Hobbs Act robbery is not a “crime of
violence” under the Sentencing Guidelines. So holds the Third Circuit in United States v. Scott,
No. 20-1514, 2021 WL 4302516 (3d Cir. Sept. 22, 2021). Under Scott, Hobbs Act robbery is not
a predicate for the career offender guideline, § 4B1.2(a), or its
cross-referenced provisions, including the firearm guideline,
§ 2K2.1(a).
As Court-watchers will observe, Scott is far from breaking news. The opinion makes precedential a holding reached over two years ago in a not precedential opinion of a Third Circuit panel. Six other Courts of Appeals have held the same.
Scott should apply to the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e)(2)(B)(i).
The outcome, however, is different under 18 U.S.C. § 924(c)(3)(A), which defines “crime of violence” slightly differently. (Section 924(c) refers to force against “person or property”). Under § 924(c), Hobbs Act robbery is a crime of violence. See United States v. Walker, 990 F.3d 316, 326 (3d Cir. 2021).
Walker notwithstanding, defendants should preserve an objection to Hobbs Act robbery as a § 924(c) predicate. This area of law remains unsettled pending a decision by the Supreme Court in United States v. Taylor (# 20-1459)—a case raising the question whether attempted Hobbs Act robbery is a crime of violence under § 924(c). The Supreme Court will hear argument in Taylor on December 7, 2021.
Finally, a note to appellate wonks: Scott granted relief on plain error review. Most importantly, the majority found that the Guidelines error was “plain” under prong two of the plain error test. Judge Phipps, dissenting, would have denied relief on prong two.
