What is a crime of violence and does it include attempted robbery under the federal Hobbs Act? In a 7-2
decision, the Supreme Court ruled on Tuesday that attempted Hobbs act robbery does not qualify as a crime of violence.
Delivering the majority opinion, Justice Neil Gorsuch wrote “simply put, no element of attempted Hobbs Act robbery requires proof that the defendant used, attempted to use, or threatened to use force.”
Last December, the Justices heard oral arguments in an appeal by Justin Taylor of Richmond, Va. While it is generally understood that attempting to commit a crime is treated the same as actually committing a crime under federal law, the 4th Circuit Court of Appeals thought differently, which landed this case before the Supreme Court late last year.
In 2003, Taylor was convicted of conspiracy to commit Hobbs Act robbery in addition to using a firearm in furtherance of a “crime of violence” and was sentenced to a total of 30 years in prison – 20 for the conspiracy and another 10 for the “crime of violence.”.
Federal firearm charges allow for an individual to be convicted of both the underlying “crime of violence” and the additional crime of “using a firearm in connection with a crime of violence” just for carrying a firearm
“during and in relation to any crime of violence” or “possessing a firearm in furtherance of any such crime.”
The U.S. Court of Appeals for the 4th Circuit determined that an attempted Hobbs Act robbery cannot qualify as a crime of violence. The 3rd, 7th, 9th, and 11th circuits have all held that attempted Hobbs Act robbery constitutes a crime of violence.
During oral argument at the Supreme Court, the Justice Department said the 4th Circuit ruling should be reversed, arguing that Taylor’s theory would dramatically expand liability for attempt crimes. “If reconnoitering a store is an attempted robbery today, then googling a fraud scheme is attempted wire fraud tomorrow. That is not the law,” DOJ said.
Taylor argued that the 4th Circuit correctly determined that Hobbs Act robbery does not encompass attempted threats and that the crimes he committed did not qualify as crimes of violence.
The justices posed a series of humorous hypotheticals, pushing the boundaries of what may qualify as attempted federal robbery. Justice Stephen G. Breyer asked whether possessing a wooden gun or a gun made of marshmallows would qualify as a crime. Chief Justice John Roberts asked what charges Woody Allen’s character in “Take the Money and Run” would face for handing the note “I have a gub” to the teller.
The Supreme Court illustrated yet another example in its opinion – “Adam” researching and planning to
rob a particular store but never actually delivering his bluff of a note and therefore never reaching the point of
threatening the use of force against anyone or anything. How then could Adam be convicted of the “crime of violence” when he did not use, attempt to use, or threaten to use physical force against anyone or anything?
Slapping enhancements on defendants has been commonplace, ensuring increased punishment in an attempt to reduce violent crime. The Taylor case was just one of many that fell in the purview of "Project Exile" in Richmond as an attempt to reduce the high homicide rate by taking a stance on gun crime, shifting the prosecution of illegal gun possession offenses from state to federal court.
During oral argument last December, Justice Brett Kavanaugh expressed concern over siding with the defense, “Congress obviously did this and imposed this because there’s a huge problem with violent crime committed with firearms.
During oral argument last December, Justice Kavanaugh expressed concern over siding with the defense, “Congress obviously did this and imposed this because there’s a huge problem with violent crime committed with firearms. . .” Justice Clarence Thomas, dissenting, referred to “Alice in Wonderland” in stating that this decision is an example of how we have strayed far “down the rabbit hole.”
Will this decision have a ripple effect in the rise of gun crime or will it merely signal a change in the possible enhanced sentence when a firearm is used? Only time will tell.
Justice Clarence Thomas, dissenting, referred to “Alice in Wonderland” in stating that this decision is an example of how the law has strayed far “down the rabbit hole.”
Nonetheless, Taylor's victory will cut a third of his 30-year term. And the new ruling will likely make prosecutors look more closely at bringing charges alleging crimes of violence.
Ashley Oddo is Director of the Academy for Justice at Arizona State University Sandra Day O’Connor College of Law
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