United States v. Eric Scott ( 2021 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 20-1514
_____________
UNITED STATES OF AMERICA
v.
ERIC SCOTT,
Appellant
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-19-cr-00565-001)
District Judge: Hon. Mitchell S. Goldberg
_______________
Argued January 13, 2021
Before: AMBRO, KRAUSE, and PHIPPS, Circuit Judges.
(Filed: September 22, 2021)
_______________
Christy Martin
Brett G. Sweitzer [ARGUED]
Federal Community Defender Office for the Eastern District
of Pennsylvania
601 Walnut Street
The Curtis Center – Suite 540 West
Philadelphia, PA 19106
Counsel for Appellant
Jason Bologna
Robert A. Zauzmer [ARGUED]
Office of United States Attorney
615 Chestnut Street – Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
KRAUSE, Circuit Judge.
This appeal requires us to decide whether Hobbs Act
robbery is a “crime of violence” under the career offender
provision of the United States Sentencing Guidelines.
U.S.S.G. § 4B1.2(a). To answer that question, we must apply
the oft-bedeviling categorical approach and compare the
statutory offense with the definition of “crime of violence”
found in the Guidelines. We now hold, along with every Court
of Appeals to address the issue, that Hobbs Act robbery sweeps
more broadly than the career offender guideline and therefore
does not qualify as a crime of violence. Given both the text of
the Guidelines and the consensus of the Courts of Appeals, we
also conclude that—at least as of the disposition of this
appeal—the error qualifies as plain. We will vacate Appellant
Eric Scott’s sentence and remand for resentencing.
I. Factual and Procedural Background
In February 2020, Scott was sentenced for possessing a
firearm as a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1). In anticipation of sentencing, the United States
Probation Office prepared a Presentence Report (PSR) that
included a career offender enhancement under U.S.S.G.
§ 2K2.1(a)(2), which applies if a defendant “committed any
part of the instant offense subsequent to sustaining at least two
felony convictions of either a crime of violence or a controlled
substance offense.” Here, two prior convictions formed the
basis for that enhancement: a 2019 conviction for possession
of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1),
and a 2019 conviction for Hobbs Act robbery in violation of 18
U.S.C. § 1951(b)(1) and for using and carrying a firearm
during and in relation to a crime of violence in violation of 18
U.S.C. § 924(c). The PSR assigned an enhanced base offense
level of 24 pursuant to U.S.S.G. § 2K2.1(a)(2). The proposed
2
total offense level carried with it an advisory guideline range
of 84–105 months in prison.
Of relevance to this appeal, neither Scott nor the
Government challenged the enhancement or any of the
calculations in the PSR before the sentencing court. Instead,
Scott sought a sentence of 84 months—the bottom of the
Guidelines range—to run concurrently with a previously
imposed 70-month sentence, and the Government disagreed
only in that it sought a term consecutive to the other federal
sentence. The District Court adopted the PSR’s conclusions
and sentenced Scott to 90 months’ imprisonment consecutive
to the existing sentence, three years of supervised release, and
a $100 special assessment.
On appeal, Scott argues that it was reversible error to
sentence him as a career offender because Hobbs Act robbery
is not a “crime of violence” as defined in the federal Sentencing
Guidelines. We now turn to that question.
II. Discussion
The District Court exercised jurisdiction under 18
U.S.C. § 3231, and we have jurisdiction under 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a), as this case presents an appeal
of a sentence imposed under the Sentencing Reform Act of
1984. Whether an offense qualifies as a crime of violence
under the Sentencing Guidelines is a legal question that this
Court typically reviews de novo. United States v. Henderson,
841 F.3d 623, 626 (3d Cir. 2016). Because Scott raises this
issue for the first time on appeal, however, we review it for
plain error. United States v. Couch, 291 F.3d 251, 252–53 (3d
Cir. 2002). We must decide, in other words, whether (1) the
conclusion that Hobbs Act robbery constitutes a crime of
violence was error and, if so, whether the error (2) is “plain,”
(3) “affect[s] substantial rights,” and (4) “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.”
United States v. Olano, 507 U.S. 725, 732–36 (1993)
(alterations in original) (citations omitted); Fed. R. Crim. P.
52(b). Scott has the burden of demonstrating each. Olano, 507
U.S. at 734–35.
3
We address whether it was error to deem Hobbs Act
robbery a crime of violence under U.S.S.G. § 2K2.1(a)(2), and
because we conclude that it was, we then consider whether the
remaining Olano factors are met. Id. at 734.
A. Hobbs Act Robbery is Not a Crime of Violence
Under the Guidelines
We begin by applying the now-familiar categorical
approach to determine whether Scott’s Hobbs Act robbery
conviction qualifies as a predicate “crime of violence” for the
purposes of a career offender enhancement. Notwithstanding
the bizarre results it sometimes produces, this analytical
framework compels us to look “not to the facts of the particular
prior case,” but to the statutory definition of the crime of
conviction. Moncrieffe v. Holder, 569 U.S. 184, 190 (2013)
(internal quotation marks omitted). We compare the scope of
the conduct covered by the elements of Hobbs Act robbery
with the definitions of “crime of violence” found in the
Sentencing Guidelines to determine “if the statute’s elements
are the same as, or narrower than, those of the generic offense.”
Descamps v. United States, 570 U.S. 254, 257 (2013). But if
“the least culpable conduct hypothetically necessary to sustain
a conviction under the [Hobbs Act],” United States v. Dahl,
833 F.3d 345, 350 (3d Cir. 2016) (citation omitted), would not
be a crime of violence under the Guidelines, then any
“conviction under that law cannot count as a[] [‘crime of
violence’] predicate,” Descamps, 570 U.S. at 261. Under the
categorical approach, “a prior crime [will] qualify as a
predicate offense in all cases or in none.” Id. at 268.
Under the Sentencing Guidelines, a statutory offense
can qualify as a “crime of violence” under Section 4B1.2(a)(1),
which encompasses statutes having “as an element the use,
attempted use, or threatened use of physical force against the
person of another” (the “Elements Clause”), or Section
4B1.2(a)(2), which lists particular offenses deemed “crimes of
violence” for Guidelines purposes (the “Enumerated Offenses
Clause”). Hobbs Act robbery satisfies neither.
A plain reading of the text demonstrates that the
definition of “crime of violence” in the Guidelines covers the
use of force or threats of force only against persons, see
4
U.S.S.G. § 4B1.2(a), so there can be no categorical match with
Hobbs Act robbery, which by its terms includes crimes against
property, see 18 U.S.C. § 1951(b)(1). In so holding, we join
the chorus of voices concluding that Hobbs Act robbery is not
categorically a crime of violence under the Guidelines.1 See
United States v. Prigan, — F.4th —, No. 18-30238, 2021 WL
3612176, at *3–5 (9th Cir. Aug. 16, 2021); United States v.
Green, 996 F.3d 176, 181 (4th Cir. 2021); Bridges v. United
States, 991 F.3d 793, 801 (7th Cir. 2021); United States v.
Eason, 953 F.3d 1184, 1189–93 (11th Cir. 2020); United States
v. Camp, 903 F.3d 594, 600–04 (6th Cir. 2018), cert. denied,
— U.S. —, 139 S. Ct. 845 (2019); United States v. O’Connor,
874 F.3d 1147, 1153–58 (10th Cir. 2017); see also United
States v. Edling, 895 F.3d 1153, 1157–58 (9th Cir. 2018)
(reaching the same conclusion when analyzing a state statute
identical to Hobbs Act robbery in all relevant respects).
1. Hobbs Act Robbery Does Not Satisfy the Elements
Clause
We need not tarry long over the Elements Clause. That
clause defines crimes of violence as those offenses that have
“as an element the use, attempted use, or threatened use of
physical force against the person of another.” U.S.S.G.
§ 4B1.2(a)(1). Hobbs Act robbery, on the other hand, means
“the unlawful taking from the person of another . . . by means
of actual or threatened force, or violence, or fear of injury,
immediate or future, to his person or property.” 18 U.S.C.
§ 1951(b)(1). Because the Elements Clause restricts the object
1
In contrast to the Guidelines, a “crime of violence”
under 18 U.S.C. § 924(c)(3)(A) does posit force “against the
person or property of another.” Thus, Hobbs Act robbery is a
categorical match with the elements of § 924(c)(3)(A) as we
recently recognized in United States v. Walker, 990 F.3d 316,
324–25 (3d Cir. 2021); see also United States v. O’Connor,
874 F.3d 1147, 1158 (10th Cir. 2017) (“There is nothing
incongruous about holding that Hobbs Act robbery is a crime
of violence for purposes of 18 U.S.C. § 924(c)(3)(A), which
includes force against a person or property, but not for
purposes of U.S.S.G. 4B1.2(a)(1), which is limited to force
against a person.”).
5
of the use of force to “the person of another,” whereas Hobbs
Act robbery extends to the use of force against the “person or
property” of another, even the Government concedes the
elements are not a categorical match.
2. Hobbs Act Robbery Also Sweeps More Broadly
than Robbery Under the Enumerated Offenses
Clause
To ascertain if a felony qualifies as a crime of violence
under the Enumerated Offenses Clause, we disregard the label
on the offense and “‘look to whether the conduct necessarily
proven as a prerequisite’ for the defendant’s conviction under
the statute is ‘a natural equivalent to the offense as envisioned
by the Guidelines’ drafters.’” Eason, 953 F.3d at 1193
(citation omitted). The Government points to “robbery” as one
natural equivalent among the enumerated offenses. Again,
however, it is not a categorical match for the simple reason that
Hobbs Act robbery reaches force against property, while
guidelines robbery does not.
Because the Guidelines do not define “robbery,” we
revert to its generic meaning, see United States v. Graves, 877
F.3d 494, 501–02 (3d Cir. 2017), which is “the taking of
property from another person or from the immediate presence
of another person by force or by intimidation,” United States
v. McCants, 952 F.3d 416, 428–29 (3d Cir. 2020). Although
the taking itself requires “no more than de minimis force,” we
have previously recognized that such use of force necessarily
“implies personal violence.” Graves, 877 F.3d at 502–03; see
also Camp, 903 F.3d at 601–02; O’Connor, 874 F.3d at 1155.
Hobbs Act robbery differs in that it also reaches conduct
directed at property that “do[es] not necessarily create a danger
to the person.” Camp, 903 F.3d at 602 (emphasis omitted).2
2
Although the inclusion of injury to property in Hobbs
Act robbery is itself sufficient to preclude a categorical match
with guidelines robbery, we note that Hobbs Act robbery is
also broader than generic robbery in that it permits conviction
based on force, “immediate or future,” to a person or
property, 18 U.S.C. § 1951(b)(1) (emphasis added), while
6
3. The Government Cannot Avoid the Plain Language
of the Guidelines
In an attempt to circumvent the plain language of the
Guidelines, the Government offers up a creative but ultimately
unsuccessful argument. It contends that we can combine our
consideration of different enumerated offenses for purposes of
a categorical analysis, and that, if we do, a combination of the
conduct covered by guidelines robbery and extortion produces
a categorical match with Hobbs Act robbery.
We agree with the Government that we may consider a
combination of enumerated offenses. The Guidelines define
“crime of violence” as “any [of the enumerated] offense[s]
under federal or state law,” U.S.S.G. § 4B1.2(a) (emphasis
added), and our sister circuits agree that “nothing in the
Guidelines or related authorities suggests a court is limited to
considering only a single corresponding crime of violence
when evaluating a state statute under the categorical
framework.” United States v. Castillo, 811 F.3d 342, 347 (10th
Cir. 2015), superseded by regulation on other grounds as
recognized in O’Connor, 874 F.3d at 1152.3 A combination of
guidelines robbery and extortion, however, does not salvage
the Government’s case. We already know that guidelines
robbery does not reach force against property. See supra
Section II.A.2. But neither does guidelines extortion.
The Guidelines define extortion as “obtaining
something of value from another by the wrongful use of (A)
guidelines robbery is limited to immediate danger to the
victim. See Camp, 903 F.3d at 601–02.
3
See, e.g., United States v. Becerril-Lopez, 541 F.3d
881, 891–92 (9th Cir. 2008) (reasoning that if state conviction
is a categorical match to a combination of Guidelines-
described robbery and extortion, it is a crime of violence),
superseded by regulation on other grounds as recognized in
United States v. Bankston, 901 F.3d 1100, 1104 (9th Cir.
2018); Eason, 953 F.3d at 1193 (“Both circuits that have
addressed this issue—the Sixth and the Tenth—have held that
Hobbs Act robbery does not satisfy either enumerated offense
or some combination of both offenses. . . . We agree with
them.”).
7
force, (B) fear of physical injury, or (C) threat of physical
injury.” U.S.S.G. § 4B1.2. The Government points to the fact
that guidelines extortion is defined to include “fear . . . or threat
of physical injury,” and argues—focusing on the word
“physical” alone—that extortion is capacious enough to reach
injury to property. But “[t]he definition of words in isolation
. . . is not necessarily controlling in statutory construction.”
Dolan v. U.S.P.S., 546 U.S. 481, 486 (2006).4 To the contrary,
the Supreme Court has cautioned against “attempt[ing] to
break down [a] term into its constituent words,” for doing so
“is not apt to illuminate its meaning.” Sullivan v. Stroop, 496
U.S. 478, 483 (1990).
The most natural reading of “physical injury” is as a
single term that excludes harm to property. That is because
“physical” operates as an adjective, modifying the word
“injury,” and together they connote “bodily injury,” meaning
“[p]hysical damage to a person’s body.” Physical Injury,
Black’s Law Dictionary (11th ed. 2019); id. (Bodily Injury).
Were there any doubt, that is the way “physical injury” is used
consistently throughout the Guidelines, see, e.g., U.S.S.G.
§ 5K2.2,5 and we read “identical words used in different parts
of the same act . . . to have the same meaning,”6 Atl. Cleaners
4
The same “[b]asic tenets of statutory construction,”
including the use of canons of construction, apply when
interpreting the Sentencing Guidelines. See United States v.
Grier, 585 F.3d 138, 143 (3d Cir. 2009) (citing United States
v. Milan, 304 F.3d 273, 294 (3d Cir. 2002)).
5
See also, e.g., U.S.S.G. § 2J1.2(b)(1)(B); § 5K2.12;
§ 2B1.1 cmt. background; § 5K2.0 cmt. n.3(B)(ii);
§ 2J1.3(b)(1).
6
When parsing the different types of injury to persons,
the Guidelines sometimes use the term “bodily injury” to
contrast “psychological injury,” U.S.S.G. §§ 2N1.1 cmt. n.1,
2Q1.2 cmt. n.9(B); “reputation[al]” injury, id. § 2B3.3 cmt.
background; or “personal injury,” id. § 5K2.1. See generally
Physical Injury, Black’s Law Dictionary (11th ed. 2019); Id.
(Bodily Injury). To the extent the Government relies on the
appearance of this term to argue physical injury must have a
different meaning, encompassing harm to property, it does
not account for the comparative context in which “bodily
8
& Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932).
Given that consistent usage, the Court cannot escape the
maxim that “[a] term appearing in several places in a statutory
text is generally read the same way each time it appears.”
Ratzlaf v. United States, 510 U.S. 135, 143 (1994).
In contrast, when the Sentencing Commission refers to
injury to property, it does so using the terms “damage,” “loss,”
or “destruction.” See, e.g., id. at §§ 5K2.5 (referring to
“property damage or loss”); 2C1.1(c)(3) (referring to “property
destruction”); see also supra n.5. So when the Commission
defined guidelines extortion using the term “physical injury,”
we must assume it did so deliberately and consistently with its
usage in surrounding provisions because “differences in
language . . . convey differences in meaning.” Henson v.
Santander Consumer USA Inc., 137 S. Ct. 1718, 1723 (2017)
(citation omitted).
In short, the complexity of the Government’s argument
cannot obscure the simplicity of the categorical mismatch
before us: whether we compare it to guidelines robbery or
guidelines extortion, Hobbs Act robbery sweeps more broadly
by including force against property, not just persons. We thus
join every Circuit to have considered this question in
concluding that Hobbs Act robbery is not a “crime of violence”
under the Guidelines.
B. The Error Is Plain
Because Hobbs Act robbery is not a crime of violence,
it was error to count it as a predicate offense for Scott’s career
offender enhancement. See U.S.S.G. § 2K2.1(a)(2). All that
remains, then, is to decide if the outstanding Olano factors are
met, i.e., if the error is plain, if it affects the defendant’s
“substantial rights,” and, if so, whether leaving it uncorrected
would “seriously affect[] the fairness, integrity or public
reputation of judicial proceedings.” Olano, 507 U.S. at 733–
36 (citations omitted). Each of these prongs is satisfied here
by the application of the career offender enhancement.
injury” is used, or the equivalence of “physical injury” and
“bodily injury” elsewhere throughout the Guidelines.
9
An error is “plain” where it is “clear” or “obvious,”
Olano, 507 U.S. at 734, and it need not be clear or obvious
under a “perfectly analogous case,” Irvin, 369 F.3d at 290, or
even under the case law of the circuit, especially where, as
here, the error is one of textual interpretation, see United States
v. Cole, 567 F.3d 110, 117 (3d Cir. 2009). As we have
previously observed, “the lack of [in-circuit] case law on th[e]
specific question does not doom [a finding of plain error],”
United States v. Husmann, 765 F.3d 169, 177 (3d Cir. 2014),
where there are out-of-circuit “decision[s] . . . sufficiently on-
point,” Irvin, 369 F.3d at 292. It is sufficient that the “great
weight of [persuasive] authority” supports a contrary result,
Cole, 567 F.3d at 118, and that threshold is met so long as “the
Courts of Appeals that have addressed the question have
uniformly held” it so, United States v. Benjamin, 711 F.3d 371,
379 (3d Cir. 2013); see also Cole, 567 F.3d at 118.
Such is the case here. Of the six Courts of Appeals to
consider the Guidelines enhancement, every one has reviewed
the language of the Guidelines and the text of the Hobbs Act
and has held that its application to the robbery offense is error.7
See Prigan, — F.4th —, 2021 WL 3612176, at *1 (Hobbs Act
robbery); Green, 996 F.3d at 184 (same); Bridges, 991 F.3d at
802 (same); Eason, 953 F.3d at 1195 (same); Camp, 903 F.3d
at 604 (same); cf. Edling, 895 F.3d at 1157 (equivalent state
robbery statute); O’Connor, 874 F.3d 1147 (reaching the same
conclusion regarding Hobbs Act robbery under the rule of
lenity).
Of course, we in no way fault the District Court for
failing to appreciate the significance of this unanimity. Indeed,
it could not have done so, for four of the six decisions post-
dated Scott’s sentencing. But “plain-error review is not a
grading system for trial judges. It has broader purposes,
including . . . allowing courts of appeals better to identify those
7
Four of those courts relied on a non-precedential
opinion of our Court, United States v. Rodriguez, 770 F.
App’x 18, 21–22 (3d Cir. 2019), agreeing with its reasoning
and conclusion. See Prigan, — F.4th —, 2021 WL 3612176,
at *1;. Green, 996 F.3d at 179; Bridges, 991 F.3d at 800;
Eason, 953 F.3d at 1193 n.6. Today, we too endorse that
reasoning precedentially.
10
instances in which the application of a new rule of law to cases
on appeal will meet the demands of fairness and judicial
integrity.” Henderson, 568 U.S. at 278 (citing Johnson v.
United State, 520 U.S. 461, 467–68 (1997); Olano, 507 U.S. at
732). With that focus on fairness and judicial integrity in
correcting errors on appeal, we assess whether “an error [is]
‘plain’ at the time of appellate consideration,” Johnson, 520
U.S. at 468, regardless of the state of the law at the time of the
district court’s disposition.
Because our inquiry is simply whether the “error [is]
plain ‘under current law,’” id. at 467 (emphasis added), a
district court’s ruling may be reasonable or even correct under
the law at the time of its decision, yet it can become “error,”
and error that is “plain,” as a result of intervening authority, id.
at 468. That authority may emanate from the Supreme Court
or from a consensus among the Circuits. That is because, as
the Supreme Court made explicit, the Courts of Appeals, not
just the Supreme Court, “clarify the law through their
opinions,” and whether such a clarification renders an earlier
district court decision to the contrary “plainly erroneous” is a
“matter[] of degree, not kind.” Henderson, 568 U.S. at 278.
Here we have not merely consensus, but complete
unanimity, as might be expected after each and every one of
those Circuits has plodded through the requisite categorical
analysis8 concluding that the plain language of the Guidelines
8
To be sure, the categorical approach as an analytical
tool may be anything but plain in the colloquial sense. But
we are tasked with assessing “plain error” as a legal term of
art, guided by our precedent. See Husmann, 765 F.3d at 177.
Under that precedent, the categorical approach itself does not
foreclose plain error. To the contrary, the Supreme Court has
cautioned “that a ‘per se approach to plain-error review is
flawed.’” Puckett v. United States, 556 U.S. 129, 142 (2009)
(citation omitted). And for that reason, this Court and other
Courts of Appeals have often found plain error in a district
court’s application of the categorical approach,
notwithstanding the explication necessary for that analysis.
See, e.g., United States v. Dahl, 833 F.3d 345, 357–58 (3d
Cir. 2016); United States v. Titties, 852 F.3d 1257, 1275 (10th
11
precludes Hobbs Act robbery from qualifying as a crime of
violence under U.S.S.G. § 4B1.2(a). Nor is this unanimity
surprising given “[t]hat [the] error was clear in light of the plain
language of the relevant Guidelines provision” itself. United
States v. Stinson, 734 F.3d 180, 187 (3d Cir. 2013); see supra
Section II.A.2.i. And “[c]oupled with the relative clarity of the
Sentencing Guidelines,” this consensus is sufficient “to satisfy
the requirement that error be ‘plain.’” Irvin, 369 F.3d at 292;
accord Cole, 567 F.3d at 117 (determining that the unanimous
decisions of four Circuits interpreting the same text rendered
error plain).
To establish this error affected his substantial rights,
Scott must show it “prejudic[ed] [him],” and “affected the
outcome of the district court proceedings.” Olano, 507 U.S. at
734. The Government concedes it did: Without the crime of
violence enhancement, Scott’s base offense level was 20, with
a range of 57 to 71 months’ imprisonment, but with it, his
offense level became 24, producing a range of 84 to 105
months—and, in fact, he was sentenced to 90 months’
imprisonment. Because there is no doubt that, “but for the
claimed error, ‘the result of the proceeding would have been
different,’” Scott has met his burden of “[d]emonstrating ‘a
prejudicial effect on the outcome of [his] judicial proceeding.’”
United States v. Payano, 930 F.3d 186, 192 (3d Cir. 2019)
(citation omitted).
At the final prong of Olano, we need not correct this
error unless it “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.” Olano, 507 U.S. at
736 (alteration in original). But, again, Scott has carried his
burden. In Rosales-Mireles v. United States, the Supreme
Court explained that, “[i]n the context of a plain Guidelines
error that affects substantial rights, that diminished view of
[judicial] proceedings ordinarily will satisfy Olano’s fourth
prong,” for “what reasonable citizen wouldn’t bear a rightly
diminished view of the judicial process and its integrity if
courts refused to correct obvious errors of their own devise that
threaten to require individuals to linger longer in federal prison
than the law demands?” 138 S. Ct. 1897, 1908 (2018). Thus,
Cir. 2017); United States v. Reyes-Ochoa, 861 F.3d 582, 587–
89 (5th Cir. 2017).
12
in view of Rosales-Mireles, the erroneous sentencing-
guideline calculation, left uncorrected, would impose a “risk of
unnecessary deprivation of liberty [that] particularly
undermines the fairness, integrity, or public reputation of
judicial proceedings.” Id.III. Conclusion
For the foregoing reasons, we will vacate Scott’s
sentence and remand for resentencing in line with this opinion.
13
United States of America v. Scott, No. 20-1514
PHIPPS, Circuit Judge, dissenting.
The Majority Opinion ably performs a complex and
detailed legal analysis to conclude for the first time
precedentially in this Circuit that, under the categorical
approach, Hobbs Act robbery, see 18 U.S.C. § 1951(b)(1), is
not a “crime of violence” under the career-offender provision
of the United States Sentencing Guidelines, see U.S.S.G.
§ 4B1.2(a). Because Appellant did not preserve that issue in
District Court, the plain-error standard governs his appeal.
Consistent with its namesake, that standard, through its second
prong, requires more than just a finding of error: the error must
also be plain. Here, the legal analysis is intricate, if not
abstruse – anything but plain – and for that reason, I do not
believe that Appellant satisfies the ‘plain’ requirement for
plain-error review. Accordingly, I would affirm the judgment
of the District Court, and I respectfully dissent.
An error is plain when it is “obvious” or, equivalently,
“clear under current law.”1 The more complex or
counterintuitive the legal analysis is, the less plain it is.2 In this
1
United States v. Olano, 507 U.S. 725, 734 (1993) (‘“Plain’ is
synonymous with ‘clear’ or, equivalently, ‘obvious.’”); United
States v. Vazquez, 271 F.3d 93, 100 (3d Cir. 2001) (en banc);
see also Fed. R. Crim. P. 52(b); Charles Alan Wright, Arthur
A. Miller & Peter J. Henning, 3B Federal Practice &
Procedure – Federal Rules of Criminal Procedure § 856
(4th ed. Oct. 2020 Update).
2
See United States v. Jabateh, 974 F.3d 281, 299 (3d Cir.
2020) (explaining that as the inquiry becomes deeper, the
1
case, the legal analysis – which involves the categorical
approach – is both complex and counterintuitive. And before
today, this Circuit had not precedentially applied the
categorical approach to the dispositive issue here: whether
Hobbs Act robbery constitutes a crime of violence under the
Guidelines.3 Yet as the Supreme Court has held, “a court of
appeals cannot correct an error [on plain-error review] unless
the error is clear under current law.”4
As far as I can tell, no one has ever described the categorical
approach as clear, obvious, simple, or straightforward.5 To the
contrary, one Supreme Court Justice explained that the
categorical approach requires “sentencing judges to delve into
pointless abstract questions,” as opposed to “real-world”
considerations.6 Another Justice recognized that the approach
produces “arbitrary and inequitable results.”7 A third Justice
described it as an “absurdity,” explaining that it “is difficult to
correct outcome becomes “less obvious”), petition for
certiorari docketed, 20-1369 (U.S. 2021).
3
Cf. United States v. Rodriguez, 770 F. App’x. 18 (3d Cir.
2019) (nonprecedential).
4
Olano, 507 U.S. at 734.
5
Even proponents of the categorical approach confess that
“[a]t first blush, it may seem counterintuitive.” Amit Jain &
Phillip Dane Warren, An Ode to the Categorical Approach,
67 UCLA L. Rev. Disc. 132, 138 (2019).
6
Mathis v. United States, 136 S. Ct. 2243, 2268–69 (2016)
(Alito, J., dissenting).
7
Id. at 2258 (Kennedy, J., concurring).
2
apply.”8 Two other Justices expressed concern that the
categorical approach “unnecessarily complicate[s] federal
sentencing law.”9 And several other Justices joined in the
remark that under the categorical approach, “[s]omething has
gone badly astray.”10
Similarly, no judge in this Circuit has described the
categorical approach as obvious or clear. One colleague
explained that it requires judges “to close their eyes to what is
obvious,”11 while another described its “catechism of inquiry”
as “ludicrous.”12 Moreover, multiple precedential opinions
8
Quarles v. United States, 139 S. Ct. 1872, 1880–81 (2019)
(Thomas, J., concurring).
9
Mathis, 136 S. Ct. at 2259 (Breyer, J., dissenting, joined by
Ginsburg, J.).
10
See Borden v. United States, 141 S. Ct. 1817, 1856 (2021)
(Kavanaugh, J., dissenting, joined by Roberts, Alito, and
Barrett, JJ.) (“Something has gone badly astray when this
Court is suggesting that second-degree murder and
manslaughter might not involve the ‘use of physical force
against the person of another.’”). See generally United States
v. Williams, 898 F.3d 323, 336 (3d Cir. 2018) (Hardiman, J.,
concurring in part and concurring in the judgment) (observing
that “several Justices have expressed dissatisfaction with the
categorical approach generally”).
11
United States v. Chapman, 866 F.3d 129, 139 (3d Cir. 2017)
(Jordan, J., concurring).
12
Williams, 898 F.3d at 337 (Roth, J., concurring).
3
recognize that the approach is “counterintuitive,”13 and another
expressed “dismay at having to employ the categorical
approach.”14 Even the Majority Opinion characterizes the
categorical approach as “oft-bedeviling.”
Those assessments are widely shared by judges in our sister
circuits. Beyond expressions of disbelief as to the outcomes it
generates,15 they have described the approach as
“complicated,”16 an “absurd[] exercise,”17 a “judicial
charade,”18 a “protracted ruse” for paradoxical findings,19 a
“morass” requiring “legal gymnastics,”20 a “long-baffling”
13
Cabeda v. Att’y Gen., 971 F.3d 165, 166 (3d Cir. 2020);
United States v. Mayo, 901 F.3d 218, 230 (3d Cir. 2018).
14
Moreno v. Att’y Gen., 887 F.3d 160, 163 n.3 (3d Cir. 2018).
15
See, e.g., United States v. Begay, 934 F.3d 1033, 1042
(9th Cir. 2019) (Smith, N.R., J., dissenting in part)
(“MURDER in the second-degree is NOT a crime of
violence???”).
16
United States v. Perez-Silvan, 861 F.3d 935, 944 (9th Cir.
2017) (Owens, J., concurring).
17
United States v. Scott, 990 F.3d 94, 125 (2d Cir. 2021) (en
banc) (Park, J., concurring), petition for certiorari docketed,
20-7778 (U.S. 2021).
18
Ovalles v. United States, 905 F.3d 1231, 1253 (11th Cir.
2018) (en banc) (Pryor, J., concurring).
19
United States v. Doctor, 842 F.3d 306, 313 (4th Cir. 2016)
(Wilkinson, J., concurring).
20
Lopez-Aguilar v. Barr, 948 F.3d 1148, 1149 (9th Cir. 2020)
(Graber, J., concurring).
4
undertaking,21 a “struggle[] to understand,”22 and an inquiry
that “crush[es] common sense”23 with “bizarre” effects that
lead to judicial “puzzlement.”24
But the Majority Opinion says that the application of the
categorical approach here is clear and obvious. It does so even
despite the lack of on-point, binding circuit precedent.
If nothing else, the deep and layered analysis that the
Majority Opinion admirably undertakes demonstrates that the
error here was not obvious or clear under current law. The
Majority Opinion first examines the relevant elements of
Hobbs Act robbery. Next, it accounts for both methods
through which a prior offense may qualify as a crime of
violence under the career-offender Guideline, see U.S.S.G.
§ 4B1.2(a). Then it rules out the first of those methods, the
elemental approach, because the elements of Hobbs Act
robbery sweep more broadly than the elements identified in
that Guideline. For the second method, the enumerated-
offense approach, the Majority Opinion identifies two
enumerated offenses (extortion and robbery) as candidates for
elemental equivalence to Hobbs Act robbery. The Majority
Opinion then sets forth the Guidelines’ elemental definition of
21
United States v. Burris, 912 F.3d 386, 407 (6th Cir. 2019)
(en banc) (Thapar, J., concurring).
22
United States v. Aguila-Montes de Oca, 655 F.3d 915, 917
(9th Cir. 2011) (en banc).
23
United States v. Escalante, 933 F.3d 395, 406 (5th Cir.
2019).
24
United States v. Valdivia-Flores, 876 F.3d 1201, 1210
(9th Cir. 2017) (O’Scannlain, J., specially concurring).
5
the first offense, extortion. For the other enumerated offense,
robbery, however, the Majority Opinion references a generic
meaning for that offense. After doing so, it determines – for
the first time precedentially in this Circuit – that the elements
of those two enumerated offenses may be combined for
purposes of the categorical approach. The Majority Opinion
then concludes that Hobbs Act robbery sweeps more broadly
than the combined elements of both of those enumerated
offenses. It does so through a detailed textual analysis that
examines the usage of ‘physical injury’ throughout the
Sentencing Guidelines to conclude that the term excludes harm
to property. And because Hobbs Act robbery can be proved by
harm to property, it does not categorically match the combined
elements of robbery and extortion under the Guidelines.
That is a lot of work for an obvious conclusion. Many of
those steps are not obvious or clear in themselves. And in
aggregate, the categorical-approach analysis needed to
establish error is far removed from what can be fairly described
as obvious or clear.25 The outcome, too, strains common sense:
the conclusion that Hobbs Act robbery is not robbery or even
extortion sounds more like the answer to a trick question than
an obvious or clear proposition.
But the Majority Opinion says that the error is plain. It does
so because other circuits have uniformly reached that result.
That condition alone, however, has never been sufficient to
justify the plainness of an error. Uniform out-of-circuit
25
Although categorical-approach errors are not plain per se,
the complexity inherent in the categorical approach counsels
that only in rare instances would such an error be plain. This
is not such an exceptional case.
6
precedent must be combined with some other factor – such as
a concession by the government26 or a clearly erroneous
application of statutory law27 – to establish plain error. The
Supreme Court recognizes as much by explaining that “a new
rule of law, set forth by an appellate court, cannot
automatically lead that court to consider all contrary
determinations by trial courts plainly erroneous.”28 And here
the Government does not concede; it vigorously argues that
those circuits erred in several respects – and its position is far
from frivolous. By minimizing the strength of the
Government’s argument, which presents a reasonable
dispute,29 the Majority Opinion deviates from this Circuit’s
precedent30 and makes a finding of plainness based solely on
the uniformity of cases in five other circuits – only one of
which was decided before February 25, 2020, the date the
District Court imposed the sentence in this case.31 Also, by
26
See United States v. Benjamin, 711 F.3d 371, 379 (3d Cir.
2013).
27
See United States v. Cole, 567 F.3d 110, 117 (3d Cir. 2009).
28
Henderson v. United States, 568 U.S. 266, 278 (2013).
29
See Puckett v. United States, 556 U.S. 129, 135 (2009)
(explaining that an error that is “subject to reasonable dispute”
is not plain).
30
See United States v. Harris, 471 F.3d 507, 512 (3d Cir. 2006)
(declining to find an error “plain” because the Supreme Court
had not previously ruled on the issue nor “had this Court in a
precedential opinion”).
31
Compare United States v. Camp, 903 F.3d 594 (6th Cir.
2018), with United States v. Prigan, 8 F.4th 1115 (9th Cir.
2021), United States v. Green, 996 F.3d 176 (4th Cir. 2021),
7
fastening the plainness analysis onto the results of other
circuits, the Majority Opinion diminishes this Circuit’s
independent obligation to say what the law is.32
In debilitating the plain-error rule, the Majority Opinion
affronts the Supreme Court’s guidance to preserve the exacting
nature of the standard.33 Today’s ruling improperly minimizes
Bridges v. United States, 991 F.3d 793, 801 (7th Cir. 2021),
and United States v. Eason, 953 F.3d 1184 (11th Cir. Mar. 24,
2020). The Majority Opinion affords no weight to the later-in-
time resolution of four of those cases because it cites
Henderson for the proposition that plainness is evaluated at the
time of review, not the time of error. But the rule in Henderson
applies only to “an intervening authoritative legal decision,”
such as the intervening Supreme Court decision at issue there.
Henderson, 568 U.S. at 270, 273 (emphasis added).
Henderson did not address the impact of intervening non-
binding decisions, much less the role of those later-in-time
cases in assessing out-of-circuit uniformity. And without those
later decided cases, the Majority Opinion cannot establish out-
of-circuit uniformity.
32
See generally 28 U.S.C. § 41 (setting forth thirteen distinct
circuit courts); Marbury v. Madison, 5 U.S. (1 Cranch) 137,
177 (1803) (“It is emphatically the province and duty of the
judicial department to say what the law is.”).
33
See United States v. Young, 470 U.S. 1, 15 (1985)
(cautioning against “[a]ny unwarranted extension of [the]
exacting definition of plain error” because doing so would
skew the ‘“careful balancing of our need to encourage all trial
participants to seek a fair and accurate trial the first time around
against our insistence that obvious injustice be promptly
8
the consequences for missed objections;34 instead, it favors
performing, for the first time on appeal, a layered and nuanced
analysis under the categorical approach coupled with a survey
of later-in-time, out-of-circuit precedent. That meticulous
undertaking – which sets precedent for the first time in this
Circuit – has none of the hallmarks of correcting a plain error,
so I would affirm the judgment of the District Court.
redressed’” (quoting United States v. Frady, 456 U.S. 152, 163
(1982))).
34
See United States v. Dominguez Benitez, 542 U.S. 74, 82
(2004) (explaining that the plain-error rule seeks “to encourage
timely objections and reduce wasteful reversals by demanding
strenuous exertion to get relief for unpreserved error”); United
States v. Vonn, 535 U.S. 55, 73 (2002) (explaining that the
plain-error rule is grounded in “the value of finality,” and thus
the rule “requires defense counsel to be on his toes”); see also
Rosales-Mireles v. United States, 138 S. Ct. 1897, 1911 (2018)
(Thomas, J., dissenting).
9