United States v. Marlon Eason

953 F.3d 1184

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 24, 2020
• Docket: 16-15413
• Status: Published

Opinion

Case: 16-15413 Date Filed: 03/24/2020 Page: 1 of 21

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 16-15413 ________________________

D.C. Docket No. 0:15-cr-60330-WPD-2

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MARLON EASON,

Defendant - Appellant.

________________________

No. 16-17796 ________________________

D.C. Docket No. 0:16-cr-60139-BB-1

Plaintiff - Appellee, Case: 16-15413 Date Filed: 03/24/2020 Page: 2 of 21

CARLTON STYLES,

No. 18-12848 ________________________

D.C. Docket No. 1:17-cr-20826-KMW-1

JEFFREY LAMOT LAWSON,

Appeals from the United States District Court for the Southern District of Florida ________________________

(March 24, 2020)

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Before JORDAN, JILL PRYOR and WALKER, ∗ Circuit Judges.

JILL PRYOR, Circuit Judge:

These consolidated direct criminal appeals each present the same issue:

whether a conviction for Hobbs Act robbery qualifies as a “crime of violence”

under the Sentencing Guidelines, U.S.S.G. § 4B1.2(a). After careful review, and

with the benefit of oral argument, we conclude that the answer is no. We therefore

vacate each defendant’s sentence and remand for further proceedings consistent

with this opinion.

I. BACKGROUND

The advisory Sentencing Guidelines contain a sentencing enhancement for a

defendant who qualifies as a “career offender.” U.S.S.G. § 4B1.1(a). A defendant

is a career offender if he meets three criteria: (1) he is at least 18 at the time of the

offense of conviction; (2) the “offense of conviction is a felony that is either a

crime of violence or a controlled substance offense”; and (3) “the defendant has at

least two prior felony convictions of either a crime of violence or a controlled

substance offense.” Id. The Guidelines define “crime of violence” to mean

“any offense under federal or state law, punishable by imprisonment for a term

exceeding one year,” that either (1) “has an element the use, attempted use, or

∗Honorable John Walker, Jr., United States Circuit Judge for the Second Circuit, sitting by designation. 3 Case: 16-15413 Date Filed: 03/24/2020 Page: 4 of 21

threatened use of physical force against the person of another”—a definition

known as the “elements clause”1—or (2) is one of a number of listed offenses in

the “enumerated offenses clause,” which includes robbery and extortion. Id.

§ 4B1.2(a). In this case, we examine whether a conviction for Hobbs Act robbery

in violation of 18 U.S.C. § 1951(a) satisfies the Guidelines’ “crime of violence”

definition under either clause.

A person commits Hobbs Act robbery when he:

obstructs, delays, or affects commerce or movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section.

18 U.S.C. § 1951(a). “Robbery” under the Hobbs Act is defined as:

the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.

Id. § 1951(b)(1).

Marlon Eason pled guilty to one count of Hobbs Act robbery. Eason had

prior convictions, all in Florida, for strong arm robbery, attempted strong arm

robbery, and resisting an officer with violence. A probation officer classified

1 See United States v. Dixon, 874 F.3d 678, 680 (11th Cir. 2017).

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Eason as a career offender based in part on his Hobbs Act robbery conviction.

Eason objected, arguing that his Hobbs Act robbery conviction was not a crime of

violence; the district court overruled the objection and sentenced him as a career

offender.

The other two defendants’ stories are similar. Carlton Styles also pled guilty

to one count of Hobbs Act robbery. Based on his previous convictions in Florida

for robbery, Styles was classified as a career offender. Although Styles objected to

the use of his Hobbs Act robbery conviction as a basis for a career offender

enhancement, the district court overruled his objection and sentenced him as a

career offender.

A jury found Jeffrey Lawson guilty of, among other offenses, Hobbs Act

robbery. Based in part on this conviction, a probation officer classified Lawson as

a career offender. Lawson objected to the categorization of his Hobbs Act robbery

conviction as a crime of violence under the career offender guideline, but the

district court overruled his objection and sentenced him as a career offender.

Eason, Styles, and Lawson each appeal their sentences. This Court

consolidated their cases for oral argument.

II. DISCUSSION

On appeal the defendants argue that Hobbs Act robbery does not qualify as a

crime of violence under U.S.S.G. § 4B1.2(a). Specifically, they argue that because

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the offense can be committed by a threat to person or property, the statute is too

broad to qualify as a crime of violence either under the elements clause or as an

enumerated robbery or extortion offense. 2 The defendants emphasize that every

circuit to have squarely addressed this issue has agreed that Hobbs Act robbery is

not a crime of violence under § 4B1.2(a). We agree with the defendants and our

sister circuits.3

By now our analytical framework for deciding whether an offense qualifies

as a crime of violence is familiar. We apply a categorical approach to answer this

question, looking to the statutory definition of the offense rather than at the

2 The Hobbs Act also includes extortion, “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” 18 U.S.C. § 1951(b)(2). Hobbs Act robbery and Hobbs Act extortion are separate crimes. See United States v. St. Hubert, 909 F.3d 335, 348 (11th Cir. 2018), abrogated on other grounds by United States v. Davis, 139 S. Ct. 2319 (2019). In this opinion we address whether Hobbs Act robbery satisfies the Guidelines’ definition of extortion in the enumerated offenses clause; we do not address Hobbs Act extortion. 3 We review de novo whether a prior conviction qualifies as a crime of violence. United States v. Harris, 586 F.3d 1283, 1284 (11th Cir. 2009). In addition to cases construing U.S.S.G. § 4B1.2(a), we look to cases analyzing the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2). See United States v. Romo-Villalobos, 674 F.3d 1246, 1248 (11th Cir. 2012). ACCA, which imposes enhanced punishments based on a defendant’s prior “violent felony” convictions, see 18 U.S.C. § 924(e)(2), contains an elements clause definition that is identical to the elements clause of U.S.S.G. § 4B1.2(a), as well as a similar enumerated offenses clause. ACCA cases that apply the categorical approach to particular predicate offenses are “instructive” in career offender cases. Romo-Villalobos, 674 F.3d at 1248. In addition to their challenges based on their convictions for Hobbs Act robbery, Eason and Styles argue that their Florida robbery convictions do not qualify as crimes of violence. Eason further argues that his conviction for resisting an officer with violence does not qualify. We have previously rejected such challenges. See Stokeling v. United States, 139 S. Ct. 544, 554-55 (2019) (holding that Florida robbery satisfies ACCA’s elements clause); United States v. Hill, 799 F.3d 1318, 1322-23 (11th Cir. 2015) (holding that resisting an officer with violence, in violation of Florida law, satisfies ACCA’s elements clause).

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particular facts underlying the defendant’s conviction. See Taylor v. United States,

495 U.S. 575, 600 (1990); United States v. Davis, 875 F.3d 592, 597 (11th Cir.

2017). Applying the framework to this case, we compare the scope of the conduct

covered by the elements of Hobbs Act robbery with the definitions of “crime of

violence” in U.S.S.G. § 4B1.2(a). “[I]f the statute sweeps more broadly” than the

§ 4B1.2(a) definition, then any Hobbs Act robbery conviction “cannot count” as a

crime of violence. Descamps v. United States, 570 U.S. 254, 261 (2013).

“Because we examine what [a Hobbs Act robbery] conviction necessarily

involved, not the facts underlying [each] case, we must presume that the

[defendants’] convictions rested upon nothing more than the least of the acts

criminalized, and then determine whether even those acts are encompassed by” the

crime of violence definition. Moncrieffe v. Holder, 569 U.S. 184, 190-91 (2013)

(alterations adopted) (internal quotation marks omitted).

The government defends the defendants’ career offender sentences on two

grounds. First, the government argues that Hobbs Act robbery satisfies the

elements clause definition of crime of violence. Second, the government contends

that Hobbs Act robbery qualifies as the enumerated offenses of robbery and

extortion. See United States v. O’Connor, 874 F.3d 1147, 1150 (10th Cir. 2017)

(“Although Mr. O’Connor’s underlying conviction was for Hobbs Act robbery, we

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nevertheless must determine whether the conviction could fall within any of the

enumerated offenses.”). We address these arguments in turn.

1. The Elements Clause

The government first defends the defendants’ career offender enhancements

on the ground that Hobbs Act robbery satisfies § 4B1.2(a)’s elements clause. We

are unpersuaded.

To apply the categorical approach to the elements clause, we consider

whether the Hobbs Act robbery statute criminalizes only conduct that “has as an

element the use, attempted use, or threatened use of physical force against the

person of another.” U.S.S.G. § 4B1.2(a)(1). By its terms, the Hobbs Act robbery

statute—which can be violated with threats of force to “person or property,” 18

U.S.C. § 1951(b)(1) (emphasis added), is broader than the Guidelines’ elements

clause definition. Because a person can commit Hobbs Act robbery without using,

attempting to use, or threatening to use physical force “against the person of

another,” Hobbs Act robbery does not satisfy the elements clause. In reaching this

conclusion, we join the only two circuit courts that have squarely considered the

issue. See United States v. Camp, 903 F.3d 594, 600-04 (6th Cir. 2018), cert.

denied, 139 S. Ct. 845 (2019); O’Connor, 874 F.3d at 1153-58. 4

4 The Ninth Circuit, although construing a state statute that was worded identically to the Hobbs Act robbery statute in all relevant respects, applied the same analysis and reached the

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The government nonetheless argues that these circuits ruled incorrectly. The

government makes three primary arguments, but none holds water.

First, the government argues that because Hobbs Act robbery requires that

property be taken “from the person or in the presence of another, against his will,”

18 U.S.C. § 1951(b)(1), this “proximity to the victim . . . bonds the offense as an

inherently violent act against a person, not merely to property.” Lawson

Appellee’s Br. at 21; see United States v. Tellez-Martinez, 517 F.3d 813, 815 (5th

Cir. 2008) (following this logic to conclude that robbery under California Penal

same result. United States v. Edling, 895 F.3d 1153, 1157-58 (9th Cir. 2018) (Nevada robbery statute). The government argues that the Eighth Circuit ruled the opposite way on an indistinguishable statute, 18 U.S.C. § 3559(c)(2)(F)(ii). See United States v. House, 825 F.3d 381 (8th Cir. 2016). That statute is materially different from U.S.S.G. § 4B1.2(a)(1), however, and House is not on point. Section 3559(c) provides for a mandatory term of life imprisonment when a defendant convicted of a serious violent felony has previously been convicted of at least two “serious violent felonies” or of at least one serious violent felony and one serious drug offense. 18 U.S.C. § 3559(c)(1). The statute defines “serious violent felony,” as relevant to House and this appeal, as “any offense punishable by a maximum term of imprisonment of 10 years or more that has as an element the use, attempted use, or threatened use of physical force against the person of another or that, by its nature, involves a substantial risk that physical force against the person of another may be used in the course of committing the offense.” Id. § 3559(c)(2)(F)(ii) (emphasis added). Although this definition includes an elements clause identical to the one in U.S.S.G. § 4B1.2(a)(1), it also includes a catchall (or what we call “residual”) clause. In House, the Eighth Circuit held that Hobbs Act robbery “was a ‘serious violent felony’ under 18 U.S.C. § 3559(c)(2)(F)(ii),” without specifying under which clause the crime qualified. House, 825 F.3d at 386-87. House was based in part on a previous decision, United States v. Farmer, 73 F.3d 836 (8th Cir. 1996), which did not hold that Hobbs Act robbery satisfied the elements clause of § 3559(c)(2)(F)(ii) alone. Rather, Farmer relied on both the elements and residual clauses to conclude that Hobbs Act robbery satisfied subparagraph (ii). Farmer, 73 F.3d at 842. Even if Farmer and House could be construed as supporting the government’s argument, we are persuaded by the better-reasoned analyses of the circuits to have addressed the precise question we address today.

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Code § 211 is a crime of violence under the Guidelines).5 The problem with the

government’s reading is that it excises the words “or property” from the statute,

“violat[ing] the well-established rule of statutory construction that we must give

effect to every word of a statute when possible.” Accardo v. U.S. Att’y Gen., 634

F.3d 1333, 1337 (11th Cir. 2011) (citing Duncan v. Walker, 533 U.S. 167, 174

(2001)).

The entirety of the Hobbs Act robbery definition makes clear that statute

does not require proximity between the person from whom the taking occurs and

the threat to property:

[Robbery is] the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.

18 U.S.C. § 1951(b)(1) (emphasis added). In addition to the circumstances

that rely on proximity between the victim and the threat of force, the statute

criminalizes “the unlawful taking or obtaining of personal property from the person

or in the presence of another . . . by means of actual or threatened force . . . to . . .

the . . . property of a relative or member of his family,” with no requirement that

5 The Ninth Circuit disagreed with Tellez-Martinez, holding that robbery under California Penal Code § 211 “is not a crime of violence” under the Guidelines. United States v. Bankston, 901 F.3d 1100, 1102 (9th Cir. 2018).

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the relative or family member be present at the time of the robbery. Id. Indeed,

the next clause—“or of anyone in [the victim’s] company at the time of the taking

or obtaining” covers an alternative factual scenario in which another person’s

property is threatened in proximity to the victim. Id. We therefore reject the

government’s reading of the statute.

Second, the government argues that the defendants must, but have failed to,

cite a plausible, real-world example of a Hobbs Act robbery that could be

committed without a threat to a person, with only a threat to property. See United

States v. Vail-Bailon, 868 F.3d 1293, 1306 (11th Cir. 2017) (en banc) (“[T]he need

to focus on the least culpable conduct criminalized by a statute is not an invitation

to apply legal imagination to the statute.” (internal quotations omitted)). The

government seizes on language from this Court’s decision in United States v. St.

Hubert, 909 F.3d 335, 350 (11th Cir. 2018), to support this argument. There, the

Court held that Hobbs Act robbery satisfies the elements clause in 18 U.S.C.

§ 924(c). St. Hubert, 909 F.3d at 350. Section 924(c)’s elements clause is broader

than U.S.S.G. § 4B1.2(a)(1) because it reaches the use, attempted use, or

threatened use of force against property. Compare 18 U.S.C. § 924(c), with

U.S.S.G. § 4B1.2(a)(1). “There is nothing incongruous about holding that Hobbs

Act robbery is a crime of violence for purposes of . . . § 924(c)(3)(A), which

includes force against a person or property, but not for purposes of U.S.S.G.

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§ 4B1.2(a)(1), which is limited to force against a person.” O’Connor, 874 F.3d at

1158.

St. Hubert does not support the government’s argument that the defendants

must “point to a case.” Either the text of a statute plainly reaches conduct outside a

generic definition, or it does not. In the latter circumstance we require a defendant

to “point to his own case or other cases” in which a statute has been applied in the

manner for which he argues, but there is no such requirement in the former

circumstance. Bourtzakis v. U.S. Att’y Gen., 940 F.3d 616, 620 (11th Cir. 2019)

(describing instances “when ‘the statutory language itself . . . creates the realistic

probability that a state would apply the statute’” in the manner for which the

defendant argues as “exception[s] to th[e] rule” that a defendant must point to a

case in which the statute applied in that manner (quoting Ramos v. U.S. Att’y Gen.,

709 F.3d 1066, 1071-72 (11th Cir. 2013)).

In St. Hubert we required the defendant to point to a case in which a court

applied the statute in the way he advocated—to robbery with fear of injury without

any threat of force—because the statutory language itself did not create the

realistic probability that fear of injury could exist without a threat of force. St.

Hubert, 909 F.3d at 350. Indeed, in St. Hubert we acknowledged that Hobbs Act

robbery could be committed “by putting the victim in fear of injury . . . to his . . .

property” by “threatening to use physical force capable of causing such injury,” id.

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(emphasis added), meaning injury to property. Given the plain text of the Hobbs

Act robbery statute, the defendants here have met their burden to prove the

statute’s overbreadth without identifying real-world examples. “Hobbs Act

robbery reaches conduct directed at ‘property’ because the statute specifically says

so. We cannot ignore the statutory text and construct a narrower statute than the

plain language supports.” O’Connor, 874 F.3d at 1154.

Third, the government argues that the Supreme Court’s recent decision in

Stokeling v. United States, 139 S. Ct. 544 (2019), demonstrates that the defendants’

argument and the other circuits’ holdings are wrong. Specifically, the government

argues that Stokeling’s “central rationale” was that “common-law robbery offenses

. . . justify enhancement” under the elements clause, and Hobbs Act robbery is a

federal codification of common law robbery. Lawson Appellee’s Br. at 27-28;

Styles Appellee’s Supp. Br. at 2. We disagree that Stokeling was this expansive.

In Stokeling, the Supreme Court considered whether robbery under Florida

law qualified as a violent felony under ACCA. 139 S. Ct. at 550. ACCA contains

an elements clause that is identical to the one in U.S.S.G. § 4B1.2(a)(1). See 18

U.S.C. § 924(e)(2)(b)(i); see supra note 3. Robbery under Florida law requires

force against a person, but that force can be minimal so long as it is necessary to

overcome a victim’s resistance. See Stokeling, 139 S. Ct. at 549 (citing Fla. Stat.

§ 812.13(1); Robinson v. State, 692 So. 2d 883, 886 (Fla. 1997)). The defendant in

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Stokeling argued that the force Florida law required was too minimal to satisfy the

elements clause. So the Supreme Court was tasked with deciding “whether the

‘force’ required to commit robbery under Florida law qualifies as ‘physical force’

for purpose of [ACCA’s] elements clause.” Id. at 550. The Court answered yes.

Id. at 550-55. The Court explained that at common law an unlawful taking became

a robbery if violence was involved. Id. at 550. “Violence” at common law “was

committed if sufficient force was exerted to overcome the resistance encountered.”

Id. (alteration adopted) (internal quotation marks omitted). This degree of force

was the same as what Florida law required; therefore, the Florida statute qualified

as a violent felony under ACCA. Id. at 554-55.

Stokeling surely stands for the proposition that robbery offenses that require

the same degree of force as common law robbery satisfy the “physical force”

degree-of-force requirement of ACCA’s (or the Guidelines’) elements clause. But

it does not stand for the broader proposition that any statute encompassing

common law robbery necessarily satisfies the elements clause. Stokeling rested on

the foundation that the Florida robbery statute, like most state robbery statutes,

requires the use of force against a person. See id. at 552-53. But the Hobbs Act

robbery statute, by its express terms, is broader. It includes not only the use of

force against a person, but also the use of force against property. Thus, Stokeling

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does not speak to the issue we address today. Rather, the text of the Hobbs Act

robbery statute controls.

By its terms, the Hobbs Act robbery statute may be violated by using,

attempting to use, or threatening to use force against a person’s property, even

when that property is not physically proximate to the robbery victim. It therefore

cannot satisfy U.S.S.G. § 4B1.2(a)’s elements clause, which requires that force be

directed at a person.

2. Enumerated Robbery and Extortion

Second, and alternatively, the government argues that the defendants’ Hobbs

Act robbery convictions qualify as crimes of violence because the Hobbs Act

robbery statute is coextensive with enumerated robbery and/or extortion. We

disagree.

Applying the categorical approach to enumerated offenses, we compare the

elements of Hobbs Act robbery with the elements of “robbery” and “extortion” in

the Guidelines. “[W]e disregard the label” on the crime “and look to whether the

conduct necessarily proven as a prerequisite” for the defendant’s conviction under

the statute is “a natural equivalent to the offense as envisioned by the Guidelines’

drafters.” United States v. Lockley, 632 F.3d 1238, 1242 (11th Cir. 2011). If the

least of the acts the statute criminalizes satisfies the generic definition of the

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offense, then the statute qualifies as the enumerated offense; if not, then the statute

does not qualify. Id.

The Guidelines define “extortion” as “obtaining something of value from

another by the wrongful use of (A) force, (B) fear of physical injury, or (C) threat

of physical injury.” U.S.S.G. § 4B1.2 cmt. n.1. The Guidelines nowhere define

robbery. “Where . . . the Guidelines specifically designate a certain offense as a

‘crime of violence,’” but do not define the offense, “we compare the elements of

the crime of conviction to the generic form of the offense as defined by the States,

learned treatises, and the Model Penal Code.” Lockley, 632 F.3d at 1242. We

have defined generic robbery as “the taking of property from another person or

from the immediate presence of another person by force or intimidation.” Id. at

1244 (emphasis omitted) (internal quotation marks omitted). This generic form

“involve[s] immediate danger to the person.” Id. at 1243 (alteration adopted)

(internal quotation marks omitted).

Both circuits that have addressed this issue—the Sixth and the Tenth—have

held that Hobbs Act robbery does not satisfy either enumerated offense or some

combination of both offenses. See Camp, 903 F.3d at 600-04; O’Connor, 874 F.3d

at 1153-58. 6 We agree with them. Hobbs Act robbery is broader than the generic

6 The Third Circuit has reached the same conclusion, albeit in an unpublished, non- binding opinion. See United States v. Rodriguez, 770 F. App’x 18, 21-22 (3d Cir. 2019)

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definition of robbery because, as we discussed above, it can be violated with

threats of force to property. “Hobbs Act robbery reaches conduct directed at

‘property’ because the statute specifically says so. We cannot ignore the statutory

text and construct a narrower statute than the plain language supports.” O’Connor,

874 F.3d at 1154. And “threats to property alone . . . do not necessarily create a

danger to the person.” Camp, 903 F.3d at 602 (citing O’Connor, 874 F.3d at

1155). Thus, Hobbs Act robbery is not a categorical match for the enumerated

offense of robbery.

For the same reasons, we reject the government’s argument that despite the

inclusion of property in the Hobbs Act robbery statute, the statute criminalizes

“substantially” the same conduct as generic robbery. Lawson Appellee’s Br. at 34.

The government’s reading of the statute would render the word “property”

superfluous or insignificant. We cannot accept this reading.

Our conclusion that the least of the acts the Hobbs Act robbery statute

criminalizes falls outside the scope of enumerated robbery “does not end our

analysis; we must next determine whether Hobbs Act robbery is a categorical

match with the enumerated offense of extortion.” Camp, 903 F.3d at 602. Indeed,

the government argues that any portion of the Hobbs Act statute that enumerated

(unpublished). And the Ninth Circuit has agreed, but in the context of two state statutes that are identical in all respects relevant to this appeal to Hobbs Act robbery. See Edling, 895 F.3d at 1156-58 (Nevada robbery statute); Bankston, 901 F.3d at 1102-04 (California robbery statute).

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robbery does not capture is covered by enumerated extortion. The Guidelines’

definition of extortion— “obtaining something of value from another by the

wrongful use of (A) force, (B) fear of physical injury, or (C) threat of physical

injury”, U.S.S.G. § 4B1.2 cmt. n.1—was intended to be narrow:

Consistent with the [Sentencing] Commission’s goal of focusing the career offender and related enhancements on the most dangerous offenders, the amendment narrows the generic definition of extortion by limiting the offense to those having an element of force or an element of fear or threats of “physical injury,” as opposed to non- violent threats such as injury to reputation.

See U.S.S.G. Supp. to App. C, amend. 798, at 131 (Nov. 1, 2016). Yet “while the

amendment was clearly intended to narrow the generic definition [of extortion] by

excluding reputational threats, it is less obvious whether force against or threats to

property are still included.” Camp, 903 F.3d at 603.

We agree with the Sixth Circuit in Camp that “the most natural reading of

the text of the definition, particularly its reference to ‘physical injury,’ is that it

requires that the wrongful use of force, fear, or threats be directed against the

person of another, not property.” Id. (internal quotation marks omitted); see

United States v. Edling, 895 F.3d 1153, 1157-58 (9th Cir. 2018). The ordinary

meaning of the term “physical injury” “typically means ‘bodily injury,’ which in

turn is defined as ‘[p]hysical damage to a person’s body.’” Camp, 903 F.3d at 603

(quoting Injury, Black’s Law Dictionary (10th ed. 2014)). Moreover, the

Guidelines use “physical injury” to indicate injury to person, and other terms, like 18 Case: 16-15413 Date Filed: 03/24/2020 Page: 19 of 21

“damage” or “destruction,” to refer to injury to property. See, e.g., U.S.S.G.

§ 2C1.1(c)(3) (providing a sentence enhancement for certain bribery offenses if the

offense involved “a threat of physical injury or property destruction”). 7

We thus are convinced that the Guidelines’ definition of extortion excludes

fear or threats of harm to property and that, because Hobbs Act robbery can be

committed by a threat to property alone, it does not satisfy that definition. Having

also concluded that Hobbs Act robbery is not generic robbery—and therefore not

enumerated robbery—we hold that Hobbs Act robbery does not qualify as an

enumerated crime of violence.

* * *

“As a concluding point,” the government notes that the Commission has

proposed amending the “crime of violence” definition to include Hobbs Act

robbery. Lawson Appellee’s Br. at 47. The government argues that proposed

amendment reflects that the career offender guideline was designed to punish

harshly repeat violent offenders like those who commit robbery and that the United

States Sentencing Commission has long viewed Hobbs Act robbery as a crime of

violence. Thus, the government says, the proposed amendment should “lessen[]

7 The Guidelines also often use “bodily injury” to refer to an injury to a person, see, e.g., U.S.S.G. § 1B1.1, cmt. 1(B) (defining “bodily injury,” a term “frequently” used in the Guidelines); id. § 2B3.1(b)(3)(A) (providing a sentence enhancement when a robbery victim sustains “bodily injury”), but that fact only further supports our reading given that Black’s Law Dictionary equates “physical injury” with “bodily injury.” 19 Case: 16-15413 Date Filed: 03/24/2020 Page: 20 of 21

any potential hesitance in opening a ‘circuit split.’” Id. Granting the government

everything it says about the need for the amendment, we nevertheless must stick to

the plain text of the Hobbs Act robbery statute and the Guidelines.

We readily acknowledge that the career offender guideline was designed to

punish harshly repeat offenders and that Hobbs Act robbery historically has fallen

within the “crime of violence” definition. But we must bear in mind that until the

2016 amendments to the Guidelines, “crime of violence” was defined in three

ways—the elements clause, the enumerated offenses, and a so-called “residual

clause,” capturing any offense that “otherwise involves conduct that presents a

serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2)

(amended 2016). The residual clause easily encompassed offenses like Hobbs Act

robbery. But since the residual clause was removed from the Guidelines in 2016,

the “crime of violence” definition no longer captures Hobbs Act robbery. See 83

Fed. Reg. 65400, at *65400, 65411-12 (Dec. 20, 2018) (discussing the “concern

that . . . Hobbs Act robbery . . . no longer constitute[s] a ‘crime of violence’ under

§ 4B1.2, as amended in 2016 . . . .”).

The Commission can change the Guidelines to recapture Hobbs Act robbery.

In fact, it appears to be in the process of doing so. See id. (proposing amendment

to career offender guideline to include Hobbs Act robbery by name or,

alternatively, to precisely “mirror the robbery definition at 18 U.S.C.

20 Case: 16-15413 Date Filed: 03/24/2020 Page: 21 of 21

§ 1951(b)(1)”). Until then, we must read the statute as it is written and interpret

the Guidelines as they currently exist. We decline the government’s invitation to

create a circuit split merely to anticipate a change that the Commission, fully

capable of doing so, has not yet made.

III. CONCLUSION

Hobbs Act robbery does not qualify as a crime of violence under the current

version of U.S.S.G. § 4B1.2(a). A conviction for Hobbs Act robbery therefore

cannot serve as a predicate for a career offender sentencing enhancement. Since

each of the defendants’ sentences was driven by his career offender status,8 we

vacate the defendants’ sentences and remand for further proceedings consistent

VACATED AND REMANDED.

8 The government argues that any error in Lawson’s sentence was harmless because the district court varied downward from the guidelines range that resulted from imposition of the career offender enhancement. But the district court never “state[d] on the record” that “the enhancement made no difference to the sentence it imposed.” United States v. Keene, 470 F.3d 1347, 1348-49 (11th Cir. 2006). Even so, the government argues that the district court’s statement that a guidelines-range sentence was inappropriate under the circumstances suffices to satisfy Keene. We cannot agree. The district court did not “clearly state[] that [it] would impose the same sentence” regardless of Lawson’s status as a career offender, so Keene’s harmless-error analysis does not apply. United States v. Barner, 572 F.3d 1239, 1248 (11th Cir. 2009) (citing Keene, 470 F.3d at 1349). We note that nothing in our opinion prevents the district court from imposing the same sentence on remand. 21