United States v. Ladarius Robinson , 708 F. App'x 272 ( 2017 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0536n.06
Case No. 17-5200
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, ) Sep 20, 2017
DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE WESTERN DISTRICT OF
LADARIUS D. ROBINSON, ) TENNESSEE
)
Defendant-Appellant. )
BEFORE: GIBBONS, COOK, and THAPAR, Circuit Judges.
THAPAR, Circuit Judge. Along with two friends, Ladarius Robinson tried to steal
Oxycontin from a pharmacy. When the pharmacist could not open the safe, Robinson clubbed
him in the head with a handgun.
As a result of these actions, the Government charged him with aiding and abetting
robbery under the Hobbs Act, 18 U.S.C. § 1951, and aiding and abetting a crime of violence in
which a firearm was used, carried, and brandished under 18 U.S.C. § 924(c). He pled guilty to
both counts. The district court then sentenced Robinson to thirty months’ imprisonment for the
Hobbs Act count and a consecutive mandatory minimum of eighty-four months for brandishing a
firearm.
Robinson raises two issues on appeal. First, he asks that we vacate his conviction for
brandishing a firearm while committing a crime of violence on grounds foreclosed by our
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existing precedents. We decline and affirm the district court on this issue. Robinson then asks
that we vacate and remand with respect to his sentence for Hobbs Act robbery in light of Dean v.
United States, 137 S. Ct. 1170 (2017). The Government does not oppose this request, and we
grant it.
I.
Robinson first challenges his conviction under Section 924(c) because he says that Hobbs
Act robbery is not a “crime of violence.” See 18 U.S.C. § 924(c)(1)(A)(ii) (proscribing
brandishing a firearm while committing a crime of violence). One might wonder how pistol-
whipping someone during a robbery could be anything but a crime of violence. Under the
“categorical approach,” however, courts look to the elements of an offense, rather than the facts
of its commission, in determining whether it is a crime of violence. United States v. Gooch,
850 F.3d 285, 290 (6th Cir. 2017), cert. denied, 137 S. Ct. 2230 (2017). Thus it is the elements
of Hobbs Act robbery that are at issue here—not Robinson’s actual violent acts.
Under Section 924(c), “crime of violence” has a two-part definition, only one part of
which need apply. First, a crime of violence is a felony that “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). Second, a crime of violence is a felony “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).
Robinson contends that Hobbs Act robbery is not a crime of violence under the first part
of the definition and that the second part is unconstitutionally vague. Our previous decisions,
however, say otherwise, and those decisions are binding. Gooch, 850 F.3d at 291–92
(concluding that Hobbs Act robbery is a crime of violence under the first part); United States v.
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Taylor, 814 F.3d 340, 375–79 (6th Cir. 2016) (holding that the second part is not
unconstitutionally vague), reh’g denied (May 9, 2016), petition for cert. filed (U.S. Oct. 12,
2016) (No. 16-6392); see United States v. Moody, 206 F.3d 609, 615 (6th Cir. 2000) (explaining
that another panel’s ruling is binding unless a Supreme Court decision mandates otherwise or the
Sixth Circuit overrules the prior ruling en banc (citing Salmi v. Sec’y of Health & Human Servs.,
774 F.2d 685, 689 (6th Cir. 1985))).
Robinson concedes that Taylor binds us with regard to his vagueness challenge to the
second part, seeking only to preserve his arguments and awaiting help from the Supreme Court.
But he attempts to distinguish Gooch. Gooch, he says, conflates Hobbs Act robbery with
extortion. But Gooch makes no such error. The panel “consider[ed] only the portion of the
Hobbs Act defining robbery.” Gooch, 850 F.3d at 291. And it observed that Hobbs Act robbery
“requires a finding of ‘actual or threatened force, or violence, or fear of injury, immediate or
future.’” Id. (quoting 18 U.S.C. § 1951(b)(1)). Thus, in the Sixth Circuit, Hobbs Act robbery is
a crime of violence by way of Section 924(c)(3)(A). Id. at 291–92. The six other circuits that
have addressed the question all agree. Id. at 292.
Nor is Gooch inconsistent with United States v. Mitchell, 743 F.3d 1054 (6th Cir. 2014),
as Robinson also contends. Mitchell considered a different crime (robbery under Tennessee law)
under a different statute (the Armed Career Criminal Act). 743 F.3d at 1060. Thus, Mitchell did
not bind the panel in Gooch. Robinson nevertheless maintains that Mitchell’s logic demanded a
different result. But the decisions’ logic is consistent. Mitchell determined that Tennessee
robbery constitutes a violent felony under the Armed Career Criminal Act in part because it can
be committed by putting a robbery victim in fear of “imminent” or “threatening” physical injury.
Id. at 1059 (internal quotation marks omitted). Robinson contends that because Mitchell focused
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on fear of “imminent” physical injury, Gooch was incorrect to hold that Hobbs Act robbery is a
crime of violence because it can be committed by placing a victim in fear of future injury. But
every imminent injury is, by definition, a future injury, albeit one soon to occur. And
Section 924(c)(3)(A) requires only the “threatened use of physical force,” which does not
provide the temporal limitation that Robinson seeks to read into it. It is for Congress (and not
this court) to condition the statute’s plain language.
What is more, Robinson fails to present any actual cases (as opposed to hypothetical
possibilities) in which a defendant was convicted of Hobbs Act robbery achieved by a threat of
injury long in the future. He was required to do so. Gooch, 850 F.3d at 292; see United States v.
Patterson, 853 F.3d 298, 302 (6th Cir. 2017). And while Robinson suggests that Hobbs Act
robbery differs from the “generic” version of robbery, that argument is irrelevant under
Section 924(c). Compare Taylor v. United States, 495 U.S. 575, 602 (1990) (describing the
generic-version comparison called for under 18 U.S.C. § 924(e)(2)(B)(ii)), with Gooch, 850 F.3d
at 290 (describing the categorical approach under Section 924(c)).
For these reasons, Robinson’s conviction under Section 924(c) is affirmed.
II.
The second issue before us is Robinson’s request for resentencing in light of Dean. In
Dean, the Supreme Court clarified that a district court may consider a mandatory sentence
imposed under Section 924(c) in determining the proper sentence for the underlying crime of
violence. 137 S. Ct. at 1178. Following our precedent, the district court did not believe it could
consider the mandatory nature of Robinson’s Section 924(c) sentence when sentencing him for
Hobbs Act robbery. See United States v. Franklin, 622 F.3d 650, 655–56 (6th Cir. 2010),
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abrogated by Dean, 137 S. Ct. at 1170. The Government agrees that in light of this change in
the law, resentencing is appropriate. So do we.
* * *
We AFFIRM Robinson’s conviction under Section 924(c), VACATE the sentence
imposed in connection with his conviction under the Hobbs Act, and REMAND for resentencing
consistent with this opinion.
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