United States v. Joseph Monroe ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-4384
_____________
UNITED STATES OF AMERICA
v.
JOSEPH V. MONROE,
Appellant
____________
Appeal from the United States District Court for
the Western District of Pennsylvania
(W.D. Pa. No. 2-15-cr-00074-001)
U.S. District Judge: Honorable Donetta W. Ambrose
_____________
No. 19-1494
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UNITED STATES OF AMERICA
v.
DAVID COPES, a/k/a David Henderson-Copes,
Appellant
____________
Appeal from the United States District Court for
the Eastern District of Pennsylvania
(E.D. Pa. No. 2-18-cr-00319-001)
U.S. District Judge: Honorable Timothy J. Savage
___
Submitted Under Third Circuit L.A.R. 34.1(a)
October 23, 2019
______________
Before: McKEE, AMBRO and ROTH, Circuit Judges
(Opinion filed: January 6, 2021)
_______________________
OPINION *
_______________________
McKEE, Circuit Judge,
Joseph V. Monroe and David Copes, whose criminal appeals were consolidated for
disposition, appeal various aspects of their convictions and sentences under 18 U.S.C. §
924(c) arising from a Hobbs Act robbery. First, we must determine whether our decision
in United States v. Robinson, 844 F.3d 137 (3d Cir. 2016) was abrogated by the Supreme
Court’s decision in United States v. Davis, 139 S. Ct. 2319 (2019), which would alter the
application of 18 U.S.C. § 924(c). Next, we must decide whether Hobbs Act robbery
qualifies as a crime of violence for purposes of § 924(c). For the following reasons, we will
affirm the § 924(c) convictions, but do so on different grounds than relied upon by the
district courts. 1
I.
Monroe and Copes raise two issues on appeal. First, they claim that our decision in
United States v. Robinson, 2 which applied a modified categorical approach in determining
that Hobbs Act robbery is a crime of violence, was abrogated by the Supreme Court’s
*
This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
The district courts had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
2
844 F.3d 137 (3d Cir. 2016).
2
decision in United States v. Davis. 3 After Davis, all cases analyzed under the elements
clause must apply the categorical approach. 4 Second, defendants argue that Hobbs Act
robbery is therefore no longer a crime of violence under 18 U.S.C. § 924(c) because §
924(c)(3)(B) is unconstitutionally vague. 5 However, Hobbs Act robbery is still a crime of
violence under the “elements prong” of § 924(c) because Hobbs Act robbery satisfies §
924(c)(3)(A) using the categorical approach.
Copes and Monroe contend that their convictions under § 924(c)(3) must be vacated
because Hobbs Act robbery does not satisfy the elements clause and thus it is not a “crime
of violence.” The defendants argue that Hobbs Act robbery does not qualify as a crime of
violence because Hobbs Act robbery can be committed without the “use, attempted use, or
threatened use of physical force.” 6
Hobbs Act robbery is defined, in relevant part, 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.” 7 Section 924(c)(3)(A) defines a “crime of violence” as a felony
offense that “has as an element the use, attempted use, or threatened use of physical force
against the person or property of another.”
3
139 S. Ct. 2319 (2019).
4
Defendants and the government both agree that Davis effectively abrogated Robinson.
We accept for the purposes of this appeal that § 924(c)(3)(A) requires the categorical
approach.
5
Davis, 139 S. Ct. at 2336.
6
Copes Appellant Br. 16–20; Monroe Appellant Br. 19–22.
7
18 U.S.C. § 1951(b)(1).
3
Copes and Monroe argue that the least culpable conduct necessary to commit Hobbs
Act robbery does not meet the 924(c)(3)(A) definition. They present various non-violent
hypotheticals as alternative means of committing Hobbs Act robbery through fear of injury
to intangible property: making a restauranteur hand over money by threatening to scream
rat in front of customers, 8 making a shareholder hand over a wallet by threatening to start
a boycott of the company on social media, 9 or threatening pecuniary injury. 10 These
hypotheticals misconstrue the Hobbs Act robbery definition, and they misconstrue the
definition of “physical force” under Section 924(c)(3)(A).
Initially, we note that the defendants’ hypotheticals do not present “more than the
application of legal imagination.” 11 They do not point to any cases where courts have
applied Hobbs Act robbery in the manner hypothesized. 12 Moreover, their failure to do so
is not surprising. Their hypotheticals do not constitute the type of “injury” contemplated
by the “fear of injury” included in Hobbs Act robbery. We have previously accepted
dictionary definitions of “injure” to mean “to inflict bodily hurt on” or “[t]o do harm to,
damage, or impair. To hurt or wound, as the person.” 13 We have concluded that these
8
Copes Appellant Br. 18
9
Id.10
Monroe Appellant Br. 21.
11
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007).
12
See id. (“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 state courts in fact did apply the statute in the special (nongeneric)
manner for which he argues.”).
13
United States v. Chapman, 866 F.3d 129, 135 (3d Cir. 2017) (citing WEBSTER’S THIRD
NEW INTERNATIONAL DICTIONARY 1164 (1993) and BLACK’S LAW DICTIONARY 785
(6th ed. 1990)).
4
definitions “necessarily threaten[] the use of physical force.” 14 Thus, “‘fear of injury’
cannot occur without at least a threat of physical force” sufficient to satisfy the elements
clause for the “crime of violence” definition. 15 In addition, there is evidence that “Congress
intended the ‘physical force’ element to be satisfied by . . . fear of injury.” 16
Copes and Monroe use the wrong definition of physical force under §
924(c)(3)(A). 17 The Supreme Court has concluded that “‘physical force’ means violent
force—that is, force capable of causing physical pain or injury to another person.” 18 When
applying the appropriate “fear of injury” definition outlined above to the correct definition
of physical force, Hobbs Act robbery is clearly a crime of violence.
Conclusion
For the foregoing reasons, we will affirm Monroe’s and Copes’s convictions under 18
U.S.C. § 924(c)(3)(A).
14
Id. (“[W]e conclude that knowingly mailing a communication threatening to injure the
person of the addressee or of another necessarily threatens the use of physical force.”).
15
See United States v. Robinson, 844 F.3d 137, 151 (Fuentes, J., concurring).
16
See id. at 151 n.28 (“Congress specifically singled out the federal bank robbery statute
as a crime that is the prototypical ‘crime of violence’ captured by Section 924(c). Yet, the
federal bank robbery statute, 18 U.S.C. § 2113(a), is analogous to Hobbs Act robbery.
Section 2113 may be violated by ‘force and violence, or by intimidation,’ just as the
Hobbs Act robbery statute may be violated by ‘actual or threatened force, or violence, or
fear of injury.’ From this, we can surmise that Congress intended the ‘physical force’
element to be satisfied by intimidation or, analogously, fear of injury.” (internal citations
omitted)). See also United States v. Mathis, 932 F.3d 242, 266 (4th Cir. 2019) (“[W]e see
no material difference between [intimidation and fear of injury].”).
17
See, e.g., Copes Appellant Br. 18 (“And ‘physical force’ ‘plainly refers to force exerted
by and through concrete bodies.’”); Monroe Appellant Br. 21–22 (“Consequently, federal
robbery affecting interstate commerce does not have as an element the violent physical
force necessary to satisfy the definition of § 924(c)(3)(A).”) (emphasis added).
18
Johnson v. United States, 559 U.S. 133, 140 (2010).
5