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United States v. Newton

United States District Court, D. Nevada

May 15, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MARK ANTHONY NEWTON, Defendant.

          ORDER DENYING IN PART AND GRANTING IN PART MOTION TO VACATE SENTENCE, (ECF NO. 61)

          ANDREW P. GORDON, UNITED STATES DISTRICT JUDGE

         Defendant Mark Newton moves to correct his sentence under 28 U.S.C. § 2255. He challenges three aspects of his sentence: (1) his enhancement under the Armed Career Criminal Act (“ACCA”), (2) his conviction for a crime of violence under 18 U.S.C. § 924(c) based on his commission of Hobbs Act robbery, and (3) his crime of violence enhancement under U.S.S.G. § 4B1.2. Newton contends that intervening Supreme Court caselaw, particularly Johnson v. United States, renders all of these convictions and enhancements unconstitutional.

         The government concedes that Newton's ACCA enhancement is unconstitutional, and I agree. But as to the other two, the Ninth Circuit has made clear that Hobbs Act robbery qualifies as a crime of violence under § 924(c), and it has been equally clear that Newton's relevant convictions qualify as crimes of violence under § 4B1.2. I therefore grant Newton's motion as to his ACCA enhancement, but I deny it as to his § 924(c) conviction and his § 4B1.2 sentencing enhancement.

         Discussion

         A. Newton's § 924(c) conviction predicated on Hobbs Act robbery

         Newton's conviction under section 924(c) requires that he committed a “crime of violence.” A crime of violence is defined, as is relevant here, as a felony that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”[1] Thus, one commits a crime of violence by either threatening, or actually using, physical force against a victim or his property. In the context of the ACCA, the Supreme Court has interpreted “physical force” to mean “violent force-that is, force capable of causing physical pain or injury to another person.”[2] And courts have commonly applied this interpretation to § 924(c)'s force clause.[3]

         The predicate conviction I used in sentencing Newton for the § 924(c) conviction was Hobbs Act robbery.[4] The Hobbs Act defines robbery with language similar to § 924(c), prohibiting “threatened” or actual “force”: “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.”[5] Newton contends that Hobbs Act robbery can be committed by merely instilling “fear” in a victim and that this does not equate to § 924(c)'s definition. He also contends that one can commit this crime with de minimis force, which is not enough to be “violent force.”

         But the Ninth Circuit has held as recently as last year that Hobbs Act robbery qualifies as a crime of violence.[6] In U.S. v. Howard, the court explained in an unpublished decision that there is no way to commit Hobbs Act robbery without putting the victim in fear of bodily harm-and that this sort of fear qualifies as actual or threatened physical force under § 924(c). District courts have repeatedly held that Hobbs Act robbery qualifies as a crime of violence under § 924(c) because, by “placing someone ‘in fear of injury' to his person or property, ” the defendant uses the sort of “physical force” that satisfies § 924(c).[7]

         As to whether one can commit Hobbs Act robbery with too little force to qualify as the sort of violent force contemplated by § 924(c), I agree with the weight of authority that finds this argument “unavailing.”[8] Even if there is some theoretical possibility that one could commit Hobbs Act robbery using de minimis force-and I am not convinced there is-Newton must demonstrate that there is “a realistic probability, not a theoretical possibility” that this is so.[9] “To show that realistic probability, an offender, of course, may show that the statute was so applied in his own case. But he must at least point to his own case or other cases in which the [ ] courts in fact did apply the statute in the . . . manner for which he argues.”[10]

         Newton has not demonstrated a reasonable likelihood that anyone was convicted for Hobbs Act robbery when using de minimis force. He does not offer a single case where that occurred. Instead, he relies on different crimes or cases about common law robbery, none of which proves that there is a realistic possibility anyone is being convicted for Hobbs Act robbery when using de minimis force. Newton thus has not shown that his § 924(c) conviction is infirm.

         B. Newton's enhancement under § 4B1.2 of the sentencing guidelines

         Under § 4B1.1(a), a defendant qualifies as a career offender if he has at least two prior convictions for a “crime of violence.” The Guidelines define a “crime of violence” as any offense that either “(1) has as an element the use, attempted use, or threatened use of physical force against the person of another” or “(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”

         The first clause is sometimes referred to as the “force” clause. The second clause, the “enumerated offense clause, ” lists specific crimes that will qualify if the crime of conviction is a categorical match for the elements of the generic listed offenses. The language in subsection (a)(2) refering to crimes that otherwise involve conduct presenting a serious risk of physical injury is known as the “residual” clause. Thus there are three potential clauses for a prior conviction to qualify under: (1) the force clause, (2) the enumerated offenses clause, and (3) the residual clause. Newton's sentence was enhanced, in part, based on his two convictions for Nevada robbery under Nevada Revised Statute § 200.380.[11] I must therefore determine whether those convictions qualify under one of these three clauses.

         As a preliminary note, the parties do not address whether Newton's state convictions qualify as crimes of violence under the residual clause. This may be because, at the time the parties filed their briefing, the Supreme Court was considering whether to strike down that clause as unconstitutional. But the Supreme Court recently clarified that the Guidelines' residual clause is indeed ...


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