 (9th Cir. 2018). And again, Hobbs Act robbery goes too far by including harm to property as well as people.

Hobbs Act robbery covers threatening to use force against persons or property, but the Guidelines` definition of extortion does not extend to threats of force against property. Because Hobbs Act robbery sweeps more broadly than extortion under sec 4B1.2(a)`s enumerated-offenses clause, Hobbs Act robbery is not categorically extortion under sec 4B1.2(a)`s enumerated-offense clause.

The Enhancement was Not a “Harmless Error”

An error calculating a Guidelines range is reviewed for harmless error. But the Ninth Circuit has held that an error calculating a Guidelines range “is a significant procedural error that requires us to remand for resentencing.” United states v. McCarns, 900 F.3d 1141 (9th Cir. 2018). For such an error to be harmless, the district court must explain its reason for the extent of the variance. Here, the variance was 11 to 21 months. The district court failed to provide any reasoning for its upward variance in Prigan`s case.

[T]he district court rooted its sixty-four-month sentence squarely in the incorrect Guidelines range of fifty-seven to seventy-one months, expressly stating it “believe[d] that a guideline sentence is appropriate.” Nothing in the record demonstrates that the district court would have varied upward and imposed a sixty-four-month sentence is Prigan`s correct Guidelines range of forty-six to fifty-seven months of imprisonment was kept in mind throughout the process.

The Court therefore vacated Prigan`s sentence and remanded with instructions for the district court to conduct a new sentencing hearing without consideration of his prior Hobbs Act robbery conviction. See United States v. Prigan, 2021 U.S. App. LEXIS 24330 (9th Cir. Aug. 16, 2021).