Challenging the Definition of "Crime of Violence"
It is generally understood that federal law treats charges of attempt to commit a crime the same as charges of committing a crime, but a recent criminal case in the 4th Circuit Court of Appeals has set a possible precedent for treating these charges differently when it comes to so called “crimes of violence”.
In the case, titled United States v. Taylor, the court ruled that an attempted robbery case was not considered a “crime of violence” according to the respective crime of violence statute, 18 U.S.C. § 924(c)(3)(A). So what is a “crime of violence”, and why does this matter?
For us at Tarlton | Polk, this is one of many cases we aim to stay on top of in the ever-changing landscape of criminal defense law to achieve better results for our clients. Of course, we know there are a lot of intricacies in the law and jargon at place here, so we will explain it all further in this article.
What Happened in United States v. Taylor Case?
United States v. Taylor was an interested criminal case involving several crimes at play, but most importantly the conspiracy and attempt to commit a robbery. In 2003, the defendant, Justin Eugene Taylor, arranged a sale of marijuana to Martin Sylvester with an unnamed drug-dealer. What Sylvester did not know, was that Taylor was conspiring with the drug-dealer to rob him of his money.
After Taylor met with Sylvester, they travelled to Richmond, Virginia, where Taylor instructed Sylvester to meet the drug-dealer in a nearby alleyway, where Taylor expected Sylvester to be robbed. The plan escalated beyond Taylor’s expectations when his co-conspirator, the drug-dealer, shot and killed Sylvester in the attempted robbery.
The federal government charged Taylor with a total of 7 offenses in his indictment, but most relevant to this case were the following charges:
- Conspiracy to commit “Hobbs Act” robbery, in violation of 18 U.S.C. § 1951
- Attempted “Hobbs Act” robbery, in violation of 18 U.S.C. § 1951
- Use of a firearm in furtherance of a “crime of violence” in violation of 18 U.S.C. § 924(c).
Taylor ended up pleading guilty to the charge of conspiracy and use of a firearm in furtherance of a “crime of violence”, and the remaining charges were dismissed. The court then sentenced him to a combined sentence of 360 months in jail for both convictions.
Since then, Taylor made several attempts to appeal his sentence based on various new violent crime cases that resulting in decisions relevant to his case. His appeals had been denied until his most recent one, where on October 14, 2020, the 4th circuit judges ruled to vacate his previous firearm conviction and re-sentence him based on the reduced conviction. To understand why they came to this decision, we should first understand all the legal terms and concepts at play here.
(Re)Defining a "Crime of Violence"
The federal firearm charges under 18 U.S.C. § 924(c) can be a rather convoluted area of law which is what the court was able to challenge in this case. Under this law, a person who carried a firearm “during and in relation to any crime of violence” or who “possesses a firearm in furtherance of any such crime” may be convicted of both the underlying “crime of violence” and the additional crime of using a firearm in connection with a crime of violence.
A crime of violence, is defined as:
An offense that is a felony and:
- has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
- that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
Courts typically refer to the first part, A, as the “force clause”, as it in essence requires the crime to involve the use, attempted use, or threatened use of force.
The second part, B, is referred to as the “residual clause” , though it was invalidated by the Supreme Court as unconstitutionally vague in United States v. Davis in 2019. This meant that a conviction for 924(c) gun crime may be based on an attempted Hobbs Act robbery only if the robbery constitutes a “crime of violence” under the force clause alone.
The Categorical Approach to Challenge "Crime of Violence"
This previous ruling that necessitates the use of the force clause alone to define a “crime of violence” is what allowed for this decision to appeal in Taylor’s case. This is because for these types of appeals, the Supreme Court’s requires that courts use a “categorical” approach to determining conviction. A categorical approach is defined as when a court:
Focuses on the elements of the prior offense rather than the conduct underlying the conviction
Essentially, under a categorical approach the court does not look at the facts of the specific case, but only the elements of the offense they were convicted of. By virtue of only focusing on the elements of the offense, the court must ask if that underlying offense necessarily requires that it falls under the definition in question.
In this case, the court had to ask whether the elements under an attempted Hobbs Act robbery constituted “the use, attempted use, or threatened use of physical force” to be considered a crime of violence. Consideration of the facts that a gun was used in Taylor’s case and that a man was shot with it did not matter here, only how an attempted Hobbs Act robbery is defined and the requirements for conviction of it.
Understanding "Hobbs Act" Robbery
For a conviction of “Hobbs Act” robbery, the prosecution must prove two elements:
- The defendant had the culpable intent to commit Hobbs Act robbery; and
- The defendant took a substantial step towards the completion of Hobbs act robbery that strongly corroborates the intent to commit the offense.
For the first element, the Hobbs Act punishes a person who:
in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires to do so, 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.
Further, the act defines “robbery” 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.
As the basis of this definition does involve the use of, attempt or threat of violence, committing a Hobbs Act robbery would constitute a “crime of violence”. However, the court argued that attempted Hobbs Act robbery did not “categorically” qualify as a “crime of violence”, based on the second element that requires a “substantial step” towards completing the offense. For prosecution to obtain a conviction of attempted Hobbs Act robbery, the “substantial step” does not necessarily have to be violent. There have been cases where that “substantial step” had been nonviolent acts such as defendants:
- Discussing plans to commit robbery
- Surveying the property (e.g a bank) they planned to rob
- Assembling weapons and disguises
- Traveling to the area to commit robbery
All of the above conduct satisfies a conviction of attempted Hobbs Act robbery, but does not satisfy the definition of a “crime of violence” as they are, in essence, an attempt to threaten to use physical force, which is somewhat removed from the definition of “crime of violence”.
Appealing the Taylor Conviction
Interestingly, while Taylor was not convicted of the underlying crime his firearm charge, 924(c), was based on, which was an attempted Hobbs Act robbery, he still faced the conviction for firearm charges as they were predicated on the charges he faced for attempted robbery. However, based on the reasoning from the 4th circuit court using the categorical approach, the underlying crime does not necessitate violence. This is all in spite of the fact that Taylor’s case did involve violence, as the categorical approach requires not considering the facts of the specific case.
Taylor still remains convicted of conspiracy to commit Hobbs Act robbery, but the court made the decision to vacate his 924(c) conviction and place Taylor back in custody for a re-sentencing.
Going Forward – Why This Matters
This ruling was a departure from other district circuits, who still ruled that attempted Hobbs Act robbery was a “crime of violence”. The 4th circuit court noted that their sister courts were not applying the categorical approach to reach these conclusions, as they have been directed by the Supreme Court, but have been following rules of their own. In essence, the 4th circuit ruled that an attempt to commit a crime of violence does not need to involve the attempted use of physical force, as an attempt to threaten to use force does not constitute an attempt to use force.
Right now, Taylor had won his appeal case, but now he is in limbo waiting to see if the federal prosecutors will challenge the 4th circuit’s decision in the Supreme Court. If that happens, whatever the Supreme Court decides will have a huge impact on anybody charged with similar crimes.
Here at Tarlton | Polk, we will be watching this case closely to see where it goes and what it could mean for our clients. We believe it is our duty as defense attorneys to stay as up-to-date as possible on the cases that could change the shape of our law and the outcomes for the people we represent. We will be sure to provide you with updates as this case develops.