United States District Court, E.D. Virginia, Richmond Division
E. Payne, Senior United States District Judge
matter is before the Court on Defendant's MOTION TO
DISMISS COUNT TWO OF THE INDICTMENT (ECF No. 14). For the
following reasons, the motion will be denied.
case involves the prosecution of Defendant Terrail Lamont
Jennings for Interference with Commerce by Robbery
("Hobbs Act Robbery") in violation of 18 U.S.C.
§ 1951 (Count 1) and for Use and Carrying of a Firearm
During and in Relation to a Crime of Violence in violation of
18 U.S.C. § 924(c). See Indictment 1. The
Indictment alleges, it appears, that Jennings brandished a
firearm at an Exxon gas station and convenience store in
Richmond, Virginia and demanded all the money in the cash
register. See Indictment 1-2. Jennings moves to
dismiss Count 2 of the Indictment, i.e., the firearm
STANDARDS GOVERNING FED. R. CRIM. P. 12(b)
Jennings does not clarify the procedural ground for his
motion to dismiss, the Court construes it as a motion to
dismiss under Fed. R. Crim. P. 12(b)(3).
Crim. P. 12(b) (1) provides that "[a] party may raise by
pretrial motion any defense, objection, or request that the
court can determine without a trial on the merits." Fed.
R. Crim. P. 12(b)(1). Under Fed. R. Crim. P. 12(b)(3), a
defendant may raise, by pretrial motion, the issue of "a
defect in the indictment or information, including . . .
failure to state an offense," at least so long as
"the basis for the motion is then reasonably available
and the motion can be determined without a trial on the
merits." Fed. R. Crim. P. 12(b)(3). "The defendant
is entitled to dismissal if he shows that the
indictment's allegations, 'even if true, would not
state an offense.'" United States v. Whyte,
229 F.Supp.3d 484, 488 (W.D. Va. 2017) (citations omitted).
argues that the Indictment should be dismissed as to Count 2
because Hobbs Act Robbery cannot legally qualify as a
"crime of violence" under 18 U.S.C. § 924(c),
which is the basis for Jennings' firearm charge. Def. Br.
1. He asserts that "crime of violence" is defined
in two v;ays under 18 U.S.C. § 924(c), and he claims
that one definition does not encompass Hobbs Act Robbery and
that the other definition is unconstitutionally vague. Def.
18 U.S.C. § 924(c)
U.S.C. § 924(c) (1) (A) imposes criminal penalties upon
"any person who, during and in relation to any crime of
violence . . . for which the person may be prosecuted in a
court of the United States, uses or carries a firearm, or
who, in furtherance of any such crime, possesses a
firearm." 18 U.S.C. § 924(c)(1)(A). A "crime
of violence" is defined as a felony that:
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
(B) that by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the course of committing the offense.
Id. § 924(c)(3). The first clause is called
"the Force Clause" and the second is referred to as
"the Residual Clause."
The Force Clause
argues that the Force Clause does not encompass Hobbs Act
Robbery. Def. Br. 10-15. That argument, however, is
The Categorical Approach
Introduction to the Categorical Approach & Its
threshold matter involves the mode of analysis. When
assessing whether an offense qualifies as a crime of violence
under 18 U.S.C. § 924(c), courts typically apply what is
known as the "categorical approach." See United
States v. Evans, 848 F.3d 242, 245-46 (4th Cir. 2017).
"Under the categorical approach, [courts] analyze only
the elements of the offense in question, rather than the
specific means by which the defendant committed the
parties do not dispute that the categorical approach applies
to the Force Clause. And, although "[u]ntil very
recently, the categorical approach was limited to the
sentencing context," see United States v.
McDaniels, 147 F.Supp.3d 427, 431 (E.D. Va. 2015), that
has since changed. In recent years, the Fourth Circuit has
made clear that courts should apply the categorical approach
to the question of whether an offense is a crime of violence
at all stages of a proceeding. See, e.g.,
Evans, 848 F.3d at 244-48 (affirming the district
court's denial of a pre-trial motion to dismiss the
indictment based on the categorical approach); United
States v. Fuertes, 805 F.3d 485, 497-99, 501 (4th Cir.
2015) (reversing the district court's denial of a
post-trial motion for judgment of acquittal and remanding for
entry of judgment of acquittal based on the categorical
The Modified Categorical Approach
is a question as to whether the plain or "modified"
categorical approach governs here. As the Fourth Circuit has
Only in a "narrow range of cases," when a crime is
divisible, do we employ the "modified categorical
approach," in which a court may consider a limited set
of documents to determine the basis of a defendant's
conviction. A crime is divisible when it includes multiple
"alternative elements" that create different
versions of the crime, at least one of which would qualify
under the federal definition and at least one of which would
A crime is not divisible simply because it may be
accomplished through alternative means, but only when
alternative elements create distinct crimes.
United States v. Gardner, 823 F.3d 793, 802 (4th
Cir. 2016) (citations omitted). In applying the modified
categorical approach, courts may consider, inter
alia, "the charging document and jury
instructions." See United States v.
Lopez-Collazo, 824 F.3d 453, 463 (4th Cir. 2016)
(citations omitted); see also Gardner, 823 F.3d at
U.S.C. § 1951 qualifies for the modified categorical
approach. The statute states, in relevant part:
(a) Whoever in any way or degree obstructs, delays, or
affects commerce or the movement of any article or commodity
in commerce, by robbery or extortion or attempts or conspires
so to do, or commits or threatens physical violence to any
person or property in furtherance of a plan or purpose to do
anything in violation of this section ...