Tuesday, January 24, 2017

Colorado Robbery Held to Be a Predicate Violent Offense for ACCA, Career Offender Purposes

U.S. v. Harris, 2017 WL 34458 (1/4/17) (Col.) (Published) - The 10th opinion begins: "The issue in this appeal questions what should be the obvious: That statutory robbery is a 'violent felony' under the ACCA." Colorado robbery consists of taking anything of value from the person or presence of another by the use of force, threats or intimidation. To start with, the 10th rules the robbery statute is indivisible. So if the minimum culpable conduct involving any of the three means does not "have as an element the use, attempted use or threatened use of physical force," Colorado robbery is not a "violent felony." The 10th also declares there must be a realistic probability the statute would apply to the conduct. The 10th acts like this is an obvious proposition. But there is a good argument such a probability is not required for "physical clause" questions, as argued in Maldonado-Palma---an issue the 10th didn't address in that case. Also before jumping into what Colorado robbery means, the 10th suggests hitting, slapping, shoving, grabbing, pinching, biting and hair pulling could involve enough force to be capable of causing physical pain or injury, thus meeting the "physical force" clause standard.

The 10th finds that Colorado case law describes Colorado robbery as akin to common law robbery. The Colorado supreme court has said the gravamen of robbery is "the violent nature of the taking." Colorado cases are consistent with the common law emphasis on the assaultive nature of the crime, the 10th says. The 10th notes the dictionary definition of violent, i.e., "extreme force marked by abnormally sudden physical activity and intensity." The 10th rejects Mr. Harris's citation to a couple of Colorado cases. The 10th notes they didn't explicitly discuss the requisite amount of force and one involved a "forceful shove" and the other "placing a hand over the victims mouth," which the 10th thinks "was surely enough to incite fear of personal harm." This is the extent of the support for its holding regarding the force part of the robbery statute. Luckily for us, the 10th distinguishes Colorado robbery from other states' robberies that circuit courts have found not to satisfy the "physical force" clause. Massachusetts robbery in the 9th's Parnell case departs from the common law and does not require victim resistance; Missouri robbery in the 8th's Bell case requires physical contact but it need not cause physical pain or injury; for North Carolina common law robbery in the 4th's Gardner case the degree of force is immaterial; Arkansas robbery in the 8th's Eason case is defined as "any bodily impact, restraint or confinement." The 10th cites in support a number of circuit courts that have found different state robberies to be "violent felonies."

As for the threats or intimidation parts of Colorado robbery, the 10th surges into more troubling territory. It reads one state supreme court case as saying threats or intimidation involve the use of force or violence. It then declares this means enough force is involved to be "physical force." The common denominator of all three means of Colorado robbery is force or violence, the 10th explains. The 10th rejects the contention that Colorado robbery can be committed by threats to property. The 10th switches from the common law robbery notion and explains nowadays many states have abandoned the notion of threat to property as being part of robbery, creating extortion statutes instead. This is what Colorado has done, the 10th finds. The 10th concludes that only theoretically nonviolent conduct might constitute Colorado robbery. In real life robbery always involves force capable of causing physical injury or pain.

Judge Ebel concurs with the judgment. He agrees with the force component of the opinion, but opines that the court should not have addressed the threat or intimidation parts of the robbery statute because Mr. Harris had not preserved a challenge to those parts of Colorado robbery. He disagrees with the Harris majority in Crump, below.

U.S. v. Crump, 2017 WL 33530 (1/4/17) (Co.) (unpublished) - The majority in this case holds that Harris requires it to find Colorado robbery is a "crime of violence" under the career-offender guidelines. It declines to address the question whether Colorado robbery is the same as the generic robbery enumerated in the career-offender commentary. Judge Ebel dissents. He interprets state law to consider intimidation or threats to include threats to property or the rights of another and so not necessarily satisfying the "physical force" clause. He doesn't cite to a particular case involving less than force capable of causing pain or injury. But he says that , given the variety of nonviolent ways robbery could be committed, there is a realistic probability of a robbery that didn't involve the requisite "physical force." Judge Ebel goes on to hold, as we've argued, that the listing of robbery in the commentary does not mean generic robbery is a "crime of violence" under ยง 4B1.2 before its August amendment. Commentary cannot be inconsistent with the guideline text Without the unconstitutional residual clause in the text, robbery cannot survive in the commentary.