Monday, August 27, 2018

U.S. v. Melgar-Cabrera, 892 F.3d 1053 (6/8/18) (N.M.) (Published) – Mr. Melgar-Cabrera was sentenced to life imprisonment pursuant to 18 U.S.C. § 924(j) for causing the death of a person while using a gun to commit an 18 USC § 924(c) crime of violence. He appealed, contending that Hobbs Act robbery, the underlying crime for which he was charged, is not categorically a crime of violence under 18 U.S.C. § 924(c)(3)(A).
Before addressing the merits, the Tenth Circuit held that 18 U.S.C. § 924(j) was separate crime, and not sentencing enhancement, overruling United States v. Battle, 289 F.3d 661 (2002).
On the merits of the appeal, Mr. Melgar-Cabrera contended that Hobbs Act robbery does not categorically constitute a crime of violence under § 924(c)(3)(A). Mr. Melgar-Cabrera argued that (1) the term “force” as used in the definition of robbery in 18 U.S.C. § 1951(b)(1) does not require violent force, whereas “physical force” as used in § 924(c)(3)(A) does; and (2) unlawfully taking a victim’s property against his or her will “by means of . . . fear of injury” does not require the attempted or threatened use of physical force.
As to the first argument, the 10th concluded that the word “force” as used in § 924(c)(3)(A) means “violent force,” as the Court held in Johnson v. United States, 559 U.S. 133 (2010) as to § 924(e)(2)(B)(i). The 10th applied the categorical approach and held that Hobbs Act robbery “can only be satisfied by violent force.” Thus, the 10th held that physical force as used in § 924(c)(3)(A) “means violent force—that is, force capable of causing physical pain or injury to another person.” As to the second argument, Mr. Melgar-Cabrera contended that placing a victim in fear of injury by threatening the indirect application of physical force is not sufficient to constitute the requisite threatened use of physical force because it focuses on the result of a defendant’s conduct, i.e., bodily injury, and not the means of inflicting it and relied on United States v. Perez-Vargas, 414 F.3d 1282 (10th Cir. 2005). The 10th recognized in United States v. Ontiveros, 875 F.3d 533, 536 (10th Cir. 2017) that the Supreme Court abrogated Perez-Vargas “[to] the extent that [it] holds that indirect force is not an application of ‘physical force.’ ” Ontiveros, at 538 (quoting United States v. Castleman, 134 S.Ct. 1405, 1415 (2014)). “To the extent Mr. Melgar-Cabrera contends that committing Hobbs Act robbery by putting someone in fear of injury does not necessarily constitute the threatened use of physical force because it can be done through indirect force, Ontiveros has foreclosed his argument.” As a result, the 10th affirmed Mr. Melgar-Cabrera’s conviction and life sentence.