United States v. Marcus Walker ( 2021 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 15-4062
_____________
UNITED STATES OF AMERICA
v.
MARCUS WALKER,
Appellant
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-13-cr-00391-002)
District Judge: Hon. Legrome D. Davis
_______________
ARGUED
October 5, 2020
Before: JORDAN, KRAUSE, and ROTH, Circuit Judges.
(Filed: March 5, 2021)
_______________
Linda D. Hoffa [ARGUED]
Dilworth Paxson
1500 Market Street – Suite 3500E
Philadelphia, PA 19102
Counsel for Appellant
Bernadette A. McKeon
Yvonne O. Osirim
Virginia P. Pratter
Robert A. Zauzmer [ARGUED]
Office of United States Attorney
615 Chestnut Street – Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Does an attempt to commit a crime of violence
categorically qualify as a crime of violence itself? That is the
question we must answer in applying 18 U.S.C. § 924(c),
which forbids the use or carrying of a firearm in relation to a
crime of violence. Given the language of § 924(c) and the clear
congressional intent behind it, we answer yes: an attempt to
commit a crime of violence does categorically qualify as a
crime of violence under that statute.
2
Appellant Marcus Walker challenges his conviction
under § 924(c), as well as his convictions for conspiracy to
commit Hobbs Act robbery and attempted Hobbs Act robbery
in violation of 18 U.S.C. § 1951(a). Although we earlier issued
a nonprecedential opinion affirming the District Court’s
judgment on all grounds, we vacated that opinion and granted
Walker’s request for panel rehearing following the Supreme
Court’s decision in United States v. Davis, 139 S. Ct. 2319(2019), which, in pertinent part, held that one of the definitions
of “crime of violence” in § 924(c) is unconstitutionally vague.
Id. at 2336.
In light of Davis, the most significant questions
remaining before us are whether attempted Hobbs Act robbery
is categorically a crime of violence under the remaining
definition, the so-called “elements” clause of § 924(c), 18
U.S.C. § 924(c)(3)(A), and therefore, whether Walker’s
conviction under § 924(c) can stand. Walker argues that his
conviction must be vacated because a person can be convicted
for attempted Hobbs Act robbery based on nothing more than
an intent to complete the robbery and a non-violent substantial
step – in other words, without actually committing a violent act
and with only the intent to do so. Although that is true, we
nevertheless join the majority of our sister circuits that have
considered the issue and hold that, given the plain language of
§ 924(c), attempted Hobbs Act robbery is categorically a crime
of violence. We also once more reject Walker’s complaints
about evidentiary rulings and the jury instructions. In short,
we again affirm.
3
I. BACKGROUND
This case stems from a robbery in which Walker acted
as the lookout.1 While he waited in a car, two of his
accomplices robbed a house, one holding a 12-year-old boy at
gunpoint. All of Walker’s codefendants pleaded guilty to
various counts, and Walker alone went to trial.
At trial, the government presented testimony from three
cooperating individuals who were involved in or knew about
the robbery, as well as from Agent Patrick Henning, the lead
investigator on the case. In addition to testifying about proffer
sessions he had with two of the cooperating witnesses,
Henning spoke at length about cell phone records and cell site
location information (“CSLI”) associated with cell phones
used in furtherance of the crimes.2
With respect to the cell phone records, Henning testified
that an analyst extracted data from cell phones seized from two
of the cooperators, which yielded contact lists, call records, and
text messages. In addition, the government obtained through
1
Although Walker waited in the car to act as a lookout,
the government presented evidence that Walker organized the
robbery – gathering the other robbers, suggesting the target,
and urging entry into the house although someone was home.
2
CSLI identifies the cell towers to which a cell phone
connects at certain times, allowing the government to
determine the cell phone’s approximate location at the times of
connection. See Carpenter v. United States, 138 S. Ct. 2206,
2211-12 (2018).
4
subpoena “call detail records” from the phone companies for
those same phones, which included “pages and pages of phone
records that list, with timestamps, calls that are made in
sequential order[,]” as well as subscriber information. (App. at
686.) From this information, Henning and an analyst
organized certain data into slides depicting phone contacts
between codefendants during the relevant time frame.
The CSLI evidence was obtained pursuant to a court
order, issued under the Stored Communications Act, 18 U.S.C.
§ 2703.3 With that information in hand, Henning created a
series of maps that identified “points of interest” in the case,
such as the location of the robbery target and the latitude and
longitude of the cell towers to which Walker’s and a
codefendant’s cell phones had connected at pertinent times.
(App. at 707.) When asked how CSLI worked, Henning
explained what he knew, but he began by acknowledging that
he is not an expert in the technology. Defense counsel
promptly objected on the ground that Henning was not an
expert witness.4 At side bar, the parties agreed that “just
3
Section 2703 authorizes courts to order cell phone
providers to disclose non-content information if the
government “offers specific and articulable facts showing that
there are reasonable grounds to believe that … the records or
other information sought, are relevant and material to an
ongoing criminal investigation.” 18 U.S.C. § 2703(c)(1)(B),
(d).
4
Defense counsel did not object when Henning
explained, only moments before, that “[t]his data is cell tower
locations, it’s where the phones that the men in this robbery
were using, where these phones were communicating, which
5
transposing [onto a map] the latitude and longitude” of a cell
phone tower to which a phone had connected – information
provided by the phone companies – did not require expert
analysis, and the District Court allowed Henning to proceed.
(App. at 710-11.) Henning went on to explain how the CSLI
placed Walker and an accomplice in locations that were
consistent with their involvement in the robbery.
The jury convicted Walker on all three counts, those
counts being, again, conspiracy to commit Hobbs Act robbery
in violation of 18 U.S.C. § 1951(a), attempted Hobbs Act
robbery in violation of 18 U.S.C. § 1951(a), and using and
carrying a firearm during and in relation to a crime of violence
in violation of 18 U.S.C. § 924(c). The District Court
sentenced him to a combined 72 months’ imprisonment on the
conspiracy and attempt counts and a consecutive term of 60
months on the § 924(c) count.
Walker timely appealed, arguing that the District Court
erred in four ways: (1) admitting CSLI obtained without a
search warrant as required by Carpenter v. United States, 138
S. Ct. 2206 (2018); (2) permitting Agent Henning to vouch for
cooperating witnesses’ testimony and to violate the Sixth
Amendment right to confrontation by testifying to information
in a report Henning did not create; (3) allowing conviction on
the § 924(c) count when, according to Walker, neither
conspiracy to commit Hobbs Act robbery nor attempted Hobbs
Act robbery are categorically crimes of violence under
§ 924(c); and (4) allowing the § 924(c) conviction despite
ambiguity as to whether the jury relied on attempted robbery
towers they were communicating with at certain parts—certain
parts of certain days.” (App. at 706.)
6
or conspiracy to commit robbery as the predicate crime of
violence.
As already noted, we had issued a nonprecedential
opinion affirming the District Court’s judgment and the
sentence it imposed, but following the Supreme Court’s
decision in Davis, Walker filed a petition for panel rehearing
or for rehearing en banc. He argued that Davis abrogates
United States v. Robinson, 844 F.3d 137 (3d Cir. 2016), a case
we had relied upon in denying him relief in the earlier appeal
of his § 924(c) conviction. We agreed that Robinson is no
longer controlling and granted his petition for panel rehearing.
Having vacated the original opinion and judgment, we now
address all four of Walker’s arguments again.
II. DISCUSSION5
A. Admissibility of the CSLI
We first consider the arguments related to CSLI.
Walker’s primary argument begins with the Supreme Court’s
decision in Carpenter v. United States. In Carpenter, the Court
5
The District Court had jurisdiction under 18 U.S.C.
§ 231. We have jurisdiction under 28 U.S.C. § 1291. Because
Walker raises these issues for the first time on appeal, we
review for plain error. United States v. Saada, 212 F.3d 210,
223 (3d Cir. 2000). Under the plain error standard, the
defendant must show that there was (1) an actual error, (2) that
is plain, (3) that affects the complaining party’s “substantial
rights,” and (4) that “seriously affect[ed] the fairness, integrity
or public reputation of judicial proceedings.” United States v.
Olano, 507 U.S. 725, 733-36 (1993) (citations omitted).
7
held that compliance with the Stored Communications Act
alone is not sufficient to legally access historical cell-site
records because the showing required of the government by the
Stored Communications Act “falls well short of the probable
cause required for a warrant.” 138 S. Ct. at 2221. According
to Walker, the District Court thus plainly erred when it allowed
the government to introduce CSLI obtained without a warrant.
Although it is now true that law enforcement must generally
secure a search warrant based on probable cause to obtain
CSLI, see id., Walker’s argument is foreclosed by our decision
in United States v. Goldstein, which holds that the exclusionary
rule does not apply when the government “had an objectively
reasonable good faith belief that its conduct was legal when it
acquired [the] CSLI.” 914 F.3d 200, 202 (3d Cir. 2019). As
in Goldstein, the agents here obtained the CSLI evidence in
good faith reliance on a then-valid judicial order, a then-valid
statute, and then-binding appellate authority. See id. at 204.
The District Court, therefore, did not commit any error, much
less plain error, by admitting the CSLI into evidence.
B. Agent Henning’s Testimony
Walker next argues that the District Court committed
plain error by permitting Henning to testify about the phone
records and CSLI because that testimony was based on a report
Henning did not create and therefore the testimony violated
Walker’s Confrontation Clause rights under the Sixth
Amendment. Walker also argues that Henning improperly
vouched for the testimony of the cooperating witnesses.
The Confrontation Clause provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right … to
be confronted with the witnesses against him[.]” U.S. Const.
8
amend. VI. It generally bars “admission of testimonial
statements of a witness who did not appear at trial unless he
was unavailable to testify, and the defendant had had a prior
opportunity for cross-examination.” Crawford v. Washington,
541 U.S. 36, 53-54 (2004).
Although Walker asserts that Henning was testifying
about what another investigator did, it is at least arguable that
he was speaking about his own work. The record contains
evidence that Henning personally reviewed the data at issue,
even though he worked “[i]n conjunction with an … analyst.”
(App. at 695.)6 Thus, it appears that Henning had an
independent basis on which to testify about both the phone
6
See also App. at 708 (“Q: What did you do with the
cell site data? A: I reviewed … the information from the phone
companies[.] I was able to see cell site latitude and longitude
locations, which I can just go right into a Google Maps, for
example, put in those points and see where those towers
were.”); 722 (“Q: All right. Now here we have the longer list
of calls. Let’s, could you please explain now what this slide
represents, looks -- represents in total? A: Yes. I essentially
went through each day beginning July 1st all the way until July
13th, and I looked at the records that I received from AT&T
for Marcus -- Marcus Walker’s phone to see when his first
phone call was essentially being made each morning and to see
where, which tower it was hitting off of. And consistently
every single day in the morning when his phone call or when
his phone was being activated or being used, it was hit -- hitting
off of a tower just a few blocks away from where his residence
is.”).
9
records and the CSLI.7 Cf. Bullcoming v. New Mexico, 564
U.S. 647, 662 (2011) (finding relevant to its conclusion that a
Confrontation-Clause violation occurred that the State did not
contend that the testifying analyst – who did not perform the
lab test at issue – had an “independent opinion” concerning the
test results (citation omitted)).
Assuming, however, that there was some
Confrontation-Clause error in permitting Henning’s testimony
about those matters, it was not plain. There is no consensus
concerning the proper bounds of the Confrontation Clause
when multiple people collaborate to make a testimonial
statement.8 What little law there is supports the government’s
contention that the testimony Henning proffered was
permissible. See Bullcoming, 564 U.S. at 672-73 (Sotomayor,
J., concurring in part) (noting that it was “not a case in which
the person testifying [was] a supervisor, reviewer, or someone
else with a personal, albeit limited, connection to the
7
See App. at 774 (“THE COURT: This was done in
your presence, right, the work of the analyst, lest suggesting
that - - AGENT HENNING: Yes, this was a collaborative
effort.”).
8
The Supreme Court’s Confrontation-Clause
jurisprudence does not set entirely clear boundaries. See Stuart
v. Alabama, 139 S. Ct. 36, 36 (2018) (Gorsuch, J., dissenting
from denial of writ of certiorari) (observing that “[t]his Court’s
most recent foray in [Confrontation-Clause jurisprudence
relating to forensic testing], Williams v. Illinois, 567 U.S. 50(2012), yielded no majority and its various opinions have sown
confusion in courts across the country.”).
10
[testimonial statement] at issue”); Grim v. Fisher, 816 F.3d
296, 307 (5th Cir. 2016) (“[A]t most, Bullcoming holds that if
scientist A performed the test, the prosecution cannot prove a
particular fact contained in scientist A’s testimonial
certification by offering the in-court testimony of scientist B,
if scientist B neither signed the certification nor performed or
observed the test. But Bullcoming does not hold that scientist
B cannot testify even if he has a sufficient degree of
involvement with the forensic testing.”); Meras v. Sisto, 676
F.3d 1184, 1192 (9th Cir. 2012) (Bea, J., concurring in part)
(“Bullcoming did ‘not address what degree of involvement
[with a report’s preparation] is sufficient’ to allow a supervisor
to testify in place of the primary author, but [the supervisor]
may have had enough involvement here to satisfy the
Confrontation Clause.” (citation omitted)). The claim of error
is especially weak in this case, given the parties’ agreement
that the records themselves were admissible.9
9
In addition, it is not obvious to us, and Walker has not
described, how the alleged error affected his substantial rights.
See United States v. Jimenez, 513 F.3d 62, 78-79 (3d Cir. 2008)
(rejecting a Confrontation Clause challenge where admission
of the evidence “simply had no effect on the verdict”). Three
cooperating witnesses testified that Walker participated in the
robbery. The defense engaged in a lengthy cross-examination
of Henning and did not challenge the accuracy of the data
reflected on his slides or cite any discrepancies between the
phone record exhibits and the underlying records. Thus, even
though the phone records and CSLI were corroborating
evidence, Walker has not shown a deprivation of substantial
rights on plain-error review.
11
Walker’s vouching argument also fails. Vouching
occurs when a prosecutor, or testimony elicited by a
prosecutor, (1) “assure[s] the jury that the testimony of a
Government witness is credible, and (2) this assurance [is]
based on either the prosecutor’s personal knowledge, or other
information not contained in the record.” United States v.
Berrios, 676 F.3d 118, 133-34 (3d Cir. 2012) (citation and
internal quotation marks omitted). Bolstering witness
testimony in that way is forbidden, id., and would be a problem
here if Henning’s testimony did what Walker claims. But it
did not.
There is no sensible vouching challenge to be made
because Henning’s testimony did not “invite[] a plausible jury
inference of extra-record proof of reliability[.]” United States
v. Milan, 304 F.3d 273, 290 (3d Cir. 2002). After the
cooperators themselves had testified and been cross-examined
about their version of the events, Henning testified about his
interviews with them and the cell phone data that he analyzed,
confirming that the cell phone data was “consistent with [his]
investigation[,]” that is, consistent with what the jury heard
about the various locations related to the robbery. (App. at
731-32.) Because Henning’s testimony cannot fairly be
interpreted as improperly bolstering the credibility of the
cooperators through information not in the record, Walker’s
vouching argument fails. See Milan, 304 F.3d at 290 (finding
no plain error where the defendant failed “to show that the
prosecutors referred to facts not adduced at trial or offered
personal opinions to bolster the integrity and believability of
their witnesses”).
12
C. Attempted Hobbs Act Robbery as Predicate
for § 924(c) Conviction10
Walker next argues that, after the Supreme Court’s
decision in Davis, attempted Hobbs Act robbery cannot serve
as a valid predicate crime of violence under the elements clause
of § 924(c). We disagree.
Prior to Davis, there were two statutory avenues
available for determining an offense to be a crime of violence
under § 924(c): either through what is called the “residual”
clause or through the elements clause of the statute. 18 U.S.C.
§ 924(c)(3). The residual clause defines a “crime of violence”
as “an offense that is a felony and – 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.” Id. § 924(c)(3)(B). In Davis, however, the
Supreme Court held that language to be unconstitutionally
10
Because the jury instructions make clear that the
predicate crime for Walker’s § 924(c) conviction was
attempted Hobbs Act robbery (see infra section II.D.), we do
not need to consider whether conspiracy to commit Hobbs Act
robbery is categorically a crime of violence under § 924(c).
We note, however, the government’s concession that “Walker
correctly observes that the government, and several appellate
courts, have acknowledged after Davis that a conspiracy crime
is not a proper 924(c) predicate under the elements clause.”
(Appellee Sept. 2019 Suppl. Ltr. at 2.) See, e.g., United States
v. Barrett, 937 F.3d 126, 130 (2d Cir. 2019); United States v.
Simms, 914 F.3d 229, 233-34 (4th Cir. 2019); United States v.
Lewis, 907 F.3d 891, 895 (5th Cir. 2018).
13
vague. Davis, 139 S. Ct. at 2336. Accordingly, an offense is
now a “crime of violence” within the meaning of the statute
only if it meets the definition contained in the elements clause,
§ 924(c)(3)(A). That clause defines a “crime of violence” 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.” 18 U.S.C. § 924(c)(3)(A).
The Supreme Court in Davis also indicated that the
categorical approach is to be used when deciding whether a
conviction is a crime of violence under the elements clause.
Davis, 139 S. Ct. at 2328. We accordingly must ask whether
the minimum conduct punishable as attempted Hobbs Act
robbery qualifies as a crime of violence. See Moncrieffe v.
Holder, 569 U.S. 184, 190-91 (2013) (explaining that, under
the categorical approach, we “presume that the conviction
rested upon nothing more than the least of the act criminalized,
and then determine whether even those acts are encompassed
by the generic federal [definition of § 924(c)]” (citations and
internal quotation marks omitted)).
Our sister courts of appeals are split on the answer to
that question. The Fifth, Seventh, Ninth, and Eleventh Circuits
have all held that attempted Hobbs Act robbery is categorically
a crime of violence under the elements clause of § 924(c).
United States v. Dominguez, 954 F.3d 1251, 1261 (9th Cir.
2020); United States v. Ingram, 947 F.3d 1021, 1025-26 (7th
Cir. 2020); United States v. St. Hubert, 909 F.3d 335, 351-53
(11th Cir. 2018), abrogated in part on other grounds by Davis,
139 S. Ct. 2319 (2019); see United States v. Smith, 957 F.3d
590, 596 (5th Cir. 2020) (holding that an “attempt offense that
includes the specific intention to commit a COV [“crime of
violence”] and a substantial step in an effort to bring about or
14
accomplish that COV, is in and of itself a COV under the
elements clause.”). The Fourth Circuit disagreed, however,
and recently adopted the position expressed in some dissenting
opinions from those other courts, holding that attempted Hobbs
Act robbery is not categorically a crime of violence. United
States v. Taylor, 979 F.3d 203, 209-10 (4th Cir. 2020); see also
United States v. Tucker, No. 18-0119, 2020 WL 93951, at *6
(E.D.N.Y. Jan. 8, 2020) (“[T]his Court concurs with
[dissenting] judges of the 11th Circuit that, ‘it is incorrect to
say that a person necessarily attempts to use physical force
within the meaning of 924(c)’s elements clause just because he
attempts a crime that, if completed would be violent.’” (citation
omitted)). Given the statutory language and the clear
congressional intent behind it, we join the courts that hold
attempted Hobbs Act robbery is categorically a crime of
violence.
1. Completed Hobbs Act Robbery
Our reasoning begins with a consideration of whether
Hobbs Act robbery as a completed act, rather than an attempt,
is categorically a crime of violence. The Hobbs 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, 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.
15
18 U.S.C. § 1951(b)(1). Every court of appeals to consider the
issue has held that Hobbs Act robbery is indeed a crime of
violence for purposes of § 924(c),11 and we agree. Although
we have no binding precedent of our own on this issue, a
concurring opinion in United States v. Robinson concluded that
“Hobbs Act robbery is categorically a crime of violence under
Section 924(c)(3).” 844 F.3d 137, 151 (3d Cir. 2016) (Fuentes,
J., concurring). The opinion reasoned that, because the
Supreme Court has defined “physical force” to be simply
“force capable of causing physical pain or injury to another
person,” all the alternative means of committing a Hobbs Act
robbery – actual or threatened force, or violence, or fear of
injury – can satisfy § 924(c)(3)(A)’s requirement of “use,
attempted use, or threatened use of physical force[.]” Id.
(citations omitted). In other words, “by definition, a jury could
have found ‘actual or threatened force, or violence, or fear of
injury’ only if the defendant used, attempted to use, or
threatened to use physical force because ‘fear of injury’ cannot
occur without at least a threat of physical force, and vice
versa.” Id.
11
See United States v. Dominguez, 954 F.3d 1251, 1261
(9th Cir. 2020); United States v. Mathis, 932 F.3d 242, 266 (4th
Cir. 2019); United States v. Jones, 919 F.3d 1064, 1072 (8th
Cir. 2019); United States v. Garcia-Ortiz, 904 F.3d 102, 106-
09 (1st Cir. 2018); United States v. Melgar-Cabrera, 892 F.3d
1053, 1060-66 (10th Cir. 2018); United States v. Hill, 890 F.3d
51, 60 (2d Cir. 2018); United States v. Fox, 878 F.3d 574, 579
(7th Cir. 2017); United States v. Gooch, 850 F.3d 285, 292 (6th
Cir. 2017); United States v. Buck, 847 F.3d 267, 275-76 (5th
Cir. 2017); In re St. Fleur, 824 F.3d 1337, 1340-41 (11th Cir.
2016).
16
The concurrence further noted that “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.” Id. at
151 n.28 (citing S. Rep. No. 98-225, at 312-13 (1983)) (other
citation omitted). Both involve force, violence, or
intimidation, described in various ways, from which “we can
surmise that Congress intended the ‘physical force’ element to
be satisfied by intimidation or, analogously, fear of injury.” Id.That analysis is thoroughly persuasive, but Walker
disputes it. He argues that Hobbs Act robbery cannot be a
crime of violence because it can be completed by taking money
from a victim “through fear of injury to the victim’s intangible
property” without the use or threatened use of force.
(Appellant Dec. 2020 Suppl. Ltr. at 3.) Not so.
The history of the Hobbs Act makes clear that a physical
act is a key component of Hobbs Act robbery. We long ago
explained why in United States v. Nedley, 255 F.2d 350 (3d
Cir. 1958). During the promulgation of the Hobbs Act,
Representative Sam Hobbs of Alabama and several other
members of Congress confirmed that the terms “robbery” and
“extortion” in the Act were based on the then-existing New
York penal laws, which defined robbery consistently with the
common law definition of that crime. Id. at 355-56. “The
legislative debates are replete with statements that the conduct
punishable under the Hobbs Act was already punishable under
state robbery and extortion statutes.” United States v. Culbert,
435 U.S. 371, 379 (1978) (citations omitted). And because
“[r]obbery, at common law, is the felonious and forcible taking
from the person of another of goods or money to any value by
17
violence or putting him in fear[,]” Nedley, 255 F.2d at 356(citation and internal quotation marks omitted), it follows that
a non-forcible taking based on fear of injury to intangible
property would not be sufficient to satisfy the force
requirement of Hobbs Act robbery, since Hobbs Act robbery is
simply a common law robbery that affects interstate
commerce.12
Therefore, consistent with the reasoning in the
concurrence in Robinson and with the position taken by our
12
Relying on the Supreme Court’s decision in Gonzales
v. Duenas-Alvarez, 549 U.S. 183, 193 (2007), the First and
Ninth Circuits have similarly held that a hypothetical robbery
involving intangible economic interests does not eliminate
Hobbs Act robbery as a crime of violence under § 924(c)
“because [the defendant] fails to point to any realistic scenario
in which a robber could commit Hobbs Act robbery by placing
his victim in fear of injury to an intangible economic interest.”
Dominguez, 954 F.3d at 1260; see also Garcia-Ortiz, 904 F.3d
at 107 (rejecting the argument that Hobbs Act robbery can be
committed by threatening to devalue some intangible
economic interest because “we need not consider a theorized
scenario unless there is a ‘realistic probability’ that courts
would apply the law to find an offense in such a scenario”).
We reach the same conclusion without reliance on the realistic-
probability inquiry. See Salmoran v. Att’y Gen., 909 F.3d 73,
81 (3d Cir. 2018) (“[W]here the elements of the crime of
conviction are not the same as the elements of the generic
federal offense ... the realistic probability inquiry ... is simply
not meant to apply[.]” (citations and internal quotation marks
omitted)).
18
sister circuits, we conclude that completed Hobbs Act robbery
necessarily has as an element the use, attempted use, or
threatened use of physical force against the person or property
of another and is therefore categorically a crime of violence.
2. Attempted Hobbs Act Robbery
With that in mind, we turn to a consideration of
attempted Hobbs Act robbery and note at the outset the general
definition of attempt offenses. “[A]n attempt conviction
requires evidence that a defendant (1) acted with the requisite
intent to violate the statute, and (2) performed an act that, under
the circumstances as he believes them to be, constitutes a
substantial step in the commission of the crime.” United States
v. Tykarsky, 446 F.3d 458, 469 (3d Cir. 2006) (citation
omitted). The elements clause of § 924(c) describes a crime of
violence as including the attempted use of force. More
specifically, it says a crime of violence is “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[.]” 18 U.S.C. § 924(c)(3)(A) (emphasis added). As
the government points out, “[t]he Eleventh Circuit and other
courts of appeals have persuasively held that an attempt to
commit a crime that requires the use, attempted use, or
threatened use of physical force is itself a ‘crime of violence’
under Section 924(c)(3)(A) and similarly worded elements
clause provisions.” (Appellee Sept. 2019 Suppl. Ltr. at 2.) Put
simply, those courts hold that, because § 924(c) explicitly
includes “attempted use” of physical force in the definition of
a crime of violence, a conviction for attempt to commit a crime
of violence is necessarily sufficient to serve as a predicate
under § 924(c). There is, however, a contrary view, and so, to
19
explain our own reasoning, we first lay out the competing
arguments from other courts.
The view that attempted Hobbs Act robbery is
categorically a crime of violence begins with the Seventh
Circuit’s decision in Hill v. United States, 877 F.3d 717, 719
(7th Cir. 2017), cert. denied, 139 S. Ct. 352 (2018). The court
in Hill considered whether a defendant’s conviction for
attempted murder qualified as a violent felony under the
Armed Career Criminal Act (“ACCA”). Id. at 718. Similar to
§ 924(c), the ACCA has an elements clause that labels a violent
felony as one that “has as an element the use, attempted use, or
threatened use of physical force against the person of
another[.]” Id.
The defendant in Hill argued that, because an attempt
crime under Illinois law consists of setting out to commit a
crime and taking a substantial step toward accomplishing that
end, it is possible to attempt murder without using, attempting,
or threatening physical force. Id. at 719. One might, for
example, draw up assassination plans and buy a gun without
any actual use, attempted use, or threatened use of physical
force. The Seventh Circuit rejected that argument, holding
that, “[w]hen a substantive offense would be a violent felony
under [the ACCA] and similar statutes, an attempt to commit
that offense also is a violent felony.” Id. The court declared
that “an attempt to commit a crime should be treated as an
attempt to commit every element of that crime[.]” Id. Later,
in United States v. Ingram, the Seventh Circuit applied the
holding from Hill to conclude that attempted Hobbs Act
robbery is, for purposes of § 924(c), categorically a crime of
violence. 947 F.3d at 1026.
20
In the meantime, the Eleventh Circuit also applied the
reasoning from Hill to a § 924(c) case. In United States v. St.
Hubert, the court concluded that, like completed Hobbs Act
robbery, attempted Hobbs Act robbery qualifies as a crime of
violence. The court said that “because the taking of property
from a person against his will in the forcible manner required
by [the Hobbs Act] necessarily includes the use, attempted use,
or threatened use of physical force, then by extension the
attempted taking of such property from a person in the same
forcible manner must also include at least the ‘attempted use’
of force.” 909 F.3d at 351 (citations omitted).
When the Eleventh Circuit denied rehearing en banc in
St. Hubert, a dissent challenged the reasoning adopted from
Hill. United States v. St. Hubert, 918 F.3d 1174, 1210 (11th
Cir. 2019) (Pryor, Jill, J. joined by Wilson and Martin, JJ.,
dissenting) (hereinafter “St. Hubert II”). That dissent rejected
the conclusion that an attempt to commit a crime should be
treated as an attempt to commit every element of that crime,
saying instead that “[i]ntending to commit each element of a
crime involving the use of force simply is not the same as
attempting to commit each element of that crime.” Id. at 1212.
According to the dissent, it is incorrect to say that a person
necessarily attempts to use physical force within the meaning
of § 924(c) just because he attempts a crime that, if completed,
would involve force. Id.
The Ninth Circuit soon thereafter in United States v.
Dominguez sided with the Seventh and Eleventh Circuits in
holding that, when a substantive offense would be a crime of
violence under § 924(c), an attempt to commit that offense is
also a crime of violence. 954 F.3d at 1261. It said that the
“reasons for this are straightforward” because § 924(c)
21
“explicitly includes as crimes of violence offenses that have as
an element the ‘attempted use’ or ‘threatened use’ of force. In
order to be guilty of attempt, a defendant must intend to
commit every element of the completed crime. … An attempt
to commit a crime should therefore be treated as an attempt to
commit every element of that crime.” Id. (citations omitted).13
The Fifth Circuit also agreed, adopting the same reasoning in
United States v. Smith and holding that a predicate attempt
offense that includes the specific intention to commit a crime
of violence and a substantial step to bring about or accomplish
that crime of violence, “is in and of itself a [crime of violence]
under the elements clause.” 957 F.3d at 596.
Finally, and most recently, the Fourth Circuit split from
the consensus and adopted the dissenting view, holding that
“[w]here a defendant takes a nonviolent substantial step toward
threatening to use physical force … the defendant has not used,
attempted to use, or threatened to use physical force. Rather,
the defendant has merely attempted to threaten to use physical
13
Reiterating the concerns of the Eleventh Circuit
dissent, a dissenting opinion in Dominguez challenged the
majority’s conclusion that an attempt to commit a crime should
be treated as an attempt to commit every element of that crime.
954 F.3d at 1264 (Nguyen, J., concurring in part and dissenting
in part). It argued that the majority’s conclusion “doesn’t
follow as a matter of law or logic. There is no legal basis to
conclude from an attempt conviction that the defendant
attempted to commit every element of the underlying crime.
And there’s a logical gap: the majority conflates attempt and
intent. Only by substituting ‘intended’ for ‘attempted’ does the
majority’s analysis make sense.” Id.
22
force. The plain text of § 924(c)(3)(A) does not cover such
conduct.” Taylor, 979 F.3d at 208.
In the present case, Walker of course urges us to reject
the reasoning of the Fifth, Seventh, Ninth, and Eleventh
Circuits and instead adopt the approach taken by the Fourth
Circuit. Specifically, he argues that attempted Hobbs Act
robbery is not a crime of violence because “it does not
categorically require the attempted use of physical force—
much less the use or threatened use of physical force—against
the person or property of another.” (Appellant Sept. 2019
Suppl. Ltr. at 2.) Quoting the dissent in St. Hubert II, he says
that “[i]ntending to commit each element of a crime involving
the use of force simply is not the same as attempting to commit
each element of that crime.” (Id. at 3.) Finally, he argues that
attempted Hobbs Act robbery cannot categorically be a crime
of violence because a person can be convicted of Hobbs Act
robbery based on an empty threat of force. It is possible, he
says, for a person “with no intention of using ‘actual’ force” to
be convicted of attempted Hobbs Act robbery. (Id. at 4.)
Although it is true that an intent to act is not the
equivalent of an attempt to act, we nevertheless are
unpersuaded by Walker’s arguments and instead agree with the
majority of courts of appeals that § 924(c) does categorically
encompass attempted Hobbs Act robbery. We think it apparent
that Congress meant for all attempted crimes of violence to be
captured by the elements clause of § 924(c), and courts are not
free to disregard that direction and hold otherwise.
Beginning with the language of the statute, we read the
phrase “has as an element the … attempted use … of physical
force” to capture attempt offenses because the word “attempt”
23
is a term of art in criminal law that attaches liability to an
incomplete crime when “the perpetrator not only intended to
commit the completed offense, but also performed …. an
‘overt act’ that constitutes a ‘substantial step’ toward
completing the offense.” United States v. Resendiz-Ponce, 549
U.S. 102, 106-07 (2007) (citations omitted). The word is not
used in the general sense of something unsuccessfully tried. To
hold that attempt crimes are beyond the reach of § 924(c) based
on a generic definition of “attempt” would be to disregard how
that word has been “used in the law for centuries.”14 Id. at 107;
see id. at 108 n.4 (concluding that an indictment charging an
14
The dissent to the Ninth Circuit’s Dominguez opinion
argued that an attempted use of force under § 924(c) “refers to
a defendant’s physical act of trying (but failing) to use violent
physical force” (i.e., generic attempt versus attempt as an
offense). Dominguez, 954 F.3d at 1264 (Nguyen, J., dissenting
in part). According to that dissent, because the other two
qualifying elements – using and threatening to use force –
obviously refer to acts, we must interpret “attempted use”
similarly under the principle of noscitur a sociis, or
interpreting an ambiguous item in a list to possess the same
attribute as its companion items in that list. Id. But unlike “use
of force” and “threatened use of force,” we can find no crime
that has attempted use of force as an element of a completed
offense. As the name suggests, the crimes that turn on
attempted acts of force are in fact attempt offenses. Cf. United
States v. Jackson, 964 F.3d 197, 203 (3d Cir. 2020)
(“[A]ccording to the ‘anti-surplusage’ canon, ‘[i]t is our duty
to give effect, if possible, to every clause and word of a
statute.’” (second alteration in original) (citing Duncan v.
Walker, 533 U.S. 167, 174, (2001)).
24
attempt crime need not specifically allege a particular overt act
because “we think that the ‘substantial step’ requirement is
implicit in the word ‘attempt’”); Sullivan v. Stroop, 496 U.S.
478, 483 (1990) (“But where a phrase in a statute appears to
have become a term of art … any attempt to break down the
term into its constituent words is not apt to illuminate its
meaning.”); cf. United States v. Nasir, 982 F.3d 144, 159 (3d
Cir. 2020) (en banc) (noting that the similar definition of crime
of violence under the United States Sentencing Guidelines
§ 4B1.2(a) does explicitly include inchoate crimes). To give
the word “attempt” its due, we think it best read in its technical
sense.
The manner in which federal attempt crimes are
typically defined further supports that reading. Rather than
rely on a general statute outlawing all attempts to violate
federal criminal law, Congress has chosen to interweave
prohibitions on attempted crimes within the statutes defining
the underlying substantive offenses.15 In those statutes, it is
15
See, e.g., 18 U.S.C. §§ 844(f)(1) (destruction of U.S.
property) (“Whoever maliciously damages or destroys, or
attempts to damage or destroy, by means of fire or an
explosive, [U.S. property,] ... shall be imprisoned for not less
than 5 years and not more than 20 years, fined under this title,
or both.”); 1951(a) (robbery and extortion) (“Whoever 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 so to do … shall
be fined under this title or imprisoned not more than twenty
years, or both.”); 1956(a)(1) (money laundering) (“Whoever
... conducts or attempts to conduct such a financial transaction
... shall be sentenced to a fine of not more than $500,000 ... or
25
clear that the words “attempts to” authorize the prosecution of
attempt offenses. We similarly read the words “attempted use”
in the elements clause of § 924(c) to capture attempt offenses.
Again, to hold that attempted crimes of violence are not
categorically crimes of violence themselves would ignore the
time-tested meaning of “attempt” as used throughout the
criminal code. Even in the odd realm of the categorical
approach, “we shall not read into the statute a definition … so
obviously ill suited to its purposes.” Taylor v. United States,
495 U.S. 575, 594 (1990).
Our own prior interpretations of congressional intent
further support the conclusion that attempted crimes of
violence qualify as crimes of violence themselves. Section
924(c) assures additional punishment for those who create
heightened risk or cause additional harm through the
possession or use of a firearm in connection with a crime of
violence or a drug trafficking offense. We have recognized
that “Congress’s ‘overriding purpose’ in passing Section
924(c) ‘was to combat the increasing use of guns to commit
federal felonies.’ … The chief sponsor of this provision
explained that ‘the provision seeks to persuade the man who is
tempted to commit a Federal felony to leave his gun at home.’”
United States v. Walker, 473 F.3d 71, 78 (3d Cir. 2007)
(emphasis added) (quoting Simpson v. United States, 435 U.S.
6, 10 (1978); Muscarello v. United States, 524 U.S. 125, 132
(1998)).
imprisonment for not more than twenty years, or both.”).
Reading “attempted use” to capture attempt offenses is thus
consistent with broader federal treatment of attempt offenses.
26
It seems abundantly clear that, by adding “attempted
use” to the elements clause, Congress was not inviting us to
engage in the casuistry so often associated with the categorical
approach and to thereby read those same words out of the
statute. The elected lawmakers wanted to categorically include
attempt crimes in the statutory definition, and they said so
plainly. Cf. Quarles v. United States, 139 S. Ct. 1872, 1879
(2019) (Cautioning that in the application of the categorical
approach, statutes should not be interpreted in a manner that
would eliminate most crimes of the same type from the generic
definition selected by Congress because doing so “not only
would defy common sense, but also would defeat Congress’[s]
stated objective of imposing enhanced punishment …. We
should not lightly conclude that Congress enacted a self-
defeating statute.”). We thus follow the majority rule that
attempted Hobbs Act robbery is categorically a crime of
violence under § 924(c) and accordingly hold that Walker’s
attack on his firearms conviction fails.
D. Jury Instructions
Although not affected by the Supreme Court’s Davis
decision, Walker also renews his argument that the jury
instructions in this case were insufficient because they leave
open to doubt whether his § 924(c) conviction rested on his
having conspired to commit Hobbs Act robbery or his having
attempted to commit such robbery. There is a serious argument
that only the latter can properly serve as a predicate for a
§ 924(c) conviction.16 That argument is immaterial now,
16
Supra note 10 (explaining that the government
concedes that “Walker correctly observes that the government,
and several appellate courts, have acknowledged after Davis
27
however, because the instructions made it sufficiently clear
that the attempt was the predicate offense.
The jury was instructed that, to convict Walker on the
§924(c) count, it had to find beyond a reasonable doubt:
that the conspirator or the accomplice committed
the crime of attempted interference with
interstate commerce by robbery. So you would
have to find … that during and in relation to the
commission of that attempted Hobbs Act
robbery, the Defendant or one of his accomplices
or conspirators knowingly used or carried a
firearm.
(App. at 885 (emphasis added).) Although the word “attempt”
was repeatedly used in the instruction and the predicate crime
was expressly identified as “attempted Hobbs Act robbery,”
Walker says the District Court erred in telling the jury that a
conviction could be sustained if the “[d]efendant or one of his
accomplices or conspirators knowingly used or carried a
firearm.” (Id. (emphasis added); Appellant Sept. 2019 Suppl.
Ltr. at 5.)
We remain unpersuaded. As the government points out,
nothing in Davis affects our earlier case-specific conclusion
that the District Court was clear enough when it instructed the
jury on the attempt charge. That suffices for affirmance.
that a conspiracy crime is not a proper 924(c) predicate under
the elements clause.”) (quoting Appellee Sept. 2019 Suppl. Ltr.
at 2 (emphasis added)).
28
III. CONCLUSION
For the foregoing reasons, we will affirm the District
Court’s judgment and sentence.
29