Crowder v. United States

Background

Andra Lamont Crowder and a codefendant were charged in a six-count indictment arising from a home invasion and abduction intended to obtain ransom. Crowder pleaded guilty to attempted Hobbs Act robbery under 18 U.S.C. § 1951(a) and brandishing a firearm during an attempted robbery under 18 U.S.C. § 924(c). He received a 161-month prison sentence: 77 months for the attempted robbery and a consecutive 84 months for the firearm offense. The court also imposed concurrent and consecutive supervised-release terms, including five years for the firearm offense.

Crowder was released from prison in January 2018 and was serving supervised release when he filed a motion under 28 U.S.C. § 2255. His motion challenged the firearm conviction in light of Johnson v. United States and the Supreme Court’s later decision in United States v. Davis. Davis held that § 924(c)(3)(B), known as the residual clause, was unconstitutionally vague. Crowder argued that his attempted Hobbs Act robbery conviction could not serve as the required crime-of-violence predicate for the firearm conviction.

Legal question and arguments

Under § 924(c), a crime of violence includes a felony that has as an element the use, attempted use, or threatened use of physical force against another person or property. Courts apply the categorical approach, which examines the elements and minimum conduct required for conviction rather than the particular facts of the defendant’s offense.

Crowder argued that attempted Hobbs Act robbery can be committed without actually using or threatening force. He suggested that a defendant could take a substantial step toward a robbery through nonviolent conduct, such as scouting the location, without intending or attempting to use force.

Court’s reasoning

The court concluded that completed Hobbs Act robbery qualifies as a crime of violence under § 924(c)’s force clause and that attempted Hobbs Act robbery also qualifies. Hobbs Act robbery involves taking or obtaining property by actual or threatened force, violence, or fear of injury. The court reasoned that an attempt requires a substantial step directed toward the particular offense, not merely any act related to preparation. For attempted Hobbs Act robbery, conduct sufficient to constitute a substantial step must be planned clearly to culminate in a robbery.

The court therefore concluded that, even if every act in an attempted violent offense is not itself violent, conduct meeting the substantial-step requirement for attempted Hobbs Act robbery constitutes an attempted or threatened use of force under the force clause. Davis did not change that conclusion because Davis involved conspiracy to commit Hobbs Act robbery, while Crowder’s conviction involved attempted Hobbs Act robbery.

Disposition

The court held that attempted Hobbs Act robbery is a crime of violence under § 924(c)(3)(A). It therefore held that brandishing a firearm during that offense violated § 924(c)(1)(A). The court denied Crowder’s motion to vacate his conviction.

Because the issue was unsettled and the Second Circuit had not yet addressed it, the court authorized issuance of a certificate of appealability.