What’s going on with robbery predicates?

Once upon a time, the question in this title would have seemed ridiculous. Any conviction labeled “robbery”―state, federal, armed, unarmed, attempt, conspiracy, you name it―counted under every recidivist statute under the sun. To cite a Hollywood phrase, robbery predicates were everywhere everything all at once. All of that changed over the last decade. The victories―local and national―were many. We list some of them below.

Well, the backlash has begun. In US v. Harrison, 56 F.4th 1325, 1332, 1336 (11th Cir. 2023), the Eleventh Circuit dismantled some of the progress we’ve made. It held for the first time that the Georgia robbery statute writ large, O.C.G.A. § 16-8-40(a), is divisible, and that robbery by intimidation under subsection (a)(2) qualifies as a crime of violence under the enumerated-crimes clause in U.S.S.G. § 4B1.2(a)(2). (A silver lining: The panel did not say that the crime fits under the U.S.S.G. § 4B1.2(a)(1) elements clause, the doppelganger of the ACCA’s own elements clause.) The divisibility holding is a disaster. It means, surely, that a Georgia robbery by force conviction under subsection O.C.G.A. § 16-8-40(a)(1) is once again a crime of violence under the guidelines. And it may well lead to a bad ruling under the elements clauses.

So, beyond Harrison, what is going on with robbery predicates? There is still plenty of good news on the books.

• Georgia robbery by sudden snatching is neither a crime of violence under the guidelines nor an ACCA violent felony. Harrison, 56 F.4th at 1331 (accepting government concession that crime does not fit under elements clause or enumerated crimes clause).
• Is Georgia robbery by intimidation an ACCA violent felony? This is an open question, post-Harrison, but we won the issue a few years ago. Harrison (No Relation) v. US, Doc. 216, No. 1:08-CR-32-RWS-1 (N.D. Ga. 2016) (RBI is not ACCA violent felony).
• Is Georgia robbery by force an ACCA violent felony? An open question, post-Harrison, but we’re worried.
• Is Georgia attempted robbery an ACCA predicate? Open question post-US v. Taylor, 142 S. Ct. 2015, 2021 (2022), and post-Alvarado-Linares v. US, 44 F.4th 1344, 1345-48 (11th Cir. 2022).
• Conspiracy to commit Hobbs Act robbery is not a crime of violence under § 924(c). Brown v. US, 942 F.3d 1069, 1075-76 (11th Cir. 2019).
• Attempted Hobbs Act robbery is not a crime of violence under § 924(c). US v. Taylor, 142 S. Ct. 2015, 2021 (2022).
• Attempted federal armed bank robbery is not a crime of violence under § 924(c), we hope. United States v. Trubey, No. 8:16-CV- 1737-SCB-TBM, Doc. 51 at 8-9 (M.D. Fla. Jan. 10, 2023). The issue is pending in Henderson v. US, No. 21-11740 (11th Cir. 2023).
• Hobbs Act robbery is not a crime of violence under the Sentencing Guidelines. 953 F.3d 1184, 1189 (11th Cir. 2020) (so, the crime cannot form the basis of a career-offender enhancement). This win will turn to a loss if the Sentencing Commission’s proposed guideline amendments become law in November.
• Hobbs Act robbery is not a crime of violence under § 924(c). US v. Louis, No. 21-CR-20251-KMW (S.D. Fla. 2023). Wait, what?! Yes, you read that right! Although the Eleventh Circuit has always held that the crime counts under § 924(c)’s elements clause, see In re Saint Fleur, 824 F.3d 1337, 1340-41 (11th Cir. 2016), the district judge in Louis recently held that Taylor abrogates that precedent.
• Inchoate robberies (attempts and conspiracies) of all stripes state and federal are not crimes of violence under the Sentencing Guidelines. US v. Dupree, 57 F.4th 1259 (11th Cir. 2023) (en banc). Here, too, the Commission has proposed a guideline amendment that would nullify Dupree, so stay tuned.

As always, we’d love to hear from you about your own litigation of robbery predicates. In spite of the recent bad news in Harrison, we won’t let the Eleventh Circuit steal (or rob) our joy. Onward we march.