United States v. Baker

Summary

The Tenth Circuit held that its prior decision in *United States v. Melgar-Cabrera*—which categorically held that Hobbs Act robbery is a crime of violence under 18 U.S.C. § 924(c)(3)(A)'s elements clause—remains binding precedent and is not undermined by arguments that Hobbs Act robbery can be committed by threatening injury to intangible property. The court denied the defendant's request to expand the certificate of appealability to challenge that holding. Following *United States v. Taylor*, 142 S. Ct. 2015 (2022), which held that attempted Hobbs Act robbery is not a crime of violence, the court remanded for the district court to determine whether the defendant may amend his § 2255 motion to raise a *Taylor*-based challenge to his Count 11 conviction predicated on attempted Hobbs Act robbery.

Holdings

1. Melgar-Cabrera is controlling and Hobbs Act robbery is categorically a crime of violence under § 924(c)(3)(A). The fact that Melgar-Cabrera did not specifically address threats to intangible property is irrelevant; the holding is categorical and binding.
2. The request to expand the COA is denied because the issue is not reasonably debatable under Melgar-Cabrera.
3. The Taylor issue was not preserved in this appeal because Baker did not raise a separate argument for attempted Hobbs Act robbery before Taylor, and the COA did not cover that issue. The court remands for the district court to consider whether amendment is appropriate.

Questions Presented

1. In light of the contention that Hobbs Act robbery can be accomplished by threatening injury to intangible property, was United States v. Melgar-Cabrera, 892 F.3d 1053 (10th Cir. 2018), wrongly decided because Hobbs Act robbery would not qualify as a crime of violence either categorically under § 924(c)(3)(A) or under § 924(c)(3)(B) after United States v. Davis?
2. Whether the court should expand the COA to consider whether Hobbs Act robbery is not a crime of violence because it can be committed by a threat to any property.
3. Whether Taylor v. United States affects Baker's Count 11 conviction for attempted Hobbs Act robbery.

Disposition

affirmed