United States v. Andrew McHaney

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1690
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANDREW MCHANEY,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:18-cr-00045-2 — Elaine E. Bucklo, Judge.
____________________
ARGUED DECEMBER 11, 2020 — DECIDED JUNE 14, 2021
____________________
Before ROVNER, HAMILTON, and SCUDDER, Circuit Judges.
ROVNER, Circuit Judge. Andrew McHaney is not the first
defendant to try to persuade this court that Hobbs Act rob-
bery is not a crime of violence as defined under 18 U.S.C.
§ 924(c). And despite our growing, unequivocal precedent to
the contrary, we suspect he will not be the last, as defendants
who are subject to the § 924(c) enhancement face significantly
increased sentences. Unless the Supreme Court instructs oth-
erwise, however, these attempts will be in vain. This court has
2 No. 20-1690
declared several times that Hobbs Act robbery meets the def-
inition of a crime of violence under 18 U.S.C. § 924(c) and thus
is a qualifying predicate crime under the statute. We see no
cause to alter that precedent.
I.
McHaney participated in at least four armed robberies at
cellular phone stores around Chicago. Just as he was attempt-
ing a fifth, he was arrested. The United States charged him
with one count of Hobbs Act conspiracy (18 U.S.C. § 1951(a);
Count 1); four counts of Hobbs Act robbery (18 U.S.C.
§ 1951(a); Counts 2, 4, 6, and 9); one count of attempted Hobbs
Act robbery (18 U.S.C. § 1951(a); Count 11); three counts of
using, carrying, and brandishing a firearm during and in re-
lation to a crime of violence (18 U.S.C. § 924(c)(1)(A); Counts
5, 7, and 10); one count of using and carrying a firearm during
and in relation to a crime of violence (18 U.S.C. § 924(c)(1)(A);
Count 12); and one count of possession of a firearm by a felon
(18 U.S.C. § 922(g)(1); Count 13).
McHaney moved the district court to dismiss Counts
5,7,10, and 12, each of which allege violations of 18 U.S.C.
§ 924(c), arguing that Hobbs Act robbery does not qualify as
a crime of violence under section 924(c)(3)(A). The district
court declined to dismiss the counts. Eventually McHaney en-
tered into a plea agreement and was later sentenced to 177
months in prison. In his plea he reserved his right to appeal
the question presented here: whether Hobbs Act robbery is a
crime of violence as defined in 18 U.S.C. § 924(c)(3).
II.
Section § 924(c) of the criminal code establishes minimum
penalties for anyone who uses or carries a firearm during a
No. 20-1690 3
“crime of violence” or possesses a firearm in furtherance of
such a crime. 18 U.S.C. § 924(c)(1)(A). Those penalties increase
even more if the gun is brandished (as it was by McHaney in
some of the robberies) and more still if discharged. Id. But
what counts as a crime of violence? The statute defines it as
follows:
(3) For purposes of this subsection the term
“crime of violence” means an offense that is a
felony and—
(A) has as an element the use, attempted use,
or threatened use of physical force against
the person or property of another, or
(B) 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.
18 U.S.C.A. § 924(c)(3).
In United States v. Davis, 139 S. Ct. 2319 (2019), the Supreme
Court held that the (B) clause above, often called the “residual
clause,” was unconstitutionally vague. Id. at 2336. This hold-
ing came on the heels of two other Supreme Court cases that
found similar language in other such “residual clauses” to be
unconstitutionally vague. See Johnson v. United States, 576 U.S.
591, 606 (2015) (finding the residual clause of Armed Career
Criminal Act, 18 U.S.C. § 924(e)(2)(B), to be unconstitutionally
vague); Sessions v. Dimaya, 138 S. Ct. 1204, 1223 (2018) (finding
unconstitutionally vague the residual clause of the federal
criminal code’s definition of “crime of violence,” 18 U.S.C.
§ 16(b), as incorporated into the Immigration and Nationality
4 No. 20-1690
Act’s definition of aggravated felony).1 Consequently, in our
de novo review in this case, we look only to see whether
Hobbs Act robbery meets the definition of robbery spelled out
in § 924(c)(3)(A)—often referred to as the “force clause.” See
United States v. Vesey, 966 F.3d 694, 696 (7th Cir. 2020) (“We
review de novo the question whether a prior conviction qual-
ifies as a crime of violence under the Guidelines.”).
The Hobbs Act defines robbery as taking or obtaining
property from another “by means of actual or threatened
force, violence, or fear of injury, immediate or future, to his
person or property.” 18 U.S.C. § 1951(a). In United States v.
Anglin we held that “committing such an act necessarily re-
quires using or threatening force,” because putting a person
in fear of injury to person or property as described in Hobbs
Act robbery “necessarily involve[s] ‘the use, attempted use,
or threatened use of physical force against the person of an-
other.’” United States v. Anglin, 846 F.3d 954, 965 (7th Cir. 2017)
(citing 18 U.S.C. § 924(c)(3)(A)), cert. granted, judgment vacated
on other grounds, 138 S. Ct. 126 (2017).
1 In addition to these cases, McHaney might also have been encouraged
in his efforts by rulings that have concluded that Hobbs Act robbery is not
a crime of violence as that term is defined in the United States Sentencing
Guidelines. See, e.g., Bridges v. United States, 991 F.3d 793, 800 (7th Cir.
2021). But the sentencing guidelines do not provide an apt comparison.
The Guidelines definition of robbery is more narrow than that in the
Hobbs Act, requiring a threat of a violence against a person. A defendant
can commit Hobbs Act robbery by threatening physical violence against
any “person or property.” 18 U.S.C. § 1951(a). Thus, under the categorical
method of comparing crimes, a person could be convicted of Hobbs Act
robbery without meeting the Sentencing Guidelines definition of robbery.
Id. at 800–01.
No. 20-1690 5
Since we issued the decision in Anglin, we have held time
and again that Hobbs Act robbery qualifies as a crime of vio-
lence under the elements clause—(§ 924(c)(3)(A))—because it
entails the use or threat of force. See United States v. Hammond,
996 F.3d 374, 398 (7th Cir. 2021) (“We squarely decided this
issue in United States v. Anglin in holding that Hobbs Act rob-
bery is a ‘crime of violence’ within the meaning of the ele-
ments clause of § 924(c)(3)(A)”); United States v. Brown, 973
F.3d 667, 697 (7th Cir. 2020), cert. denied, 141 S. Ct. 1253 (2021)
(“We have squarely rejected this argument” that Hobbs Act
robbery is not a crime of violence under § 924(c)(3)(A)); United
States v. Fisher, 943 F.3d 809, 815 (7th Cir. 2019), cert. denied,
140 S. Ct. 2631 (2020) (“[W]e have repeatedly held that a
Hobbs Act robbery is a crime of violence within the meaning
of § 924(c)(3)(A).”); Haynes v. United States, 873 F.3d 954, 955
(7th Cir. 2017) (recognizing in dicta that Hobbs Act robbery is
a crime of violence under the elements clause of
§ 924(c)(3)(A)); United States v. Rivera, 847 F.3d 847, 849 (7th
Cir.), cert. denied, 137 S. Ct. 2228 (2017) (“Because one cannot
commit Hobbs Act robbery without using or threatening
physical force, we held that Hobbs Act robbery qualified as a
predicate crime for a crime-of-violence conviction.”).
Every other court of appeals to have considered this
agrees with this conclusion. See United States v. Walker, 990
F.3d 316, 325 (3d Cir. 2021); United States v. Dominguez, 954
F.3d 1251, 1261 (9th Cir. 2020); Brown v. United States, 942 F.3d
1069, 1075 (11th Cir. 2019), cert. denied, 577 U.S. 1091 (2016);
United States v. Mathis, 932 F.3d 242, 266 (4th Cir.), cert. denied
sub nom. Uhuru v. United States, 140 S. Ct. 639, and cert. denied
sub nom. Stokes v. United States, 140 S. Ct. 640 (2019); United
States v. St. Hubert, 918 F.3d 1174, 1175 (11th Cir. 2019); United
States v. Bowens, 907 F.3d 347, 353 (5th Cir. 2018), cert. denied,
6 No. 20-1690
139 S. Ct. 1299 (2019); United States v. Garcia-Ortiz, 904 F.3d
102, 109 (1st Cir. 2018), cert. denied, 139 S. Ct. 1208 (2019);
United States v. Hill, 890 F.3d 51, 56 (2d Cir. 2018), cert. denied,
139 S. Ct. 844 (2019); United States v. Melgar-Cabrera, 892 F.3d
1053, 1065–66 (10th Cir.), cert. denied, 139 S. Ct. 494 (2018); Diaz
v. United States, 863 F.3d 781, 783 (8th Cir. 2017); United States
v. Gooch, 850 F.3d 285, 292 (6th Cir. 2017), cert. denied, 137 S. Ct.
2230. The Supreme Court has declined to accept certiorari on
this issue in any of these cases.
None of McHaney’s arguments persuades us that our
precedent and those of every other circuit court to have con-
sidered the issue are incorrect. Contrary to the defendant’s ar-
guments, we have concluded that putting any person in fear
in the context of robbery necessarily involves “the use, at-
tempted use, or threatened use of physical force against the
person of another.” See Anglin, 846 F.3d at 965; United States v.
Armour, 840 F.3d 904, 907 (7th Cir. 2016), as amended (June 26,
2017). Given our precedent, we have advised that arguments
that Hobbs Act robbery is not a crime of violence are, in fact,
“frivolous.” Hammond, 996 F.3d at 39 (citing United States v.
Fox, 783 F. App’x 630, 632 (7th Cir. 2019)). Consequently, the
opinion of the district court is AFFIRMED.