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United States v. Jefferson

United States Court of Appeals, Tenth Circuit

December 28, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
DAVION L. JEFFERSON, Defendant-Appellant.

          Appeal from the United States District Court for the District of Kansas (D.C. No. 2:15-CR-20012-CM-1)

          Daniel T. Hansmeier, Assistant Federal Public Defender (Melody Brannon, Federal Public Defender, with him on the briefs), Kansas City, Kansas, for Defendant -Appellant.

          Carrie N. Capwell, Assistant United States Attorney (Stephen R. McAllister, United States Attorney, with her on the brief), Kansas City, Kansas, for Plaintiff-Appellee.

          Before TYMKOVICH, Chief Judge, O'BRIEN, and MATHESON, Circuit Judges.

          O'BRIEN, CIRCUIT JUDGE.

         In a 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 firearm emoji.

         Jefferson 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 8).[1] 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.[2]

         Jefferson 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.

         A. Counts 6 and 8 - § 924(c) counts

         Section 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).[3] This statutory language is often referred to as the force or elements clause (hereinafter elements clause).

         The "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).

         Prior 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).

         The 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 the motion.

         According 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 argument.

         1. Directed Verdict on "Crime of Violence" Issue

         Jefferson 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).

         In 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 omitted)).

         Jefferson 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).

         Actually, 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.").

         The 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).

         2. Hobbs Act Robbery-Crime of Violence

         Jefferson 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. 2018).[4]

         Jefferson 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 ...


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