United States of America v. STEVEN RAY PRIGAN

St. Louis, MO - Criminal defense lawyer represented defendant with a illegally possessing firearms charge.

This case involves Steven Prigan's sixty-four-month

sentence of imprisonment for illegally possessing firearms

in 2018. To correctly calculate Prigan's Sentencing

Guidelines range for the 2018 firearms offense, the district

court had to first perform a categorical-approach analysis

and answer the following question: whether Prigan's 2014

conviction for Hobbs Act robbery under 18 U.S.C.

§ 1951(b)(1) is a "crime of violence” according to United

States Sentencing Guidelines § 4B1.2(a). The answer to that

question determined whether Prigan's Guidelines range

would increase. See U.S. Sent'g Guidelines Manual

("U.S.S.G.”) § 2K2.1(a)(3) (U.S. Sent'g Comm'n 2018)

(requiring a higher base offense level for a defendant who

was previously convicted of a crime of violence under

§ 4B1.2(a)).

The district court determined that Prigan's 2014

conviction for Hobbs Act robbery is a crime of violence

4 UNITED STATES V. PRIGAN

under § 4B1.2(a) and increased Prigan's Guidelines range.

On appeal, Prigan argues that the district court erred in

concluding that his 2014 conviction for Hobbs Act robbery

is a crime of violence under § 4B1.2(a). Six of our sister

circuits have held that Hobbs Act robbery is not a crime of

violence under § 4B1.2(a). See United States v. Green,

996 F.3d 176, 184 (4th Cir. 2021); Bridges v. United States,

991 F.3d 793, 800 (7th Cir. 2021); United States v. Eason,

953 F.3d 1184, 1194 (11th Cir. 2020); United States v.

Rodriguez, 770 F. App'x 18, 21–22 (3d Cir. 2019); United

States v. Camp, 903 F.3d 594, 604 (6th Cir. 2018); United

States v. O'Connor, 874 F.3d 1147, 1158 (10th Cir. 2017).

We agree with our sister circuits and hold that Hobbs Act

robbery is not a crime of violence under § 4B1.2(a). We

therefore vacate Prigan's sentence and remand this case for

resentencing.

I.

In June 2014, Prigan pleaded guilty to two counts of

Hobbs Act robbery under 18 U.S.C. § 1951. For that

conviction, the United States District Court for the Eastern

District of Washington sentenced Prigan to three years of

imprisonment and three years of supervised release. Prigan

served three years in prison and was released from physical

custody, but he remained on supervised release. Prigan's

supervised-release conditions and conviction for Hobbs Act

robbery prohibited him from possessing any firearm or

ammunition.

In June 2018, federal officers searched Prigan's

residence and vehicle. They found firearms, ammunition,

and methamphetamine. The officers arrested Prigan. A

grand jury indicted Prigan on two counts involving firearms.

Count 1 charged Prigan as a felon and unlawful user of

UNITED STATES V. PRIGAN 5

controlled substances who possessed firearms and

ammunition in violation of 18 U.S.C. §§ 922(g)(1),

922(g)(3), and 924(a)(2). Count 2 charged Prigan with

possessing an unregistered firearm in violation of 26 U.S.C.

§ 5841. Prigan pleaded guilty to both Counts in a written

plea agreement.

In November 2018, the district court held a hearing to

sentence Prigan in the 2018 firearms case. The district court

received a Presentence Investigation Report ("PSR”)

containing a Guidelines calculation. The PSR stated that

Prigan's 2014 conviction for Hobbs Act robbery constituted

a crime of violence under § 4B1.2(a). This categorization

increased Prigan's Guidelines range from forty-six to fiftyseven months of imprisonment to fifty-seven to seventy-one

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. In Prigan's view, the PSR

erred in stating that his 2014 conviction for Hobbs Act

robbery is a crime of violence under § 4B1.2(a) and

erroneously inflated Prigan's Guidelines range. The

government's counsel acknowledged Prigan's "very

thoughtful brief on the issue” and did not offer any written

response in the district court.

The district court overruled Prigan's objections to the

PSR. That is, the district court ruled that Prigan's 2014

conviction for Hobbs Act robbery is a crime of violence

under § 4B1.2(a). As a result, the district court concluded

that Prigan's Guidelines range was fifty-seven to seventyone months of imprisonment. The district court sentenced

Prigan to sixty-four months of imprisonment because the

district court thought a sentence within the Guidelines range

6 UNITED STATES V. PRIGAN

was appropriate. Prigan timely appealed his sixty-fourmonth sentence.1

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We

review de novo whether an offense is a crime of violence

under the Guidelines. See United States v. Robinson,

869 F.3d 933, 936 (9th Cir. 2017). A district court's

Guidelines-calculation error is subject to harmless-error

review. United States v. Munoz-Camarena, 631 F.3d 1028,

1030 (9th Cir. 2011) (per curiam).

III.

On appeal, Prigan argues that his 2014 conviction for

Hobbs Act robbery is not a crime of violence under

§ 4B1.2(a). We apply 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, 570 U.S. 254, 261 (2013) (citation omitted).

To apply the categorical approach, we do not look at the

facts underlying Prigan's 2014 conviction for Hobbs Act

robbery. See United States v. Velasquez-Reyes, 427 F.3d

1227, 1229 (9th Cir. 2005). We instead compare "the scope

of the conduct covered by the elements of Hobbs Act

robbery with the definitions of 'crime of violence' in []

1 The district court also sentenced Prigan to ten months of

imprisonment for violating the supervised-release conditions in the 2014

robbery case. The district court ordered those ten months of

imprisonment to run consecutively with Prigan's sixty-four-month

sentence in the 2018 firearms case. The ten-month sentence is not at

issue in this appeal.

UNITED STATES V. PRIGAN 7

§ 4B1.2(a).” Eason, 953 F.3d at 1189.2 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). See Descamps, 570 U.S.

at 261; Eason, 953 F.3d at 1189. On the other hand, if the

conduct covered by Hobbs Act robbery does not sweep more

broadly than the conduct covered by § 4B1.2(a)'s crime-ofviolence definitions, Hobbs Act robbery 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 crimeof-violence definitions. See Descamps, 570 U.S. at 261.

A.

Our categorical-approach analysis starts with the

elements of Hobbs Act robbery, which is defined as follows:

[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.

2 Neither the government nor any circuit has suggested that Hobbs

Act robbery under 18 U.S.C. § 1951(b)(1) is divisible. The modifiedcategorical approach is therefore not pertinent here. See Descamps,

570 U.S. at 258; United States v. Walton, 881 F.3d 768, 774–75 (9th Cir.

2018).

8 UNITED STATES V. PRIGAN

18 U.S.C. § 1951(b)(1) (emphasis added). The key

takeaway from § 1951(b)(1)'s text—for our purpose—is that

a person may commit Hobbs Act robbery by using force or

threatening to use force against a person or property. See

Green, 996 F.3d at 180; Bridges, 991 F.3d at 800.

On the other hand, § 4B1.2(a)'s crime-of-violence

definitions are narrower because a person commits a crime

of violence only if he or she uses force or threatens to use

force against persons. See Bridges, 991 F.3d at 800–02.

Section 4B1.2(a) defines "crime of violence” as any federal

or state offense that:

(1) has as 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).

U.S.S.G. § 4B1.2(a) (emphasis added).

We will call § 4B1.2(a)(1) the "force clause” because it

covers defendants who use force or threaten to use force

against a person. See id. § 4B1.2(a)(1). And we will call

§ 4B1.2(a)(2) the "enumerated-offenses clause” because it

covers a list of enumerated offenses that constitute a crime

of violence. See id. § 4B1.2(a)(2). The parties here agree

that robbery and extortion are the only two relevant offenses

within § 4B1.2(a)'s enumerated-offenses clause in Prigan's

case.

UNITED STATES V. PRIGAN 9

With these provisions in mind, we must determine

whether Hobbs Act robbery sweeps more broadly than

(1) § 4B1.2(a)'s force clause, (2) "robbery” under

§ 4B1.2(a)'s enumerated-offenses clause, and

(3) "extortion” under § 4B1.2(a)'s enumerated-offenses

clause. See Green, 996 F.3d at 180–84. If Hobbs Act

robbery sweeps more broadly than all three, Prigan's 2014

conviction for Hobbs Act robbery is not categorically a

crime of violence under § 4B1.2(a). See id. On the other

hand, if Hobbs Act robbery does not sweep more broadly

than any one of those three, Prigan's 2014 conviction for

Hobbs Act robbery is categorically a crime of violence under

§ 4B1.2(a). See id.

As our sister circuits have held, Hobbs Act robbery

sweeps more broadly than all three clauses. While Hobbs

Act robbery covers force or threats of force against a person

or property, § 4B1.2(a)'s force clause and the relevant

enumerated offenses—robbery and extortion—cover force

or threats of force only against persons. See, e.g., id.; Eason,

953 F.3d at 1190–96.

B.

1.

The first question is whether Hobbs Act robbery sweeps

more broadly than § 4B1.2(a)'s force clause. It does. Hobbs

Act robbery includes using force or threatening to use force

against any "person or property.” 18 U.S.C. § 1951(b)(1)

(emphasis added). Yet § 4B1.2(a)'s force clause only covers

a conviction that has "as an element the use, attempted use,

or threatened use of physical force against the person of

another.” U.S.S.G. § 4B1.2(a)(1) (emphasis added).

10 UNITED STATES V. PRIGAN

These definitions—by their express terms—show that

Hobbs Act robbery sweeps more broadly than § 4B1.2(a)'s

force clause. Eason, 953 F.3d at 1190–93. Hobbs Act

robbery covers using force or threatening to use force against

a person or property, but § 4B1.2(a)'s force clause does not

extend to force or threats of force against property. See

Green, 996 F.3d at 180–81; Eason, 953 F.3d at 1190–93; cf.

United States v. Edling, 895 F.3d 1153, 1156–57 (9th Cir.

2018) (holding that a state robbery statute functionally

identical to Hobbs Act robbery—criminalizing taking by

force or threat of force against a "person or property”—is

broader than § 4B1.2(a)'s force clause). Because Hobbs Act

robbery sweeps more broadly than § 4B1.2(a)'s force clause,

Hobbs Act robbery is not a categorical match for

§ 4B1.2(a)'s force clause. Green, 996 F.3d at 181. Prigan's

2014 conviction for Hobbs Act robbery is therefore not a

crime of violence under § 4B1.2(a)'s force clause. Id.

at 181, 184.

2.

The second question is whether Hobbs Act robbery

sweeps more broadly than § 4B1.2(a)'s enumerated offense

of robbery. Because the Guidelines do not define "robbery,”

we use the generic definition of robbery under federal law.

See Descamps, 570 U.S. at 257; Camp, 903 F.3d at 600. The

question thus becomes whether Hobbs Act robbery sweeps

more broadly than the generic definition of robbery under

federal law. See Camp, 903 F.3d at 600.

The analysis here is straightforward. As stated above,

Hobbs Act robbery covers any person who uses force or

threatens to use force against a "person or property.”

18 U.S.C. § 1951(b)(1). By contrast, generic federal robbery

is "aggravated larceny, containing at least the elements of

misappropriation of property under circumstances involving

UNITED STATES V. PRIGAN 11

immediate danger to the person.” United States v. BecerrilLopez, 541 F.3d 881, 891 (9th Cir. 2008) (citation omitted).

Our court has concluded that "generic federal robbery . . .

does not extend to threats to property.” United States v.

Bankston, 901 F.3d 1100, 1103 (9th Cir. 2018); see also

Edling, 895 F.3d at 1157 ("Generic robbery requires danger

to the person, not merely danger to property.”).

The definitions above and our precedent show that

Hobbs Act robbery sweeps more broadly than generic

federal robbery. Although Hobbs Act robbery covers

threatening to use force against a person or property, generic

federal robbery does not cover threats of force against

property. See, e.g., Eason, 953 F.3d at 1193–95. Because

Hobbs Act robbery sweeps more broadly than generic

federal robbery, Hobbs Act robbery is not categorically

"robbery” under § 4B1.2(a)'s enumerated-offenses clause.

See id. So Prigan's 2014 conviction for Hobbs Act robbery

is not "robbery” under § 4B1.2(a)'s enumerated-offenses

clause. See, e.g., Descamps, 570 U.S. at 261; Green,

996 F.3d at 181–82; Eason, 953 F.3d at 1193–95.

3.

The third question is whether Hobbs Act robbery sweeps

more broadly than § 4B1.2(a)'s enumerated offense of

extortion. Because the Guidelines define "extortion,” we use

that definition. Green, 996 F.3d at 182; Bankston, 901 F.3d

at 1103–04. The question becomes whether Hobbs Act

robbery sweeps more broadly than the Guidelines' definition

of extortion. Green, 996 F.3d at 182; Bankston, 901 F.3d

at 1103–04.

Again, the analysis is straightforward. As already

explained, Hobbs Act robbery covers any person who uses

force or threatens to use force against a "person or property.”

12 UNITED STATES V. PRIGAN

18 U.S.C. § 1951(b)(1). By contrast, the Guidelines define

extortion as "obtaining something of value from another by

the wrongful use of (A) force, (B) fear of physical injury, or

(C) threat of physical injury.” Bankston, 901 F.3d at 1103–

04 (citation omitted). Our court has construed the

Guidelines' definition of extortion to require that "the

wrongful use of force, fear, or threats be directed against the

person of another, not property.” Edling, 895 F.3d at 1157

(emphases added).

These definitions and our prior interpretations show that

Hobbs Act robbery sweeps more broadly than the

Guidelines' definition of extortion. Hobbs Act robbery

covers threatening to use force against persons or property,

but the Guidelines' definition of extortion does not extend to

threats of force against property. See Eason, 953 F.3d at

1194; Bankston, 901 F.3d at 1102–04. Because Hobbs Act

robbery sweeps more broadly than "extortion” under

§ 4B1.2(a)'s enumerated-offenses clause, Hobbs Act

robbery is not categorically "extortion” under § 4B1.2(a)'s

enumerated-offenses clause. See Eason, 953 F.3d at 1194–

95. As a result, Prigan's 2014 conviction for Hobbs Act

robbery is not "extortion” under § 4B1.2(a)'s enumeratedoffenses clause. See Descamps, 570 U.S. at 261; Green,

996 F.3d at 183–84.

* * *

In sum, Hobbs Act robbery sweeps more broadly than

(1) § 4B1.2(a)'s force clause, (2) § 4B1.2(a)'s enumerated

offense of robbery, and (3) § 4B1.2(a)'s enumerated offense

of extortion. See, e.g., Green, 996 F.3d at 184. Hobbs Act

robbery covers using force or threatening to use force against

persons or property, while § 4B1.2(a)'s crime-of-violence

definitions do not cover using force or threatening to use

force against property. Id. at 180–84. Accordingly, Prigan's

UNITED STATES V. PRIGAN 13

2014 conviction for Hobbs Act robbery is not categorically

a crime of violence under § 4B1.2(a).3 The district court

erred in ruling otherwise when calculating Prigan's

Guidelines range.

C.

Because the district court incorrectly ruled that Prigan's

2014 conviction for Hobbs Act robbery is a crime of

violence under § 4B1.2(a), the district court incorrectly

concluded that Prigan's Guidelines range for the 2018

firearms offense is fifty-seven to seventy-one months of

imprisonment. The PSR stated that Prigan's Guidelines

range would be forty-six to fifty-seven months of

imprisonment if his 2014 conviction for Hobbs Act robbery

were not considered a crime of violence. The district court's

sentence for the 2018 firearms offense—sixty-four months

of imprisonment—does not fall within Prigan's correct

Guidelines range.

The government argues that even if the district court

erred in calculating Prigan's Guidelines range, any error was

harmless. An error in calculating a criminal defendant's

3 The government points to United States v. Dominguez, 954 F.3d

1251, 1260 (9th Cir. 2020), which held that Hobbs Act robbery

constitutes a "crime of violence” under 18 U.S.C. § 924(c)(3)(A).

Dominguez is not relevant here because § 924(c)(3)(A)'s crime-ofviolence definition is different—and broader—than § 4B1.2(a)'s force

clause. Compare 18 U.S.C. § 924(c)(3)(A) (defining "crime of

violence” as a felony that "has as an element the use, attempted use, or

threatened use of physical force against the person or property of

another”) (emphasis added), with U.S.S.G. § 4B1.2(a)(1) (defining

"crime of violence” as having "as an element the use, attempted use, or

threatened use of physical force against the person of another”)

(emphasis added). Other circuits agree with this distinction. See, e.g.,

Green, 996 F.3d at 181.

14 UNITED STATES V. PRIGAN

Guidelines range is subject to harmless-error review.

Munoz-Camarena, 631 F.3d at 1030. But "[n]ormally, [a]

mistake in calculating the recommended Guidelines

sentencing range is a significant procedural error that

requires us to remand for resentencing.” United States v.

McCarns, 900 F.3d 1141, 1145 (9th Cir. 2018) (citation

omitted); see also United States v. Leal-Vega, 680 F.3d

1160, 1169–70 (9th Cir. 2012). For the district court's

calculation error to be harmless, the district court "must

explain, among other things, the reason for the extent of a

variance” from the correct Guidelines range. MunozCamarena, 631 F.3d at 1031 (citing United States v. Carty,

520 F.3d 984, 991–92 (9th Cir. 2008) (en banc)).

Here, the district court provided no explanation for

varying from what we now know to be the correct Guidelines

range of forty-six to fifty-seven months of imprisonment, let

alone for the extent of such variance. In fact, the district

court rooted its sixty-four-month sentence squarely in the

incorrect Guidelines range of fifty-seven to seventy-one

months, expressly stating it "believe[d] that a guideline

sentence is appropriate.” Nothing in the record demonstrates

that the district court would have varied upward and imposed

a sixty-four-month sentence if Prigan's "correct Guidelines

range [of forty-six to fifty-seven months of imprisonment]

was kept in mind throughout the process.” Id. (citation and

quotation marks omitted). For these reasons, the district

court did not commit a harmless error when it incorrectly

calculated Prigan's Guidelines range. See id. at 1030–31.4

4 We have provided non-exhaustive examples of harmless-error

situations in the Guidelines context. See Munoz-Camarena, 631 F.3d

at 1030 n.5. None of these circumstances, nor any similar circumstance

UNITED STATES V. PRIGAN 15

IV.

We remand this case to the district court for resentencing

on an open record. The district court must conduct a new

sentencing hearing for the 2018 firearms offense and, this

time around, may not consider Prigan's 2014 conviction for

Hobbs Act robbery a crime of violence when calculating the

Guidelines range for the 2018 firearms offense

VACATED, REVERSED, AND REMANDED.