United States District Court, M.D. Florida, Tampa Division
VIR0[NIA M. HERNANDEZ COVINGTON, UNITED STATES DISTRICT
matter is before the Court pursuant to Defendant Rico Remon
Washington's Motion to Dismiss Count 2 (Doc. # 17), filed
on April 2, 2018. The United States filed a Response in
Opposition to the Motion on April 17, 2018. (Doc. # 22). With
leave of Court, Defendant filed a Reply on April 24, 2018.
(Doc. # 25). The Court denies the Motion as explained below.
indictment charges that, on September 8, 2017, Defendant
committed an armed robbery at the Express Speciality Pharmacy
in Tampa, Florida. (Doc. # 1). Defendant is alleged to have
taken United States Currency as well as Xanax pills from the
owner of the pharmacy by using “actual and threatened
force, violence, and fear of injury, immediate and future, to
the owner's person.” (Id. at 2). On
December 13, 2017, the Government charged Defendant with
Hobbs Act robbery (Count 1), using, carrying, and brandishing
a firearm in furtherance of a crime of violence (Count 2),
and being a felon in possession of a firearm (Count 3), on
account of nine prior felonies, including robbery, grand
theft, attempted burglary, burglary, sale of cocaine, and
fleeing and eluding a law enforcement officer, among others.
(Doc. # 1). At this juncture, Defendant seeks dismissal of
Count 2 of the indictment, arguing: “Count 2 fails to
state an offense because Hobbs Act robbery is not a crime of
violence as a matter of law.” (Doc. # 17 at 1).
924(c) makes it a crime: (1) to carry or use a firearm during
and in relation to a drug trafficking crime or crime of
violence, or (2) to possess a firearm in furtherance of a
drug trafficking crime or crime of violence. The statute
defines “crime of violence” as any felony that:
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
(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. § 924(c)(3). The first clause is customarily
referred to as the “use-of-force” clause and the
second clause is often referred to as the “residual
clause” or “risk-of-force” clause. See
In re Saint Fleur, 824 F.3d 1337, 1339 (11th Cir. 2016);
United States v. Wiles, No. 17-12671, 2018 WL
2017905 (11th Cir. Apr. 30, 2018). Defendant challenges both
relevant clauses of the statute.
Hobbs Act Robbery is a Crime of Violence
line of Eleventh Circuit cases hold Hobbs Act Robbery is a
crime of violence. Defendant concedes that “the
Eleventh Circuit has held contrary to Mr. Washington's
position on this issue.” (Doc. # 17 at 5). Indeed, in
United States v. St. Hubert, 883 F.3d 1319,
1328 (11th Cir. 2018), the court decisively held:
“Hobbs Act robbery . . . independently qualifies as a
crime of violence under § 924(c)(3)(A)'s
use-of-force clause.” And, in Saint Fleur, the
court further explained:
Saint Fleur pled guilty to Count 4, which charged that Saint
Fleur did affect commerce “by means of robbery, ”
as the term robbery is defined in 18 U.S.C. §
1951(b)(1). “The term ‘robbery' means 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. .
.” Id. § 1951(b)(1). Count 4 further
charged Saint Fleur with, and Saint Fleur pled guilty to,
committing robbery “by means of actual and threatened
force, violence, and fear of injury.” Thus, the
elements of Saint Fleur's § 1951 robbery, as
replicated in the indictment, require the use, attempted use,
or threatened use of physical force “against the person
or property of another.” See Id.; 18
U.S.C. § 924(c)(3)(A).
Saint Fleur, 824 F.3d at 1341 (emphasis added).
Similarly, as recently as April 30, 2018, the Eleventh
Circuit repeated its pronouncement that “Hobbs Act
robbery qualifies as a crime of violence under the
use-of-force clause in § 924(c)(3)(A).”
Wiles, 2018 WL 2017905, at *1. The Court accordingly
roundly rejects Defendant's contention that Hobbs Act
Robbery does not qualify as a crime of violence under the
use-of-force clause in § 924(c)(3)(A).
The Residual Clause has not been
also asserts that residual clause § 924(c)(3)(B) has
been invalidated by Supreme Court precedent. In the Motion to
Dismiss, Defendant correctly states that Johnson v.
United States, 135 S.Ct. 2551 (2015), found the residual
clause of the Armed Career Criminal Act to be
unconstitutionally vague. Defendant also points out that the
United States Supreme Court struck down a residual clause in
18 U.S.C. ...