Sunday, February 28, 2021

  

Failure to group certain counts as required by the Sentencing Guidelines is plain error requiring resentencing even if the sentencing court imposed a downward variance




 

In United States v. Ahuirre-Miron, No 19-3134 (3d Cir. 2/23/2021),

The defendant pled guilty to five child-pornography crimes: three counts of production, in violation of 18 U.S.C. § 2251(a), (e); one count of receipt, in violation of 18 U.S.C. § 2252(a)(2), (b)(1); and one count of possession, in violation of 18 U.S.C. § 2252(a)(4)(B), (b)(2). At sentencing, without objection, the District Court adopted the P.S.R.’s calculation of the Sentencing Guidelines. After it imposed a downward variance to offense level 42, reducing the Guidelines sentence from 360 months to life to 360 months, the District Court imposed a sentence of 360 months.

 

The Sentencing Guidelines require that the production counts be grouped with the receipt and possession counts according to U.S.S.G. § 3D1.2(c)— all counts involving substantially the same harm must be grouped. Counts involving “substantially the same harm” when one of the counts embodies conduct treated as a specific offense characteristic in, or other adjustments to, the guideline applicable to another of the counts must be grouped for calculation purposes. A “pattern enhancement” is imposed under the Sentencing Guidelines under U.S.S.G. §2G2.2(b)(5) if the offender engages in a pattern of activity involving the sexual abuse or exploitation of a minor. If the District Court had properly grouped the production counts when computing the offense level, the offense level would have been 42 rather than 43.

 

Third Circuit precedent, United States v Ketcham, 80 F.3d 789, 794 (3d Cir. 1996) required grouping of the production counts in this case. The panel rejected the government’s argument that Ketchum’sholding about grouping was dicta.

 

Conducting a plain-error analysis, the panel looked to the holding in Molina-Martinez v. United States, 136 S.Ct. 1338, 1345 (2016) that regardless of the ultimate sentence, being sentenced under the wrong guidelines range satisfies the third prong of plain-error review. As the defendant met the first two prongs of plain-error review— that there was an error and it was plain— resentencing was ordered.

 

Congrats to Abigail Horn & Brett Swetzer of the EDPa Federal Defenders for a nice win.

 

N.B. fd.org has great resources for all sorts of sentencing issues and should be consulted whenever reviewing a P.S.R.’s sentencing calculations. The United States Sentencing Commission website also allows the download of the current Sentencing Guidelines and updates. It also offers a Guidelines calculator, which, when used in tandem with the fd.org materials, helps untangle federal criminal law’s version of the uncertainty principle

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Tuesday, February 09, 2021

District court erred by: (1) failing to inquire into reasons for defendant's dissatisfaction with appointed counsel; (2) failing to make independent determination regarding consulation between defendant and appointed counsel about PSR; (3) imposing certain conditions of supervised release; and imposing special assessment under JVTA

 Defendant Charles Senke was convicted after trial for attempted sex offenses involving a minor. He raised four objections on appeal. The Third Circuit affirmed his convictions, but vacated and remanded for further proceedings surrounding sentencing. United States v. Senke, __ F.3d __, 2021 WL 244056 (3d Cir. Jan. 25, 2021).

(1) Although Senke did not specifically request substitute counsel in his pro se pretrial motion complaining about his attorney, the district court was required to inquire into reasons for defendant's dissatisfaction with his appointed attorney. Senke's communication to district court raised serious issues, including that attorney was not preparing for trial or reviewing evidence with defendant, attorney brought strained relationship to district court's attention at pretrial conference that defendant did not attend, explaining that conflict stemmed from his refusal to file additional pretrial motions and defendant's insistence that he do so, and district court had no good reason to believe that communication issues were resolved. However, Senke's claim did not constitute one of structural error requiring per se reversal. He could not assert he was deprived of counsel of choice because he had appointed counsel. He also was not claiming that he had been deprived of his right to represent himself. Instead, he claimed he was deprived of ineffective assistance of counsel. Acting in accordance with its general procedure, the Third Circuit declined to entertain Senke's claim of ineffective assistance of counsel on direct appeal where Senke did not attempt to show prejudice and district court had not yet evaluated the matter. Instead, it upheld Senke's conviction without prejudice to his ability to bring an ineffective assistance of counsel claim in a 28 U.S.C. § 2255 proceeding. 

(2) District court plainly erred in failing to independently determine that defendant had opportunity to discuss presentence investigation report (PSR) with counsel as required by Fed. R. Crim. P. 32(i)(1)(A). Though counsel submitted sentencing memorandum and defendant separately submitted objections to PSR, indicating that both had read the PSR, the district court did not verbally ask defendant if he read and discussed PSR with his attorneys, sentencing memorandum did not state that defendant and counsel discussed the PSR, counsel submitted his objection to probation officer before receiving defendant's objections, and counsel only mentioned his own objection at sentencing and not defendant's objections. Despite the error, Senke suffered no prejudice as would warrant reversal of sentence. Though Senke asserted that, if he had discussed the PSR with counsel, he could have challenged the recommendation of certain special conditions of supervised release and recommendation of special assessment fee, neither of those matters could have affected Senke's criminal history category, nor his applicable Sentencing Guidelines range, and Senke was sentenced to the statutory mandatory minimum.

 (3) The Third Circuit vacated 5 separate conditions of supervised release prohibiting Senke from possessing or using computers or other electronic communications or data storage devices or media, and requiring him to obtain permission from his probation officer to use the internet, to have monitoring software installed on his computer, and to submit to searches of his electronic devices. The Court found the conditions were not sufficiently tailored to goal of restricting internet and computer use to keep Senke from preying on children. Instead, the restrictions prohibited Senke from participating in all sorts of activities, while doing nothing to further public safety. In a dissenting opinion, Judge McKee admonished district court judges to stop imposing "knee-jerk and overly broad restrictions" on computer and internet usage despite repeated admonitions against them. 

(4) Finally, the Third Circuit reversed imposition of a $10,000 special assessment under the Justice for Victims of Trafficking Act of 2015 (JVTA) based on a violation of the ex post facto clause. All of Senke's convictions were based on offenses committed prior to JVTA's 2015 enactment.

Despite equitable concerns, property was not subject to criminal forfeiture where third party's interest in forfeited property was superior to defendant's interest

Defendant Lucas was convicted of wire fraud and related offenses for attempting to take control of Burke Farm. Lucas consented to forfeiture of Burke Farm because it was purchased with proceeds of his fraud. Diamond Developers, a third party company, interceded in the forfeiture proceedings, arguing that it held a superior interest in Burke Farm because Diamond Developers owned the farm prior to Lucas's crimes. Diamond Developers acquired Burke Farm in 2004. Lucas submitted a fraudulent loan application to acquire Diamond Developers in 2009. He fraudulently obtained a mortgage on the farm in February 2010. Lucas, his wife, and father-in-law acquired Diamond Developers one month later.  The District Court granted the forfeiture order over Diamond Developers' objection.

 In United States v. Lucas, __ F.3d __, 2021 WL 193073 (3d Cir. Jan. 20, 2021), the Third Circuit reversed the District Court's decision, finding that if third party's interest in forfeited property, at time of criminal acts, was superior to criminal defendant's interest—or if third party had interest and defendant did not—then third party's right outweighs interest that government acquires when it steps into defendant's shoes at time of offenses. While the Court recognized the government's concerns about the equities of the case, the plain language of the statute controlled. The Court also noted that the government could have sought criminal forfeiture of Lucas's interest in Diamond Developers and civil forfeiture of his wife and father-in-law's interests. Because the government did not follow the rules or the plain language of the forfeiture statute, it was not entitled to confiscate the property.

Heightened standard of proof for "willfully" element does not apply to every charge brought under the Federal Election Commission Act (FECA)

 Defendant Smukler was convicted on multiple charges of fraud and false statements under the Federal Election Commission Act (FECA). On appeal, United States v. Smukler, __ F.3d __, 2021 WL 245262 (Jan. 26, 2021), Smukler argued that the district court erred in not applying a heightened "willfully" standard to his charges under FECA. The Third Circuit noted that "willfully" has at least three levels of interpretation: (1) defendant acted intentionally, knowingly, or voluntarily, as distinguished from accidentally; (2) defendant acted not merely voluntarily, but with a bad purpose, that is, with knowledge that his conduct was, in some general sense, unlawful; and (3) defendant actually knew of the specific law prohibiting the conduct. The middle level of willfully - defendant acted with bad purpose - operates in most criminal cases. In some rare instances, however, involving a highly technical statute or complex statute, the highest level of willfully - defendant actually knew of specific law prohibiting the conduct - is required for conviction.

Relying on United States v. Curran, 20 F.3d 560 (3d Cir. 1994), the Court agreed that the heightened standard of willfully applied to prosecutions under the aiding and abetting (18 U.S.C. § 2) and false statements (18 U.S.C. § 1001) statutes in the federal election law context given that election offenses are rarely prosecuted in tandem under these two statutes. But the Court found no similar level of rarity or complexity in substantive charges brought under FECA. It found those rules to be reasonably straightforward, written in common terms, intuitive, and less complex than the anti-structuring or tax law cases where the heightened standard for willfully had previously been applied. Accordingly, and consistent with precedent, the Third Circuit applied the ordinary reading of willfully to Smukler's substantive offenses under FECA.  

Thursday, January 21, 2021

Convictions vacated against bank executives: government must prove a statement false under each objectively reasonable interpretation of an ambiguous reporting requirement

United States v. Harra, --- F.3d ---, 2021 WL 97446, Appeal Nos. 19-1105, 19-1136, 19-1190, 19-1237 (Jan. 12, 2021); https://www2.ca3.uscourts.gov/opinarch/191105p.pdf

Wilmington Trust financed commercial real estate/construction projects. Extensions were common: the loan documents reserved its right to “renew or extend (repeatedly and for any length of time) this loan . . . without the consent of or notice to anyone.” Wilmington called this the “waiver process” and its internal policy did not classify loans in the “waiver process” as past due if the loans were in the process of renewal and interest payments were current. Even though regulatory agencies required Wilmington to report loans that were “contractually past due,” Wilmington excluded loans in the “waiver process” from those it reported as “past due” to the SEC and the Federal Reserve. Around 2009, these commercial loans were a large feature of Wilmington’s portfolio and represented over $300 million in loans. The defendant bank executives argued that under a reasonable interpretation of the reporting requirements, they properly excluded these loans from the “past due” classification. The District Court denied their requests to introduce evidence concerning or instruct the jury about that alternative interpretation. The jury convicted on all counts, including conspiracy to defraud the United States, commit securities fraud, and make false statements to regulators, 18 U.S.C. § 371; securities fraud, 18 U.S.C. § 1348; making false statements to the SEC and Federal Reserve, 18 U.S.C. § 1001 and 15 U.S.C. § 78m; and falsely certifying financial reports, 18 U.S.C. § 1350.

The Third Circuit found that, to prove falsity beyond a reasonable doubt, the government must prove a statement false under each objectively reasonable interpretation of an ambiguous reporting requirement. That is, the government must prove either (1) that its interpretation of the reporting requirement is the only objectively reasonable interpretation or (2) that the defendant’s statement was also false under the alternative, objectively reasonable interpretation. To hold otherwise would violate Due Process and the government’s burden to prove each element: because falsity and knowledge are distinct elements, the government must prove a statement was false beyond a reasonable doubt, regardless of the defendant’s subjective intent to lie.

Under this standard, the evidence was insufficient on the false statements convictions and the Court entered a judgment of acquittal. The Court found sufficient evidence of an alternative theory of liability on the conspiracy and securities fraud convictions, improper short-term mass waivers, but the error as to the false statements theory of liability infected all counts and was not harmless and so the conspiracy and securities fraud convictions were vacated and remanded for retrial.

 

 

 

 

 

 

 

 

 

 


Enticement of a minor and travel case: sufficient evidence, no misstatement of law, no entrapment, no plain error in sentencing enhancement for misrepresenting age and sexual orientation

United States v. Davis, --- F.3d ----, 2021 WL 97427, Appeal No. 19-1696 (3d Cir. Jan. 12, 2021); https://www2.ca3.uscourts.gov/opinarch/191696p.pdf

Davis answered a Craigslist ad supposedly about an 18-year old “Wild Child” and then chatted over an eight-day period with an undercover officer acting as a 14-year old minor about sex and other things. Davis ultimately drove from New York to meet the minor in a parking lot in Pennsylvania, bringing condoms with him. He was charged with attempting to entice a minor to engage in sexual conduct, 18 U.S.C. § 2422(b), and for traveling with intent to engage in illicit sexual conduct, 18 U.S.C. § 2423(b). His defenses were that he thought he was role-playing with an adult and that he was entrapped. He was convicted by a jury on both counts and sentenced to 127 months imprisonment. The Third Circuit rejected four points on appeal.

The evidence was sufficient: Attempt requires proof of a requisite intent and a substantial step. Although sometimes a substantial step may supply unequivocal evidence of criminal intent, it need not always do so. If the government presents evidence (need not be unequivocal) of criminal intent independent of a defendant’s substantial step, then the substantial step need only corroborate criminal intent. Davis’s post-arrest confession to knowing the minor’s age and their text communications are each evidence of criminal intent independent of that demonstrated by his substantial steps (travel to the prearranged meeting place and possession of condoms).  

The prosecutor did not misstate the law in closing: The government did not err in arguing that post-enticement acts like travel or the possession of condoms could be a substantial step for enticement of a minor. The substantial step inquiry corroborates criminal intent and establishes that a defendant went beyond mere planning. The substantial step must relate to but need not be the exact conduct criminalized by the statute. Here travel and condom possession related to the enticing communications because they demonstrated the communications were not “all hot air.”

Davis was not legally entrapped: The Court found Davis was not entrapped as a matter of law. To disprove the affirmative defense of entrapment, the government can show predisposition by “a willingness to commit the crime for which he is charged as evidenced by the accused’s ready response to the inducement.” The Court found the chats showed that when Davis discovered he was corresponding with a 14-year-old who posted a personals ad for sex, his “ready response” acknowledged her age and asked if she wanted to meet that day. Also, his reluctance to engage in sexually explicit conversation may be evidence of a misguided attempt to avoid incriminating himself, not necessarily evidence of his non-predisposition to violate § 2422(b). 

The sentencing enhancement was not plain error: The Court ruled it was not plain error to apply a two-level sentencing enhancement for misrepresenting age and sexual orientation to influence a minor to engage in sexual conduct. See U.S.S.G. § 2G1.3(b)(2)(A) (enhancement when conduct involves knowing misrepresentation of a participant’s identity to . . . induce the travel of a minor to engage in prohibited sexual conduct). It did not matter that Davis ultimately corrected the misrepresentation of his age if he lied about it in an effort to make the minor feel comfortable. His objection to the enhancement based on a lie about sexual orientation failed under plain error because the government’s theory was reasonable: he misrepresented his sexual orientation to assure the minor he was not a sexual threat in his continued effort to meet her.

Friday, June 28, 2019

Court of Appeals joins eight other Circuit Courts in finding legal innocence to be a valid basis for motion to withdraw guilty plea. But in doing so, affirms denial of motion because there was no credible evidence presented of innocence. Assertions alone are insufficient.

In United States v. James, No. 18-2569 (June 27, 2019), the Court of Appeals, through an opinion by Judge Jordan, affirmed the denial of defendant's motion to withdraw his guilty plea. 

The defendant was charged with two drug counts.  Pursuant to a plea agreement he entered a guilty plea.  During the colloquy, it was discussed that he had a third grade education, but also that he could read and write.  Months after the plea hearing he filed a pro-se motion to dismiss counsel for ineffectiveness.  In it, he argued he pled guilty to a crime he did not commit because 1) he was afraid  the judge and jury would not believe he was innocent; 2) his lawyer told him the judge was corrupt; 3) his lawyer did not explain the plea agreement; and 4) he did not understand the plea agreement due to his education level.  In response to the motion, defense counsel withdrew.  New counsel filed a motion to withdraw guilty plea but added it should be granted because the defendant was entrapped.  The district court found the defendant failed to demonstrate factual innocence, that his assertion of innocence alone was insufficient.  The court also found that an entrapment defense was an argument of legal innocence, not factual innocence - that only claims of factual innocence should be considered in this context.  The motion was denied and the defendant was sentenced to prison.

Preliminarily, the Court of Appeals considered the merits of the appeal despite an appeal waiver in the plea agreement - the language of waiver prohibited appealing a sentence but did not address appealing a conviction.  On appeal, the defendant first argued a claim of legal innocence is sufficient to withdraw a guilty plea.  Second, the defendant argued that the district court abused its discretion in weighing the withdrawal factors - i.e. "(1) whether the defendant asserts his innocence; (2) the strength of the defendant’s reasons for withdrawing the plea; and (3) whether the government would be prejudiced by the withdrawal."

As for his first argument, the Court of Appeals agreed that legal innocence is a basis to withdraw a guilty plea.  In doing so, the Court joined eight other Circuit Courts who ruled similarly.  It found,     "[i]f a defendant is not legally culpable, it stands to reason that he should be able to withdraw his guilty plea before sentencing because he is exempt from any punishment for the alleged acts constituting the crime, regardless of whether he committed them."  The Court continued however, that the defendant's assertion of entrapment, without factual support, was insufficient - that the defendant had to "present a credible claim of legal innocence."  So while the Court of Appeals found the district court's finding legally incorrect, they also found it to be harmless. 

As for his second argument, the defendant gave three reasons why he should have been allowed to withdraw his guilty plea.  First, he felt threatened and under duress if he didn't take the plea.  Second, his plea was not entered knowingly.  Third, his counsel was ineffective.  The Court of Appeals addressed each argument individually and found either they were assertions without factual support or were contradicted by the transcript of his guilty plea hearing.  Again, the Court of Appeals found the denial of the motion to withdraw was therefore within the district court's discretion.

The panel was Smith, Jordan, and Rendell.

Wednesday, June 26, 2019

Officer's pre-Miranda comment to defendant that his girlfriend would also be charged criminally was not the functional equivalent of interrogation which would warrant suppression of defendant's inculpatory response.

In United States v. Tyrone Greene, (No.18-2923)(June 25, 2019) the Court of Appeals through an opinion by Judge Hardiman affirmed the denial of the defendant's motion to suppression of evidence.

Greene and his girlfriend driving a van which was stopped for operating without headlights on.  When stopped the driver, Greene's girlfriend, could not produce a valid driver's license, proof of insurance, nor vehicle registration.  While speaking to her the officer smelled unburnt marijuana.  Then Greene acted "suspiciously" - he stood up and sat down in the passenger seat as if he was going to exit the vehicle.  He also reached for his waistband.  The officer removed him from the vehicle and patted him down.  When he did so the officer immediately recognized a package of marijuana based on plain feel alone, with no manipulation.  Greene was then placed under arrest, the van was searched, and found bullets were found.  Greene, was then searched again because he walking "unusually."  A firearm was recovered from him. At the station, the officer remarked that Greene's girlfriend would be charged as well for traffic and drug violations.  Greene then said he would "take the hit" for the gun and bullets so his girlfriend could be spared.

Greene was indicted on 922(g)(1).  Before trial, he moved to suppress both the seizure of the gun and bullets as well as his inculpatory statement.  The opinion focused its analysis on the Miranda issue only.  In that respect, Greene argued the officer's comment about his girlfriend's criminal exposure was the functional equivalent of an interrogated done pre-Miranda to elicit his statement.  In effect the officer's statement was coercive and warranted suppression.  The Court of Appeals disagreed, finding the officer's remark was not the functional equivalent of an interrogation, that Greene's response to the comment was unforeseeable, and it was gratuitous.  The Court also noted no  evidence that Greene was upset or overwrought or that the circumstances created coercive influence on him.  The Court affirmed the district court's denial.

As for the second suppression argument related to the seizure of the gun and bullets, the Court quickly dismissed based on the plain feel doctrine.

The panel was Hardiman, Porter, and Cowen.

Tuesday, June 25, 2019

Mandatory Consecutive Sentence for Aggravated Identity Theft Does Not Foreclose Enhancement of Underlying Sentence for Use of Device-Making Equipment in Stealing IDs


In United States v. A.M., No. 18-1120 (June 20, 2019), the Court holds that defendants subject to a mandatory two-year prison sentence for aggravated identity theft may still face enhancement of their Sentencing Guidelines range on other counts based on conduct relating to the identity theft.

By means of skimming devices and “PIN-pad overlays,” appellant A.M. captured victims’ account information and PINs from ATMs and then used the information to make counterfeit debit cards that allowed him to buy goods and withdraw cash. Following his indictment, he pled guilty to one count of bank fraud, in violation of 18 U.S.C. § 1344, and one count of aggravated identity theft, in violation of 18 U.S.C. § 1028A. The latter statute mandates a two-year consecutive sentence for stealing a “means of identification of another person” during and in relation to a range of enumerated federal offenses, including bank fraud. Commentary to the applicable sentencing guideline directs that in light of the consecutive sentence, the range on the underlying offense should be calculated without application of “any specific offense characteristic for the transfer, possession, or use of a means of identification.”  U.S.S.G. § 2B1.6 cmt. n.2.

Citing the commentary, A.M. argued that his sentencing range had been miscalculated on the bank fraud count by application of a two-level enhancement for the use of device-making equipment to create the counterfeit debit cards. See U.S.S.G. § 2B1.1(b)(11)(A)(i). The Court disagrees, reasoning that “using device-making equipment is different from possessing, transferring, or using ‘a means of identification.’” While such “equipment can be used to copy a means of identification,” it is “not itself a means of identification. The Guidelines bar only enhancements for using the latter.” Nor does the Court find persuasive A.M.’s argument that application of the enhancement punishes him twice for the same conduct. “His aggravated-identity-theft sentence punishes his use of customers’ stolen PINs and account numbers; his bank-fraud-sentence enhancement punishes his using equipment to make fake debit cards with that stolen information.” Citing cases from four circuits, the Court states that all are in accord with its construction.

Separately, the Court rejects A.M.’s contention that the district court erred in refusing to depart below the two-year mandatory minimum provided by 18 U.S.C. §1028A. While A.M. asserted that the government breached a plea agreement in declining to move for a downward departure pursuant to 18 U.S.C. § 3553(e), the Court reads the plea agreement not to have obligated the government to do so. Nor did the government’s motion for a Guidelines departure pursuant to U.S.S.G. § 5K1.1 authorize a sentence below the statutory minimum.

Monday, May 20, 2019

Sixth Amendment Speedy Trial Right not Triggered by Inmate’s Placement in Administrative Segregation for Investigation of New Crime


In United States v. James Bailey-Snyder, No. 18-1601 (3d Cir., May 3, 2019), Defendant, an inmate at FCI Schuylkill, was under investigation for weapon possession at the prison. During a search, prison guards discovered a seven-inch shank on Defendant’s person. While the FBI investigated the matter, prison officials placed Defendant in the Special Housing Unit (“SHU”).  Defendant was indicted ten months later for one count of possession of a prohibited object in prison. After several requests for filing extensions, Defendant filed a motion to dismiss the indictment based on violation of his constitutional and statutory speedy trial rights. Specifically, Defendant argued that the ten-month period between his placement in the SHU and the filing of the indictment was an unreasonable pre-indictment delay. The district court denied Defendant’s motion, ruling that placement in the SHU is not an arrest or accusation that would trigger the Speedy Trial clock. The Third Circuit agreed. In a matter of first impression, the Third Circuit ruled that an individual’s speedy trial rights under both the Sixth Amendment and 18 U.S.C. § 3161 do not attach to the period prior to arrest. The court determined that placement in the SHU was not an arrest, but was instead an administrative segregation administered under the policies and procedures of the BOP. As a result, Defendant’s proper recourse was submit an administrative challenge to the BOP.

Defendant also accused the government’s attorney of improper vouching. During closing arguments, the prosecutor attempted to rebut defense counsel’s challenge to the credibility of the two prison guards who had searched Defendant. Specifically, the prosecutor stated that it was conjecture for defense counsel to claim that the prison guards would risk their livelihoods to frame Defendant. Defense counsel objected to the statement, arguing that the prosecutor was attempting to argue facts that were not in evidence. The trial court overruled defense counsel’s objection. Citing United States v. Weatherly, 525 F.3d 265 (3d Cir. 2008), the Third Circuit ruled that the prosecutor’s statement was not improper vouching, but was merely a commonsense conclusion which did not require explicit supporting evidence on the record. The Third Circuit also noted that even if the prosecutor’s statement was deemed improper vouching, it was nonetheless excusable because it was a reasonable response to defense counsel’s allegation of perjury.

The Third Circuit ultimately ruled that there was no cumulative error and affirmed Defendant’s conviction and sentence.

Hobbs Act Robbery is Crime of Violence under 18 U.S.C. § 924(c), but Not Crime of Violence under the Career-Offender Guideline U.S.S.G. § 4B1.2


In United States v. Raul Rodriguez, Nos. 18-1606 and 18-1664 (3d Cir., May 1, 2019), Defendant pled guilty one count each of Hobbs Act robbery and brandishing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. §§ 1951(a) and 924(c). The district court ruled that the robbery was a crime of violence under § 924(c), but it was not a crime of violence under the career-offender guideline, U.S.S.G. § 4B1.2. The Third Circuit affirmed the district court’s decision. Citing United States v. Robinson, 844 F.3d 137 (3d Cir. 2016), the court reiterated that, when a firearm is brandished during a Hobbs Act robbery, the robbery constitutes a crime of violence under the elements clause of 18 U.S.C. § 924(c)(3)(A). However, the court ruled that Hobbs Act robbery is not a crime of violence under the career-offender guideline. The Third Circuit initially concluded that Hobbs Act robbery did not qualify as a crime of violence under the elements clause of § 4B1.2(a)(1) because the statutory definition of the offense did not contain the requisite elements. The Third Circuit further determined that Hobbs Act robbery did not qualify as a crime of violence under the enumerated-offense clause of § 4B1.2(a)(2) because its statutory definition was broader than the two most closely-related enumerated offenses, namely robbery and extortion. Specifically, the court determined that the statutory definition of Hobbs Act robbery was broader than generic robbery and extortion as narrowly defined in the guidelines because the latter prohibit crimes involving force against persons, while Hobbs Act robbery prohibited crimes involving force against persons or property.

Note that this decision is unpublished, but its reasoning is persuasive and the briefing in the case may be consulted when litigating this issue before future panels of the Court of Appeals.



    Failure to group certain counts as required by the Sentencing Guidelines is plain error requiring resentencing even if the sentencing co...