Opinion
Case No. CR18-49 RAJ
06-04-2019
UNITED STATES OF AMERICA, Plaintiff, v. BRADFORD MARSELAS JOHNSON and ERIC HENRY WOODBERRY, Defendants.
ORDER
I. INTRODUCTION
Defendant Eric Woodberry moves to strike and dismiss the allegation within Count 4 of the indictment charging a violation of 18 U.S.C. § 924(c) for aiding and abetting the use of a firearm in furtherance of a crime of violence based on a Hobbs Act robbery. Dkt. # 122. On June 3, 2019, Defendant Bradford Marselas Johnson orally joined Woodberry's motion. Dkt. # 148. The government opposes. Dkt. # 124. For the reasons below, the Court DENIES Defendant's motion.
II. DISCUSSION
Defendant contends that the underlying Hobbs Act robbery alleged in Count 1 categorically fails to qualify as a crime of violence within the meaning of 18 U.S.C. § 924(c)(3)(A). Specifically, Defendant claims that a Hobbs Act robbery can be accomplished by putting someone in fear of future injury to his person or property, which does not require the use, attempted use, or threatened use of "violent force." Dkt. # 122 at 5. In a separate argument, Defendant contends that the residual clause of § 924(c)(3)(B) is unconstitutionally vague under Johnson v. United States, 135 S. Ct. 2551 (2015). Dkt. # 122 at 7. However, the Court need not address this constitutional argument because, even if the residual clause is void, a Hobbs Act robbery satisfies the force clause under section 924(c) and is therefore a crime of violence.
In reaching this conclusion, the Court notes that the Ninth Circuit has previously stated that a Hobbs Act "[r]obbery indisputably qualifies as a crime of violence" under § 924(c). United States v. Mendez, 992 F.2d 1488, 1491 (9th Cir. 1993). The Court also looks to the Ninth Circuit's holdings in United States v. Selfa, 918 F.2d 749 (9th Cir. 1990) and United States v. Howard, 650 Fed.Appx. 466 (9th Cir. 2016). In Howard, the defendant argued that a Hobbs Act robbery is not a categorical match for section 924(c)'s force clause because the crime "may also be accomplished by putting someone in 'fear of injury' . . . ." Id. at 468 (quoting 18 U.S.C. § 1951(b)). In its analysis, the Ninth Circuit looked to its previous holding in Selfa, where it concluded that a federal bank robbery statute, which could be violated by 'force and violence, or by intimidation' qualified as a crime of violence under U.S.S.G. § 4B1.2. Howard, 650 Fed.Appx. at 468. The Ninth Circuit further noted that U.S.S.G. § 4B1.2 used the nearly identical definition of 'crime of violence' as § 924(c)," and held that, "[b]ecause bank robbery by 'intimidation'—which is defined as instilling fear of injury—qualifies as a crime of violence, Hobbs Act robbery by means of 'fear of injury' also qualifies as crime of violence." Id.
Although Howard is not binding precedent, numerous courts throughout this circuit have found its reasoning persuasive and concluded that Hobbs Act robbery is a crime of violence, even when accomplished by fear of injury. See, e.g., United States v. Chavez, No. 15-CR-00285-LHK, 2018 WL 339140 (N.D. Cal. 2018); United States v. Hayes, No. 3:13-CR-00007-RCJ-WGC, 2017 WL 58578, at *2 (D. Nev. Jan. 5, 2017); Gaines v. United States, 248 F. Supp. 3d 959, 965-69 (C.D. Cal. 2017). Other circuit courts across the country have taken the same approach. See, e.g., United States v. Robinson, 844 F.3d 137, 144 (3d Cir. 2016), cert. denied, 138 S. Ct. 215 (2017); United States v. Hill, 832 F.3d 135, 144 (2d Cir. 2016). This Court likewise finds Howard persuasive and therefore DENIES Defendant's Motion.
III. CONCLUSION
For the reasons stated above, the Court DENIES Defendant's motion.
DATED this 4th day of June, 2019.
/s/_________
The Honorable Richard A. Jones
United States District Judge