United States of America v. Joseph Monroe United States of America v. David Copes a/k/a David Henderson-Copes

Philadelphia, PA - Criminal defense lawyer represented defendants with a Hobbs Act robbery charge.

Monroe and Copes raise two issues on appeal. First, they claim that our decision in

United States v. Robinson,

2 which applied a modified categorical approach in determining

that Hobbs Act robbery is a crime of violence, was abrogated by the Supreme Court's

* This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not

constitute binding precedent.

1 The district courts had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

2 844 F.3d 137 (3d Cir. 2016).

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decision in United States v. Davis.

3

After Davis, all cases analyzed under the elements

clause must apply the categorical approach.4 Second, defendants argue that Hobbs Act

robbery is therefore no longer a crime of violence under 18 U.S.C. § 924(c) because §

924(c)(3)(B) is unconstitutionally vague.

5 However, Hobbs Act robbery is still a crime of

violence under the "elements prong” of § 924(c) because Hobbs Act robbery satisfies §

924(c)(3)(A) using the categorical approach.

Copes and Monroe contend that their convictions under § 924(c)(3) must be vacated

because Hobbs Act robbery does not satisfy the elements clause and thus it is not a "crime

of violence.” The defendants argue that Hobbs Act robbery does not qualify as a crime of

violence because Hobbs Act robbery can be committed without the "use, attempted use, or

threatened use of physical force.”6

Hobbs Act robbery is defined, in relevant part, 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.”7 Section 924(c)(3)(A) defines a "crime of violence” as a felony

offense that "has as an element the use, attempted use, or threatened use of physical force

against the person or property of another.”

3 139 S. Ct. 2319 (2019).

4 Defendants and the government both agree that Davis effectively abrogated Robinson.

We accept for the purposes of this appeal that § 924(c)(3)(A) requires the categorical

approach.

5 Davis, 139 S. Ct. at 2336. 6 Copes Appellant Br. 16–20; Monroe Appellant Br. 19–22. 7 18 U.S.C. § 1951(b)(1).

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Copes and Monroe argue that the least culpable conduct necessary to commit Hobbs

Act robbery does not meet the 924(c)(3)(A) definition. They present various non-violent

hypotheticals as alternative means of committing Hobbs Act robbery through fear of injury

to intangible property: making a restauranteur hand over money by threatening to scream

rat in front of customers,8 making a shareholder hand over a wallet by threatening to start

a boycott of the company on social media,9 or threatening pecuniary injury.10 These

hypotheticals misconstrue the Hobbs Act robbery definition, and they misconstrue the

definition of "physical force” under Section 924(c)(3)(A).

Initially, we note that the defendants' hypotheticals do not present "more than the

application of legal imagination.”11 They do not point to any cases where courts have

applied Hobbs Act robbery in the manner hypothesized.12 Moreover, their failure to do so

is not surprising. Their hypotheticals do not constitute the type of "injury” contemplated

by the "fear of injury” included in Hobbs Act robbery. We have previously accepted

dictionary definitions of "injure” to mean "to inflict bodily hurt on” or "[t]o do harm to,

damage, or impair. To hurt or wound, as the person.”13 We have concluded that these

8 Copes Appellant Br. 18

9 Id.

10 Monroe Appellant Br. 21.

11 Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007).

12 See id. ("To show that realistic probability, an offender, of course, may show that the

statute was so applied in his own case. But he must at least point to his own case or other

cases in which the state courts in fact did apply the statute in the special (nongeneric)

manner for which he argues.”).

13 United States v. Chapman, 866 F.3d 129, 135 (3d Cir. 2017) (citing WEBSTER'S THIRD

NEW INTERNATIONAL DICTIONARY 1164 (1993) and BLACK'S LAW DICTIONARY 785

(6th ed. 1990)).

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definitions "necessarily threaten[] the use of physical force.”14 Thus, "'fear of injury'

cannot occur without at least a threat of physical force” sufficient to satisfy the elements

clause for the "crime of violence” definition.15 In addition, there is evidence that "Congress

intended the 'physical force' element to be satisfied by . . . fear of injury.”16

Copes and Monroe use the wrong definition of physical force under §

924(c)(3)(A).17 The Supreme Court has concluded that "'physical force' means violent

force—that is, force capable of causing physical pain or injury to another person.”18 When

applying the appropriate "fear of injury” definition outlined above to the correct definition

of physical force, Hobbs Act robbery is clearly a crime of violence

For the foregoing reasons, we will affirm Monroe’s and Copes’s convictions under 18

U.S.C. § 924(c)(3)(A).