United States v. Hill

890 F.3d 51
Court of Appeals for the Second Circuit·Decided August 3, 2016·No. No. 14-3872-cr; August Term 2015·Published·Cited by 181 cases

Opinion

Debra Ann Livingston, Circuit Judge:

In 1997, Fredy Cuenca, a livery cab driver, was robbed, shot, and killed after picking up a fare in the middle of the day in Brooklyn. Almost 14 years later, Rhan Powell admitted he was one of the two *53passengers who robbed Cuenca. He also attested that Elvin Hill was the second passenger-the one who carried the weapon and pulled the trigger. The Government filed an indictment, charging Hill with violating 18 U.S.C. § 924(j)(1) for committing a firearm-related murder in the course of a "crime of violence," as defined in 18 U.S.C. § 924(c)(3). In this case, the crime of violence was Hobbs Act robbery, as defined in 18 U.S.C. § 1951(b)(1). Hill pleaded not guilty, proceeded to trial, and was convicted of the charged offense.

This case raises the question whether Hobbs Act robbery is a "crime of violence" within the meaning of 18 U.S.C. § 924(c)(3).1 Hill argues that Hobbs Act robbery does not qualify categorically as a crime of violence under the statute's "force clause," § 924(c)(3)(A), because it can be committed without physical force or the threatened deployment of the same.

We reject this argument and hold that Hobbs Act robbery is a crime of violence under 18 U.S.C. § 924(c)(3)(A).2 Accordingly, we affirm the district court's judgment of conviction.

BACKGROUND3

Fredy Cuenca was a livery cab driver in New York City. One afternoon, on June 29, 1997, he received a call from his dispatcher requesting a pickup in the Bushwick neighborhood of Brooklyn. Two young men, Elvin Hill and Rhan Powell, entered Cuenca's cab. According to Powell, as they were reaching the destination, Cuenca quoted the fare price, $10, which was higher than Hill and Powell had anticipated. Powell suggested to Hill that they rob Cuenca. When Cuenca stopped the cab, Hill yelled out, "[g]ive me the fucking money." Joint App'x 295. Cuenca handed some money he had in his hand to Powell. As Powell was exiting the vehicle, Cuenca began to plead for his life in broken English, pointing to a photograph of his children on the dashboard. Outside the vehicle, Powell then heard a loud sound and saw "red on the windshield." Id. at 296. Hill had shot Cuenca-once, in the head-with a previously concealed handgun. Hill and Powell fled the scene. Cuenca died.

Several witnesses heard the fatal gunshot and saw two young men exiting the cab and fleeing the scene. One witness identified Hill as one of the assailants during a lineup conducted about two months after the crime.4 But Hill was not charged with the crime at that time. Rather, the indictment came nearly 15 years later.

*54On April 26, 2011, Powell testified before a grand jury in the Eastern District of New York and admitted that he was one of the two passengers involved in the 1997 robbery. He testified that Hill was the one who had killed Cuenca. On March 22, 2012, another federal grand jury, relying in part on Powell's 2011 testimony, returned an indictment against Hill. Therein, Hill was charged with violating 18 U.S.C. § 924(j)(1), for committing a firearms-related murder in the course of a "crime of violence," as defined in 18 U.S.C. § 924(c)(3). The alleged predicate crime of violence was Hobbs Act robbery, as defined in 18 U.S.C. § 1951(b)(1).

Hill pleaded not guilty and proceeded to trial in the United States District Court for the Eastern District of New York (Matsumoto, J. ). On January 24, 2014, the jury returned a guilty verdict. The district court sentenced Hill to 43 years' imprisonment and entered a judgment of conviction dated October 3, 2014. This appeal followed.

DISCUSSION

This opinion addresses one of Hill's claims on appeal: whether Hobbs Act robbery is a "crime of violence" within the meaning of 18 U.S.C. § 924(c)(3). Hill argues that Hobbs Act robbery does not qualify as a crime of violence because it fails to categorically constitute a crime of violence under the statute's "force clause," § 924(c)(3)(A). We reject this contention.

I

We begin with the interlocking statutory provisions involved in this appeal. Hill was indicted and convicted under 18 U.S.C. § 924(j)(1). This provision specifies as follows:

A person who, in the course of a violation of subsection (c), causes the death of a person through the use of a firearm, shall[,] ... if the killing is a murder (as defined in section 1111), be punished by death or by imprisonment for any term of years or for life ....

Section 924(c)(1)(A) in turn explains that "any person who, during and in relation to any crime of violence ..., uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm" violates subsection (c). Critically, subsection (c) defines the term "crime of violence" as "an offense that is a felony" and

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United States v. Hill, 890 F.3d 51 (2d Cir. 2016).

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