Is a Hobbs Act Robbery a Crime of Violence under USSG?

A Hobbs Act robbery is defined at 18 U.S.C. § 1951(b)(1) as “[T]he 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."

In June 2014, Steven Ray Prigan pleaded guilty to two counts of Hobbs Act robbery under 18 U.S.C. § 1951.  The federal judge assigned to the case sentenced Prigan to three years in federal prison and three years of supervised release.  One of the conditions of his supervised release prohibited him from possessing any firearm or ammunition.

About a year into his supervised release, in June 2018, federal officers searched Prigan’s residence and vehicle, finding firearms, ammunition and methamphetamine.  Prigan was then arrested and a grand jury indicted Prigan on two counts involving firearms.

Prigan pleaded guilty to both counts in a written plea agreement.  In November 2018, the U.S. District Court held a hearing to sentence Prigan for the 2018 firearms case. 

The Presentence Investigation Report (“PSR”) contained a federal sentencing guidelines calculation.  The PSR stated that Prigan’s 2014 conviction for Hobbs Act robbery constituted a crime of violence under U.S. Sentencing Guidelines, § 4B1.2(a).  This categorization increased Prigan’s Guidelines range from 46 to 57 months of imprisonment to 57 to 71 months of imprisonment.  See U.S.S.G. § 2K2.1(a)(3) (requiring a higher base offense level for Prigan’s Guidelines calculation if he was previously convicted of a crime of violence under § 4B1.2(a)).

Prigan objected to the PSR’s statement that his 2014 conviction for Hobbs Act robbery is a crime of violence under § 4B1.2(a) and this erroneously inflated Prigan’s Guidelines range.

The U.S. District Court judge sentencing Prigan overruled Prigan’s objection to the PSR and ruled that Prigan’s 2014 conviction for Hobbs Act robbery is crime under § 4B1.2(a).  Consequently, the district court concluded Prigan’s Guidelines range was 57 to 71 months and sentenced Prigan to 64 months in federal prison.

Prigan appealed to the U.S. Court of Appeals for the Ninth Circuit, noting that six of the “sister circuits” have held that Hobbs Act robbery is not a crime of violence under § 4B1.2(a).  See United States v. Green (4th Cir., 2021) 996 F.3d 176, 184; Bridges v. United States (7th Cir., 2021) 991 F.3d 793; United States v. Eason (11th Cir., 2020) 953 F.3d 1184, 1194; United States v. Rodriguez (3d Cir., 2019) 770 F. App’x 18, 21-22; United States v. Camp (6th Cir., 2018) 903 F. 3d 594, 604; and United States v. O’Connor (10th Cir., 2017) 874 F. 3d 1147, 1158.

The Ninth Circuit, in evaluating Prigan’s appeal, applied the “formal categorical approach” to determine whether a criminal defendant’s prior conviction is a crime of violence under § 4B1.2(a).  See Descamps v. United States (2013) 570 U.S. 254, 261.  It should be noted for the reader, that in applying such an approach, the court does not look at the facts underlying the 2014 conviction for Hobbs Act robbery.  United States v. Velasquez-Reyes (9th Cir., 2005) 427 F. 3d 1227, 1229.  Instead, the court compares the scope of conduct covered by the elements of Hobbs Act robbery with the definition of a “crime of violence” in § 4B1.2(a)”  Eason, supra, at 1189.

If the conduct covered by Hobbs Act robbery sweeps more broadly than the conduct covered by § 4B1.2(a)’s crime-of-violence definitions, Hobbs Act robbery is not categorically a crime of violence under § 4B1.2(a).  On the other hand, it the conduct covered by Hobbs Act robbery does not sweep more broadly than the conduct covered by § 4B1.2(a)’s crime-of-violence definitions, Hobbs Act robber is categorically a crime of violence under § 4B1.2(a); that is because all Hobbs Act robberies would be contained within § 4B1.2(a)’s crime-of-violence definitions.

Section 4B1.2(a) defines “crime of violence” as any federal or state offense that: (1) has an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).

The Ninth Circuit then narrowed down its scope to determining whether Hobbs Act robbery sweeps more broadly that § 4B1.2(a)’s paragraph (1), whether it is considered robbery under § 4B1.2(a)’s enumerated offenses clause or “extortion” under § 4B1.2(a)’s enumerated offense clause.

In comparing the scope of Hobbs Act robbery’s elements to those in § 4B1.2(a)’s paragraph (1), it is clear Hobbs Act robbery is defined more broadly than just § 4B1.2(a).  Hobbs Act robbery includes threatening to use force against any “person or property” but § 4B1.2(a) only includes such a threat against “the person of another.”

As to whether Hobbs Act robbery is broader than the enumerated offense of robbery under § 4B1.2(a), the Ninth Circuit noted that the Guidelines do not define robbery.  Generic federal robbery, as defined at United States v. Becerril Lopez (9th Cir. 2008) 541 F.3d 881, 891, does not extend to threats against property.

As to whether Hobbs Act robbery is broader than the enumerated offense of extortion under § 4B1.2(a), the Ninth Circuit noted the Guidelines do define extortion in Green supra, at 182, and United States v. Bankston (9th Cir., 2018) 901 F.3d 1100, 1103.  Extortion, under federal law, includes only threats to a person, not property.

Consequently, the Ninth Circuit agreed with Prigan that Hobbs Act robbery is not a crime of violence under federal law and so the sentence was vacated, the conviction reversed and the case remanded to the district court for further proceedings.

The citation for the U.S. Court of Appeals for the Ninth Circuit ruling discussed above is United States v. Steven Ray Prigan (9th Cir., 2021) 8 F. 4th 1115.

For more information about a Hobbs Act robbery, please click on the following articles: