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Date: 09-03-2021
Case Style:
United States of America v. STEVEN RAY PRIGAN
Case Number: 18-30238
Judge: Mary Helen Murguia
Court: UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Plaintiff's Attorney: James A. Goeke (argued), Assistant United States Attorney;
Joseph H. Harrington, United States Attorney; United States
Attorney’s Office
Defendant's Attorney:
Description:
St. Louis, MO - Criminal defense lawyer represented defendant with a illegally possessing firearms charge.
This case involves Steven Prigan’s sixty-four-month
sentence of imprisonment for illegally possessing firearms
in 2018. To correctly calculate Prigan’s Sentencing
Guidelines range for the 2018 firearms offense, the district
court had to first perform a categorical-approach analysis
and answer the following question: whether Prigan’s 2014
conviction for Hobbs Act robbery under 18 U.S.C.
§ 1951(b)(1) is a “crime of violence” according to United
States Sentencing Guidelines § 4B1.2(a). The answer to that
question determined whether Prigan’s Guidelines range
would increase. See U.S. Sent’g Guidelines Manual
(“U.S.S.G.”) § 2K2.1(a)(3) (U.S. Sent’g Comm’n 2018)
(requiring a higher base offense level for a defendant who
was previously convicted of a crime of violence under
§ 4B1.2(a)).
The district court determined that Prigan’s 2014
conviction for Hobbs Act robbery is a crime of violence
4 UNITED STATES V. PRIGAN
under § 4B1.2(a) and increased Prigan’s Guidelines range.
On appeal, Prigan argues that the district court erred in
concluding that his 2014 conviction for Hobbs Act robbery
is a crime of violence under § 4B1.2(a). Six of our sister
circuits have held that Hobbs Act robbery is not a crime of
violence under § 4B1.2(a). See United States v. Green,
996 F.3d 176, 184 (4th Cir. 2021); Bridges v. United States,
991 F.3d 793, 800 (7th Cir. 2021); United States v. Eason,
953 F.3d 1184, 1194 (11th Cir. 2020); United States v.
Rodriguez, 770 F. App’x 18, 21–22 (3d Cir. 2019); United
States v. Camp, 903 F.3d 594, 604 (6th Cir. 2018); United
States v. O’Connor, 874 F.3d 1147, 1158 (10th Cir. 2017).
We agree with our sister circuits and hold that Hobbs Act
robbery is not a crime of violence under § 4B1.2(a). We
therefore vacate Prigan’s sentence and remand this case for
resentencing.
I.
In June 2014, Prigan pleaded guilty to two counts of
Hobbs Act robbery under 18 U.S.C. § 1951. For that
conviction, the United States District Court for the Eastern
District of Washington sentenced Prigan to three years of
imprisonment and three years of supervised release. Prigan
served three years in prison and was released from physical
custody, but he remained on supervised release. Prigan’s
supervised-release conditions and conviction for Hobbs Act
robbery prohibited him from possessing any firearm or
ammunition.
In June 2018, federal officers searched Prigan’s
residence and vehicle. They found firearms, ammunition,
and methamphetamine. The officers arrested Prigan. A
grand jury indicted Prigan on two counts involving firearms.
Count 1 charged Prigan as a felon and unlawful user of
UNITED STATES V. PRIGAN 5
controlled substances who possessed firearms and
ammunition in violation of 18 U.S.C. §§ 922(g)(1),
922(g)(3), and 924(a)(2). Count 2 charged Prigan with
possessing an unregistered firearm in violation of 26 U.S.C.
§ 5841. Prigan pleaded guilty to both Counts in a written
plea agreement.
In November 2018, the district court held a hearing to
sentence Prigan in the 2018 firearms case. The district court
received a Presentence Investigation Report (“PSR”)
containing a Guidelines calculation. The PSR stated that
Prigan’s 2014 conviction for Hobbs Act robbery constituted
a crime of violence under § 4B1.2(a). This categorization
increased Prigan’s Guidelines range from forty-six to fiftyseven months of imprisonment to fifty-seven to seventy-one
months of imprisonment. See U.S.S.G. § 2K2.1(a)(3)
(requiring a higher base offense level for Prigan’s Guidelines
calculation if he was previously convicted of a crime of
violence under § 4B1.2(a)).
Prigan objected to the PSR. In Prigan’s view, the PSR
erred in stating that his 2014 conviction for Hobbs Act
robbery is a crime of violence under § 4B1.2(a) and
erroneously inflated Prigan’s Guidelines range. The
government’s counsel acknowledged Prigan’s “very
thoughtful brief on the issue” and did not offer any written
response in the district court.
The district court overruled Prigan’s objections to the
PSR. That is, the district court ruled that Prigan’s 2014
conviction for Hobbs Act robbery is a crime of violence
under § 4B1.2(a). As a result, the district court concluded
that Prigan’s Guidelines range was fifty-seven to seventyone months of imprisonment. The district court sentenced
Prigan to sixty-four months of imprisonment because the
district court thought a sentence within the Guidelines range
6 UNITED STATES V. PRIGAN
was appropriate. Prigan timely appealed his sixty-fourmonth sentence.1
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review de novo whether an offense is a crime of violence
under the Guidelines. See United States v. Robinson,
869 F.3d 933, 936 (9th Cir. 2017). A district court’s
Guidelines-calculation error is subject to harmless-error
review. United States v. Munoz-Camarena, 631 F.3d 1028,
1030 (9th Cir. 2011) (per curiam).
III.
On appeal, Prigan argues that his 2014 conviction for
Hobbs Act robbery is not a crime of violence under
§ 4B1.2(a). We apply the “formal categorical approach” to
determine whether a criminal defendant’s prior conviction is
a crime of violence under § 4B1.2(a). See Descamps v.
United States, 570 U.S. 254, 261 (2013) (citation omitted).
To apply the categorical approach, we do not look at the
facts underlying Prigan’s 2014 conviction for Hobbs Act
robbery. See United States v. Velasquez-Reyes, 427 F.3d
1227, 1229 (9th Cir. 2005). We instead compare “the scope
of the conduct covered by the elements of Hobbs Act
robbery with the definitions of ‘crime of violence’ in []
1 The district court also sentenced Prigan to ten months of
imprisonment for violating the supervised-release conditions in the 2014
robbery case. The district court ordered those ten months of
imprisonment to run consecutively with Prigan’s sixty-four-month
sentence in the 2018 firearms case. The ten-month sentence is not at
issue in this appeal.
UNITED STATES V. PRIGAN 7
§ 4B1.2(a).” Eason, 953 F.3d at 1189.2 If the conduct
covered by Hobbs Act robbery sweeps more broadly than the
conduct covered by § 4B1.2(a)’s crime-of-violence
definitions, Hobbs Act robbery is not categorically a crime
of violence under § 4B1.2(a). See Descamps, 570 U.S.
at 261; Eason, 953 F.3d at 1189. On the other hand, if the
conduct covered by Hobbs Act robbery does not sweep more
broadly than the conduct covered by § 4B1.2(a)’s crime-ofviolence definitions, Hobbs Act robbery is categorically a
crime of violence under § 4B1.2(a); that is because all Hobbs
Act robberies would be contained within § 4B1.2(a)’s crimeof-violence definitions. See Descamps, 570 U.S. at 261.
A.
Our categorical-approach analysis starts with the
elements of Hobbs Act robbery, which is defined as follows:
[T]he 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, or property
in his custody or possession, or the person or
property of a relative or member of his family
or of anyone in his company at the time of the
taking or obtaining.
2 Neither the government nor any circuit has suggested that Hobbs
Act robbery under 18 U.S.C. § 1951(b)(1) is divisible. The modifiedcategorical approach is therefore not pertinent here. See Descamps,
570 U.S. at 258; United States v. Walton, 881 F.3d 768, 774–75 (9th Cir.
2018).
8 UNITED STATES V. PRIGAN
18 U.S.C. § 1951(b)(1) (emphasis added). The key
takeaway from § 1951(b)(1)’s text—for our purpose—is that
a person may commit Hobbs Act robbery by using force or
threatening to use force against a person or property. See
Green, 996 F.3d at 180; Bridges, 991 F.3d at 800.
On the other hand, § 4B1.2(a)’s crime-of-violence
definitions are narrower because a person commits a crime
of violence only if he or she uses force or threatens to use
force against persons. See Bridges, 991 F.3d at 800–02.
Section 4B1.2(a) defines “crime of violence” as any federal
or state offense that:
(1) has as an element the use, attempted use,
or threatened use of physical force against
the person of another, or
(2) is murder, voluntary manslaughter,
kidnapping, aggravated assault, a forcible sex
offense, robbery, arson, extortion, or the use
or unlawful possession of a firearm described
in 26 U.S.C. § 5845(a) or explosive material
as defined in 18 U.S.C. § 841(c).
U.S.S.G. § 4B1.2(a) (emphasis added).
We will call § 4B1.2(a)(1) the “force clause” because it
covers defendants who use force or threaten to use force
against a person. See id. § 4B1.2(a)(1). And we will call
§ 4B1.2(a)(2) the “enumerated-offenses clause” because it
covers a list of enumerated offenses that constitute a crime
of violence. See id. § 4B1.2(a)(2). The parties here agree
that robbery and extortion are the only two relevant offenses
within § 4B1.2(a)’s enumerated-offenses clause in Prigan’s
case.
UNITED STATES V. PRIGAN 9
With these provisions in mind, we must determine
whether Hobbs Act robbery sweeps more broadly than
(1) § 4B1.2(a)’s force clause, (2) “robbery” under
§ 4B1.2(a)’s enumerated-offenses clause, and
(3) “extortion” under § 4B1.2(a)’s enumerated-offenses
clause. See Green, 996 F.3d at 180–84. If Hobbs Act
robbery sweeps more broadly than all three, Prigan’s 2014
conviction for Hobbs Act robbery is not categorically a
crime of violence under § 4B1.2(a). See id. On the other
hand, if Hobbs Act robbery does not sweep more broadly
than any one of those three, Prigan’s 2014 conviction for
Hobbs Act robbery is categorically a crime of violence under
§ 4B1.2(a). See id.
As our sister circuits have held, Hobbs Act robbery
sweeps more broadly than all three clauses. While Hobbs
Act robbery covers force or threats of force against a person
or property, § 4B1.2(a)’s force clause and the relevant
enumerated offenses—robbery and extortion—cover force
or threats of force only against persons. See, e.g., id.; Eason,
953 F.3d at 1190–96.
B.
1.
The first question is whether Hobbs Act robbery sweeps
more broadly than § 4B1.2(a)’s force clause. It does. Hobbs
Act robbery includes using force or threatening to use force
against any “person or property.” 18 U.S.C. § 1951(b)(1)
(emphasis added). Yet § 4B1.2(a)’s force clause only covers
a conviction that has “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) (emphasis added).
10 UNITED STATES V. PRIGAN
These definitions—by their express terms—show that
Hobbs Act robbery sweeps more broadly than § 4B1.2(a)’s
force clause. Eason, 953 F.3d at 1190–93. Hobbs Act
robbery covers using force or threatening to use force against
a person or property, but § 4B1.2(a)’s force clause does not
extend to force or threats of force against property. See
Green, 996 F.3d at 180–81; Eason, 953 F.3d at 1190–93; cf.
United States v. Edling, 895 F.3d 1153, 1156–57 (9th Cir.
2018) (holding that a state robbery statute functionally
identical to Hobbs Act robbery—criminalizing taking by
force or threat of force against a “person or property”—is
broader than § 4B1.2(a)’s force clause). Because Hobbs Act
robbery sweeps more broadly than § 4B1.2(a)’s force clause,
Hobbs Act robbery is not a categorical match for
§ 4B1.2(a)’s force clause. Green, 996 F.3d at 181. Prigan’s
2014 conviction for Hobbs Act robbery is therefore not a
crime of violence under § 4B1.2(a)’s force clause. Id.
at 181, 184.
2.
The second question is whether Hobbs Act robbery
sweeps more broadly than § 4B1.2(a)’s enumerated offense
of robbery. Because the Guidelines do not define “robbery,”
we use the generic definition of robbery under federal law.
See Descamps, 570 U.S. at 257; Camp, 903 F.3d at 600. The
question thus becomes whether Hobbs Act robbery sweeps
more broadly than the generic definition of robbery under
federal law. See Camp, 903 F.3d at 600.
The analysis here is straightforward. As stated above,
Hobbs Act robbery covers any person who uses force or
threatens to use force against a “person or property.”
18 U.S.C. § 1951(b)(1). By contrast, generic federal robbery
is “aggravated larceny, containing at least the elements of
misappropriation of property under circumstances involving
UNITED STATES V. PRIGAN 11
immediate danger to the person.” United States v. BecerrilLopez, 541 F.3d 881, 891 (9th Cir. 2008) (citation omitted).
Our court has concluded that “generic federal robbery . . .
does not extend to threats to property.” United States v.
Bankston, 901 F.3d 1100, 1103 (9th Cir. 2018); see also
Edling, 895 F.3d at 1157 (“Generic robbery requires danger
to the person, not merely danger to property.”).
The definitions above and our precedent show that
Hobbs Act robbery sweeps more broadly than generic
federal robbery. Although Hobbs Act robbery covers
threatening to use force against a person or property, generic
federal robbery does not cover threats of force against
property. See, e.g., Eason, 953 F.3d at 1193–95. Because
Hobbs Act robbery sweeps more broadly than generic
federal robbery, Hobbs Act robbery is not categorically
“robbery” under § 4B1.2(a)’s enumerated-offenses clause.
See id. So Prigan’s 2014 conviction for Hobbs Act robbery
is not “robbery” under § 4B1.2(a)’s enumerated-offenses
clause. See, e.g., Descamps, 570 U.S. at 261; Green,
996 F.3d at 181–82; Eason, 953 F.3d at 1193–95.
3.
The third question is whether Hobbs Act robbery sweeps
more broadly than § 4B1.2(a)’s enumerated offense of
extortion. Because the Guidelines define “extortion,” we use
that definition. Green, 996 F.3d at 182; Bankston, 901 F.3d
at 1103–04. The question becomes whether Hobbs Act
robbery sweeps more broadly than the Guidelines’ definition
of extortion. Green, 996 F.3d at 182; Bankston, 901 F.3d
at 1103–04.
Again, the analysis is straightforward. As already
explained, Hobbs Act robbery covers any person who uses
force or threatens to use force against a “person or property.”
12 UNITED STATES V. PRIGAN
18 U.S.C. § 1951(b)(1). By contrast, the Guidelines define
extortion as “obtaining something of value from another by
the wrongful use of (A) force, (B) fear of physical injury, or
(C) threat of physical injury.” Bankston, 901 F.3d at 1103–
04 (citation omitted). Our court has construed the
Guidelines’ definition of extortion to require that “the
wrongful use of force, fear, or threats be directed against the
person of another, not property.” Edling, 895 F.3d at 1157
(emphases added).
These definitions and our prior interpretations show that
Hobbs Act robbery sweeps more broadly than the
Guidelines’ definition of extortion. Hobbs Act robbery
covers threatening to use force against persons or property,
but the Guidelines’ definition of extortion does not extend to
threats of force against property. See Eason, 953 F.3d at
1194; Bankston, 901 F.3d at 1102–04. Because Hobbs Act
robbery sweeps more broadly than “extortion” under
§ 4B1.2(a)’s enumerated-offenses clause, Hobbs Act
robbery is not categorically “extortion” under § 4B1.2(a)’s
enumerated-offenses clause. See Eason, 953 F.3d at 1194–
95. As a result, Prigan’s 2014 conviction for Hobbs Act
robbery is not “extortion” under § 4B1.2(a)’s enumeratedoffenses clause. See Descamps, 570 U.S. at 261; Green,
996 F.3d at 183–84.
* * *
In sum, Hobbs Act robbery sweeps more broadly than
(1) § 4B1.2(a)’s force clause, (2) § 4B1.2(a)’s enumerated
offense of robbery, and (3) § 4B1.2(a)’s enumerated offense
of extortion. See, e.g., Green, 996 F.3d at 184. Hobbs Act
robbery covers using force or threatening to use force against
persons or property, while § 4B1.2(a)’s crime-of-violence
definitions do not cover using force or threatening to use
force against property. Id. at 180–84. Accordingly, Prigan’s
UNITED STATES V. PRIGAN 13
2014 conviction for Hobbs Act robbery is not categorically
a crime of violence under § 4B1.2(a).3 The district court
erred in ruling otherwise when calculating Prigan’s
Guidelines range.
C.
Because the district court incorrectly ruled that Prigan’s
2014 conviction for Hobbs Act robbery is a crime of
violence under § 4B1.2(a), the district court incorrectly
concluded that Prigan’s Guidelines range for the 2018
firearms offense is fifty-seven to seventy-one months of
imprisonment. The PSR stated that Prigan’s Guidelines
range would be forty-six to fifty-seven months of
imprisonment if his 2014 conviction for Hobbs Act robbery
were not considered a crime of violence. The district court’s
sentence for the 2018 firearms offense—sixty-four months
of imprisonment—does not fall within Prigan’s correct
Guidelines range.
The government argues that even if the district court
erred in calculating Prigan’s Guidelines range, any error was
harmless. An error in calculating a criminal defendant’s
3 The government points to United States v. Dominguez, 954 F.3d
1251, 1260 (9th Cir. 2020), which held that Hobbs Act robbery
constitutes a “crime of violence” under 18 U.S.C. § 924(c)(3)(A).
Dominguez is not relevant here because § 924(c)(3)(A)’s crime-ofviolence definition is different—and broader—than § 4B1.2(a)’s force
clause. Compare 18 U.S.C. § 924(c)(3)(A) (defining “crime of
violence” as a felony that “has as an element the use, attempted use, or
threatened use of physical force against the person or property of
another”) (emphasis added), with U.S.S.G. § 4B1.2(a)(1) (defining
“crime of violence” as having “as an element the use, attempted use, or
threatened use of physical force against the person of another”)
(emphasis added). Other circuits agree with this distinction. See, e.g.,
Green, 996 F.3d at 181.
14 UNITED STATES V. PRIGAN
Guidelines range is subject to harmless-error review.
Munoz-Camarena, 631 F.3d at 1030. But “[n]ormally, [a]
mistake in calculating the recommended Guidelines
sentencing range is a significant procedural error that
requires us to remand for resentencing.” United States v.
McCarns, 900 F.3d 1141, 1145 (9th Cir. 2018) (citation
omitted); see also United States v. Leal-Vega, 680 F.3d
1160, 1169–70 (9th Cir. 2012). For the district court’s
calculation error to be harmless, the district court “must
explain, among other things, the reason for the extent of a
variance” from the correct Guidelines range. MunozCamarena, 631 F.3d at 1031 (citing United States v. Carty,
520 F.3d 984, 991–92 (9th Cir. 2008) (en banc)).
Here, the district court provided no explanation for
varying from what we now know to be the correct Guidelines
range of forty-six to fifty-seven months of imprisonment, let
alone for the extent of such variance. In fact, the district
court rooted its sixty-four-month sentence squarely in the
incorrect Guidelines range of fifty-seven to seventy-one
months, expressly stating it “believe[d] that a guideline
sentence is appropriate.” Nothing in the record demonstrates
that the district court would have varied upward and imposed
a sixty-four-month sentence if Prigan’s “correct Guidelines
range [of forty-six to fifty-seven months of imprisonment]
was kept in mind throughout the process.” Id. (citation and
quotation marks omitted). For these reasons, the district
court did not commit a harmless error when it incorrectly
calculated Prigan’s Guidelines range. See id. at 1030–31.4
4 We have provided non-exhaustive examples of harmless-error
situations in the Guidelines context. See Munoz-Camarena, 631 F.3d
at 1030 n.5. None of these circumstances, nor any similar circumstance
UNITED STATES V. PRIGAN 15
IV.
We remand this case to the district court for resentencing
on an open record. The district court must conduct a new
sentencing hearing for the 2018 firearms offense and, this
time around, may not consider Prigan’s 2014 conviction for
Hobbs Act robbery a crime of violence when calculating the
Guidelines range for the 2018 firearms offense
Outcome: VACATED, REVERSED, AND REMANDED.
Plaintiff's Experts:
Defendant's Experts:
Comments: