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United States v. O'Connor

United States Court of Appeals, Tenth Circuit

October 30, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
DARNELL SHARON O'CONNOR, Defendant-Appellant.

         Appeal from the United States District Court for the District of Kansas (D.C. No. 2:15-CR-20079-JAR-1)

          David 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 Appellant.

          Jared 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 Appellee.

          Before BRISCOE, EBEL, and MATHESON, Circuit Judges.

          MATHESON, Circuit Judge.

         Darnell 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.

         On 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.

         I. BACKGROUND

         Mr. 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."[1]

         The PSR said Mr. O'Connor had sustained two felony convictions for:

(1) Aiding and abetting in the interference of commerce by means of robbery, see 18 U.S.C. §§ 2(a), 1951(b)(1); and
(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).

         The statute underlying his first conviction-18 U.S.C. § 1951-is known as the "Hobbs Act."[2]

         Mr. 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.

         The 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 brandishing conviction.

         Mr. O'Connor filed a timely notice of appeal. See Fed. R. App. P. 4(b)(1)(A)(i).


         We 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 for resentencing.

         A. Standard of Review

         "Whether 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).

         B. Legal Background

         In this 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.

         1. The Guidelines

         a. Base offense level

         Section 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.

         b. "Crime of Violence" definition

         A 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").[3] 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").[4]

         The 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").[5] We refer to this as "Guidelines extortion" to distinguish it from the "generic extortion" definition courts used before Amendment 798.

         2. The Hobbs Act

         The 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 both.

18 U.S.C. § 1951(a) (emphasis added). One can thus violate the Hobbs Act by committing either robbery or extortion. Id.

         Mr. 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 obtaining.

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. Id.

         3. The ...

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