from the United States District Court for the District of
Kansas (D.C. No. 2:15-CR-20012-CM-1)
T. Hansmeier, Assistant Federal Public Defender (Melody
Brannon, Federal Public Defender, with him on the briefs),
Kansas City, Kansas, for Defendant -Appellant.
N. Capwell, Assistant United States Attorney (Stephen R.
McAllister, United States Attorney, with her on the brief),
Kansas City, Kansas, for Plaintiff-Appellee.
TYMKOVICH, Chief Judge, O'BRIEN, and MATHESON, Circuit
O'BRIEN, CIRCUIT JUDGE.
span of eleven days, Davion L. Jefferson committed five
robberies. Each was captured by multiple surveillance
cameras. The first three robberies occurred on separate
occasions but, strange as it may seem, at the same Fast Trip
convenience store. All three involved Jefferson and an
unnamed minor male accomplice (hereinafter accomplice). The
last two robberies occurred less than two hours apart on the
same date but at different locations-a Fast Stop convenience
store and a 7-Eleven gas station. Jefferson's cohort
during these robberies was Nicholas Lolar. Both Jefferson and
Lolar were armed. After these robberies, Jefferson posted
"Can't wake up broke" on his Facebook page.
(Supp. R. Vol. 1 at 30.) He included a picture of a hand
holding a wad of cash and a number of emojis, including a
was indicted with five counts of Hobbs Act robbery (Counts
1-3, 5, and 7) in violation of 18 U.S.C. § 1951(a),
(b)(1) and three counts of use and carry of a firearm in
violation of 18 U.S.C. § 924(c) (Counts 4, 6, and
At trial, he did not dispute his participation in all five
robberies but tried to plant seeds of reasonable doubt with
the jury as to the § 924(c) counts by suggesting the
weapons used during the last two robberies were not actual
firearms. Considering the very real possibility of a
mandatory 32 years in prison if found to have twice
brandished an actual firearm, see infra n.2, it was
sound trial strategy. The jury, however, was not convinced
and he was sentenced to the mandatory 32 years plus a
consecutive 70 months for the robberies, for a total sentence
of 454 months.
changes strategy on appeal. He does not now quarrel with the
jury's findings; instead he claims various legal errors.
As we explain, his alleged errors are either foreclosed by
precedent or harmless.
Counts 6 and 8 - § 924(c) counts
924(c) calls for increased penalties if a firearm is used or
carried "during and in relation to any crime of violence
. . . ." 18 U.S.C. § 924(c)(1)(A). Relevant here,
the statute defines "crime of violence" as a felony
offense having "as an element the use, attempted use, or
threatened use of physical force against the person or
property of another." 18 U.S.C. §
924(c)(3)(A). This statutory language is often referred
to as the force or elements clause (hereinafter elements
"crime[s] of violence" referred to in the §
924(c) counts (Counts 6 and 8) were the Hobbs Act robberies
charged in Counts 5 and 7, respectively. See supra
n.1. The Hobbs Act robbery statute, 18 U.S.C. § 1951(a),
(b)(1), prohibits one from "obstruct[ing], delay[ing] or
affect[ing] commerce or the movement of any article or
commodity in commerce, by robbery . . . ." 18 U.S.C.
§ 1951(a). It 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 . . . ."
18 U.S.C. § 1951(b)(1).
to trial, Jefferson submitted proposed jury instructions for
Counts 6 and 8 which would have required the jury to find (1)
he "committed robbery by force capable of causing
physical pain or injury to another person or the person's
property" as charged in Counts 5 and 7, respectively,
and (2) he "knowingly used or carried a firearm . . .
during and in relation to [those] robber[ies]." (R. Vol.
1 at 187, 189.) According to him, such an instruction was
necessary if the robberies were to qualify as "crime[s]
of violence" under § 924(c)(3)(A) because
"physical force" in that statute is equivalent to
"physical force" as used in the "violent
felony" definition in the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e)(2)(B)(i). The Supreme Court
defined "physical force" in § 924(e)(2)(B)(i)
as "violent force-that is, force capable of
causing physical pain or injury to another person."
See United States v. Johnson (Johnson I), 559 U.S.
133, 140 (2010).
judge refused the proposed instructions. Instead, he told the
jury (for Counts 6 and 8) the government had to prove beyond
a reasonable doubt he (1) "committed the crime of
robbery" as charged in Counts 5 and 7, respectively, and
(2) "knowingly used or carried a firearm . . . during
and in relation to [those] robber[ies]." (R. Vol. 1 at
254-55.) He also told the jury: "robbery is a crime of
violence." (Id. at 256.) After trial, Jefferson
moved for a judgment of acquittal on Counts 6 and 8, again
chanting his mantra-Hobbs Act robbery is not a "crime of
violence" under § 924(c)(3)(A). The judge denied
to Jefferson, the judge was wrong for two reasons. First,
Hobbs Act robbery is not a "crime of violence"
under § 924(c)(3)(A) because the statute requires the
predicate offense have a force element and Hobbs Act
robbery has only a force means. Second, even if
Hobbs Act robbery has a force element, the judge erred in
directing a verdict on that element; he should have instead
submitted the issue to the jury. We start with his latter
Directed Verdict on "Crime of Violence"
tells us a "crime of violence" is "an
essential conduct element" of § 924(c), see
Rosemond v. United States, 572 U.S. 65, 74 (2014)
(quotation marks omitted), which the government is required
to prove to the jury beyond a reasonable doubt under
Apprendi v. New Jersey, 530 U.S. 466, 477, 490
(2000) (other than the fact of a prior conviction, a
defendant is entitled to "a jury determination that he
is guilty of every element of the crime with which he is
charged beyond a reasonable doubt" (quotation marks
omitted)). We rejected that very argument in United
States v. Morgan, 748 F.3d 1024 (10th Cir. 2014).
Morgan, co-defendant Ford was indicted with (1)
kidnapping, (2) conspiracy to commit kidnapping, and (3) use
of a firearm during a crime of violence under § 924(c).
Id. at 1030. For purposes of the § 924(c)
count, the judge instructed the jury, "kidnapping [and]
conspiracy to kidnap . . . are crimes of violence."
Id. at 1034 (quotation marks omitted). Like
Jefferson in this case, Ford argued "crime of
violence" is an element of § 924(c) which the
prosecutor is required to prove to the jury beyond a
reasonable doubt. Id. at 1032. We saw it
differently. "Whether a crime fits the § 924(c)
definition of a 'crime of violence' . . . requires
examination of the legal elements of the crime, not an
exploration of the underlying facts." Id. at
1034. As a result, it is a "question of law" for
the judge, not the jury. Id. at 1034-35.
Morgan is well-reasoned and persuasive but even if
it were not, we are bound by its holding. See United
States v. Springer, 875 F.3d 968, 975 (10th Cir. 2017)
(under the "principles of horizontal stare
decisis," we are bound by published opinions of prior
panels "absent en banc reconsideration or a superseding
contrary decision by the Supreme Court" (quotation marks
acknowledges Morgan but argues we may not follow it
because it effectively overrules Apprendi and
Rosemond. See United States v. Mirabal, 876
F.3d 1029, 1039 (10th Cir. 2017) ("[W]e cannot overrule
a Supreme Court opinion."). But Morgan did no
such thing. Neither Apprendi nor Rosemond
spoke to whether a judge or a jury is to decide whether an
offense is a "crime of violence." Rather, as used
in this case, Apprendi stands for the unremarkable
proposition that a criminal defendant is entitled to "a
jury determination that he is guilty of every element of the
crime with which he is charged, beyond a reasonable
doubt." 530 U.S. at 477 (quotation marks omitted). And,
in Rosemond, the Supreme Court addressed what the
government must show to convict a defendant of aiding and
abetting a § 924(c) offense. 572 U.S. at 67. In doing
so, it stated the commission of a violent crime is
an essential element of § 924(c). Id. at 74. It
did not, however, assign to the jury the task of determining
whether an offense satisfies the "crime of
violence" definition of § 924(c)(3)(A).
Morgan is consistent with Supreme Court precedent.
In United States v. Taylor, the Supreme Court made
the categorical approach applicable in deciding whether an
offense qualifies as a "violent felony" under the
ACCA. 495 U.S. 575, 600 (1990). We have applied the same
approach in deciding whether a crime qualifies as a
"crime of violence" under § 924(c)(3).
United States v. Serafin, 562 F.3d 1105, 1107 (10th
Cir. 2009); see also United States v. Munro, 394
F.3d 865, 870 (10th Cir. 2005). Using the categorical
approach, we focus solely on the statute of conviction,
"while ignoring the particular facts of the case,"
to decide whether it satisfies the "crime of
violence" definition. See Mathis v. United
States, ___ U.S. ___, 136 S.Ct. 2243, 2248 (2016);
see also Taylor, 495 U.S. at 600. In other words,
deciding whether a crime is a "crime of violence"
under § 924(c) is largely a matter of statutory
interpretation, a legal task for the judge, not a factual one
for the jury. Diamond v. Chakrabarty, 447 U.S. 303,
315 (1980) (courts are charged with construing statutes);
Marbury v. Madison, 5 U.S. 137, 177 (1803) ("It
is emphatically the province and duty of the judicial
department to say what the law is.").
judge was not obliged and, in fact, ought never submit the
"crime of violence" issue to the jury. We now
consider whether Hobbs Act robbery is a "crime of
violence" under § 924(c)(3)(A).
Hobbs Act Robbery-Crime of Violence
argues Hobbs Act robbery is not a "crime of
violence" under § 924(c)(3)(A) because force is a
means of committing the crime, not an
element of the crime. But in United States v.
Melgar-Cabrera, we decided Hobbs Act robbery is
categorically a "crime of violence" under §
924(c)(3)(A)'s elements clause because the clause
requires the use of violent force, i.e., force capable of
causing physical pain or injury to another person, and the
force element in Hobbs Act robbery can be satisfied only by
violent force. 892 F.3d 1053, 1064-65 (10th Cir.
acknowledges Melgar-Cabrera, yet says we can ignore
it because it did not address his "elements versus
means" argument, but rather assumed Hobbs Act robbery
has a force element. Even if we were of a mind to,
we are not at liberty to ignore Melgar-Cabrera. It
remains the law of this Circuit "absent en banc
reconsideration or a superseding contrary decision by the
Supreme Court," neither of which has occurred here.
See Springer, 875 F.3d at 975 ...