Aiding & Abetting, Crime of Violence under USSG?

In early 2016, Mr. Leon Eckford participated in two jewelry store robberies. 

The first robbery was relatively straightforward.  Two of Eckford’s co-conspirators entered a jewelry store and used a sledgehammer and an axe to smash open display cases.  Eckford then entered the store to help his co-conspirators take 14 Rolex watches worth a total of over $200,000.

In the second robbery, one of Eckford’s co-conspirators used a handgun to strike a security guard.  The co-conspirator then pointed the gun at the security guard, ordered him to the ground and then took the guard’s gun that he had in his holster.  The co-conspirator then pointed his gun at the store employees and the security guard while Eckford and three other co-conspirators hacked at display cases with axes and sledgehammers.  The group grabbed 133 Rolex watches valued at over $2 million.

In April 2016, Eckford was arrested at this home and in a post arrest interview, admitted to participating in both robberies.

Eckford was indicted on five counts: one count of conspiracy to commit a Hobbs Act robbery, 18 U.S.C. § 1951(a); two counts of aiding & abetting a Hobbs Act Robbery, one count of aiding & abetting the use of a firearm during a crime of violence, 18 U.S.C. § 924(c)(1)(A)(ii); and one count of being a felon knowingly in possession of ammunition, 18 U.S.C. § 922(g)(1).  Eckford pleaded guilty to the first four counts.  The felon in possession charge was dismissed.

At sentencing in the Central District Court of California, before Judge Cormac J. Carney, Judge Carney calculated a sentencing guidelines range of 63 to 78 months for Eckford’s three Hobbs Act robbery counts.  Because a conviction for “brandish[ing]” a firearm in furtherance of a “crime of violence” requires a mandatory consecutive seven-year sentence under 18 U.S.C. § 924(c)(1)(A)(ii), Judge Carney bumped up the guideline calculation to 147 to 162 months.

However, in light of a number of mitigating factors, including Eckford’s traumatic upbringing, his contrition for the crimes and exemplary behavior in prison, Judge Carney varied downward from the guidelines and issued a sentence of 11 years (132 months).

As permitted by the plea agreement, Eckford filed a timely appeal of his sentence in the United States Court of Appeal for the Ninth Circuit, arguing that aiding and abetting a Hobbs Act robbery was not a crime of violence. 

The Ninth Circuit affirmed the sentence enhancement, finding that aiding and abetting a Hobbs Act robbery was a crime of violence, supporting the sentence enhancement. 

Under a provision of § 924(c), known as the “elements clause,” the phrase “crime of violence” is defined as “an offense that is a felony and . . . has an element the use, attempted use, or threatened us of physical force against the property of another.”  18 U.S.C. § 924(c)(3).

As used in the elements clause, “the phrase ‘physical force’ means violent force – that is, force capable of causing physical pain or injury to another person.”  Johnson v. United States (2010) 559 U.S. 133, 140.

The next step in determining whether a federal felony may serve as a predicate for a conviction and sentence under the element clause is application of the “categorical approach.”  United States v Taylor (2022) 142 S. Ct. 2015, 2020.

The categorical approach ignores the facts surrounding defendant’s conviction. Id.  Instead, “the only relevant question is whether the federal felony at issue always required the government to prove – beyond a reasonable doubt, as an element of its case – the use, attempted use, or threatened use of force.”  Id.

In evaluating this, the Ninth Circuit referenced United States v. Mendez (9th Cir., 1993) 992 F.2d 1448, 1491, wherein the Ninth Circuit held that a Hobbs Act robbery was a crime of violence.  However, the court explained, that holding was based on application of the so-called “residual clause of § 924(c)(3)(B). Id. at 1491-1492.  Section 924(c)(3)(B) stated that a “[C]rime of violence is a felony and . . . by its nature involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

In 2019, however, the U.S. Supreme Court ruled that the residual clause of § 924(c)(3)(B) was unconstitutionally vague and therefore, unenforceable.  United States v. Davis (2019) 139 S. Ct. 2319, 2336.

Using the categorical approach, the Ninth Circuit addressed whether a Hobbs Act robbery was a crime of violence in United States v. Dominguez (9th Cir. 2020) 954 F.3d 1251, wherein it reasoned that even in “the least serious way” to commit Hobbs Act robbery, “placing a victim in fear of bodily injury” satisfied the elements clause “because it “requires at least an implicit threat to use . . . violent physical force.” Id. at 1260 (quoting United States v. Gutierrez (9th Cir. 2017) 876 F. 3d 1254, 1257).

Therefore, the Ninth Circuit affirmed the district court sentence and denied Ms. Eckford’s appeal.