from the United States District Court for the District of
Kansas (D.C. No. 2:15-CR-20079-JAR-1)
Magariel, Assistant Federal Public Defender (Melody Brannon,
Federal Public Defender with him on the brief), Office of the
Federal Public Defender, Kansas City, Kansas, appearing for
S. Maag, Assistant United States Attorney (Thomas E. Beall,
United States Attorney, with him on the brief), Office of the
United States Attorney, Topeka Kansas, appearing for
BRISCOE, EBEL, and MATHESON, Circuit Judges.
MATHESON, Circuit Judge.
O'Connor pled guilty to violating 18 U.S.C. §
922(g)(1), which bars felons from possessing firearms. The
Government argued Mr. O'Connor's sentence should be
enhanced under § 2K2.1(a)(4)(A) of the United States
Sentencing Guidelines ("U.S.S.G." or "the
Guidelines") because he had a prior felony conviction
for robbery under the Hobbs Act, 18 U.S.C. § 1951-a
"crime of violence." See U.S.S.G. §
2K2.1(a)(4)(A). The district court agreed and sentenced Mr.
O'Connor to 32 months in prison.
appeal, Mr. O'Connor argues his prior conviction for
Hobbs Act robbery is not a "crime of violence"
under the Guidelines. We agree. Exercising jurisdiction under
18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we vacate
his sentence and remand for resentencing.
O'Connor pled guilty to being a felon in possession of a
firearm, a violation of 18 U.S.C. § 922(g)(1), without
the benefit of a plea agreement. The Presentence
Investigation Report ("PSR") determined Mr.
O'Connor's base offense level was 20 based on
U.S.S.G. § 2K2.1(a)(4)(A), which applies when a
defendant's instant offense is preceded by one felony
conviction for a "crime of violence."
said Mr. O'Connor had sustained two felony convictions
(1) Aiding and abetting in the interference of commerce by
means of robbery, see 18 U.S.C. §§ 2(a),
(2) Aiding and abetting in the brandishing of a firearm
during and in relation to a crime of violence, see
18 U.S.C. §§ 2, 924(c)(1)(A)(ii).
statute underlying his first conviction-18 U.S.C. §
1951-is known as the "Hobbs Act."
O'Connor argued neither conviction triggered §
2K2.1(a)(4)(A) and that his base offense level, as prescribed
by § 2K2.1(a)(6), should be 14-not 20. The Government
responded that the PSR had correctly determined his base
offense level. It argued his conviction for aiding and
abetting a Hobbs Act robbery was a "crime of violence,
" but it did not address his other prior conviction for
brandishing a firearm.
district court concluded that Hobbs Act robbery was a crime
of violence under § 2K2.1(a)(4)(A), and Mr.
O'Connor's base offense level was thus 20. Adjusted
for a three-point reduction for acceptance of responsibility,
see U.S.S.G. §§ 3E1.1(a), (b), his total
offense level was 17. Coupled with a criminal history
category of III, Mr. O'Connor's Guidelines range was
30 to 37 months in prison. The court sentenced him to 32
months in prison, followed by a three-year term of supervised
release. Like the Government, the court did not address his
O'Connor filed a timely notice of appeal. See
Fed. R. App. P. 4(b)(1)(A)(i).
first recognize our standard of review and then address
relevant legal background explaining how courts determine
whether a defendant's past convictions may enhance a
sentence under the Guidelines. Applying the law to Mr.
O'Connor's conviction for Hobbs Act robbery under
§ 1951(b)(1), we conclude it is not a qualifying
"crime of violence" Guidelines offense and remand
Standard of Review
a prior conviction qualifies as a 'crime of violence'
under the Guidelines is a legal question that we examine de
novo." United States v. Thomas, 643 F.3d 802,
804 (10th Cir. 2011) (quotations omitted).
section, we discuss (1) the relevant Guidelines provisions,
(2) Mr. O'Connor's prior conviction under the Hobbs
Act, and (3) the categorical approach courts use to determine
whether a prior conviction constitutes a predicate offense
warranting an enhanced sentencing range.
Base offense level
2K2.1 specifies a base offense level of 20 for a
felon-in-possession conviction if "the defendant
committed any part of the instant offense subsequent to
sustaining one felony conviction of either a crime of
violence or a controlled substance offense." U.S.S.G.
§ 2K2.1(a)(4)(A). This case does not involve a
controlled substance offense, so only "crime of
violence" is relevant here.
"Crime of Violence" definition
conviction can qualify as a "crime of violence" in
two ways. First, it might be one or more of the
"enumerated offenses" listed in U.S.S.G. §
4B1.2(a)(2) (the "enumerated offense
clause"). The two enumerated offenses relevant here
are robbery and extortion. Although Mr. O'Connor's
underlying conviction was for Hobbs Act robbery, we
nevertheless must determine whether the conviction could fall
within any of the enumerated offenses. See
United States v. Castillo, 811 F.3d 342, 346 (10th Cir.
2015). Because the Government contends Hobbs Act robbery fits
categorically within the enumerated offenses of robbery or
extortion, we address both of these offenses below. Second, a
conviction might be a "crime of violence" if it
"has as an element the use, attempted use, or threatened
use of physical force against the person of another, "
see id. at § 4B1.2(a)(1) (the "force
clause" or "elements clause").
Guidelines commentary defines some of the enumerated
offenses, but not all. "Robbery, " for instance, is
undefined. But Guidelines Amendment 798, effective August 1,
2016, defines "extortion" to mean "obtaining
something of value from another by the wrongful use of (i)
force, (ii) fear of physical injury, or (iii) threat of
physical injury." See U.S.S.G. Supp. to App. C,
Amend. 798 at 131 (Nov. 1, 2016) ("Amendment
798"). We refer to this as "Guidelines
extortion" to distinguish it from the "generic
extortion" definition courts used before Amendment 798.
The Hobbs Act
Hobbs Act provides:
Whoever in any way or degree obstructs, delays, or affects
commerce or the movement of any article or commodity in
commerce, by robbery or extortion or attempts or
conspires so to do, or commits or threatens physical violence
to any person or property in furtherance of a plan or purpose
to do anything in violation of this section shall be fined
under this title or imprisoned not more than twenty years, or
18 U.S.C. § 1951(a) (emphasis added). One can thus
violate the Hobbs Act by committing either robbery
or extortion. Id.
O'Connor was convicted of Hobbs Act robbery, not Hobbs
Act extortion. The Hobbs Act defines "robbery" 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, 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
Id. § 1951(b)(1) (emphasis added). One can thus
commit Hobbs Act robbery by means of actual or threatened
force to another's person or property.