USA v. Ramirez

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
Plaintiff,
vs. 	No. 23-CR-1707-JCH
JOHNNY RAMIREZ,
Defendant.
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Defendant’s Rule 12 Motion to Dismiss Non-ACCA
Qualifying Convictions from the Indictment (Dkt. No. 91). Defendant asks the Court to conclude,
as a legal matter, that his Hobbs Act robbery conviction does not qualify as a predicate offense
under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), and to dismiss the ACCA
allegation from the indictment. The Court has carefully considered the motion, response, reply,
and applicable law. While Defendant’s position has support in authority from other circuits, the
outcome Defendant seeks is precluded by United States v. Castillo, 811 F.3d 342 (10th Cir. 2015),
superseded by regulation as recognized in United States v. O’Connor, 874 F.3d 1147, 1152 (10th
Cir. 2017). Castillo’s reasoning applies in this circuit even after Ocasio v. United States, 578 U.S.
282 (2016). Accordingly, following the reasoning set forth in Castillo, the Court concludes that in
this circuit Hobbs Act robbery qualifies as a violent felony under the ACCA and Defendant’s
motion should be denied.
I. 	BACKGROUND
A federal grand jury returned an indictment against Defendant Johnny Ramirez for being
a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924.
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Indictment 1, ECF No. 1. According to the indictment, prior to the time Mr. Ramirez committed
the offense charged in this case, he was convicted of the following felonies, which were all
committed on occasions different from one another: (1) possession of a controlled substance
(heroin), (2) aggravated burglary, (3) residential burglary, and (4) interference with commerce by
robbery and violence. Id. The latter felony conviction arose from Mr. Ramirez’s plea of guilty to
a Hobbs Act robbery in violation of 18 U.S.C. § 1951(a). See United States v. Ramirez, Judgment
(Dkt. No. 397) & Plea Agreement 2-4 (Dkt. No. 347), 1:15-cr-205-JCH.
Defendant filed a motion to dismiss the first, second, and fourth prior felony convictions
listed in the indictment, asserting they do not qualify as ACCA predicate offenses. Defendant
admits that his two prior convictions for residential burglary in violation of N.M.S.A. § 30-16-
3(A) qualify as violent felonies under the ACCA.1
The United States filed a response (Dkt. No. 97) opposing the motion. As an initial matter,
the Government asserts that, regardless of whether the prior convictions are qualifying ACCA
predicates, each felony is properly included as an element of the charged felon-in-possession
offense and should not be stricken from the indictment. As for which felonies qualify as ACCA
predicate offenses, the Government agrees with Mr. Ramirez that his conviction for possession of
a controlled substance under N.M.S.A. § 30-31-23(A) and his conviction for aggravated burglary
under N.M.S.A. § 30-16-4(B) do not constitute ACCA violent felonies. The United States instead
argues that Defendant’s conviction for Hobbs Act robbery is a violent felony under the ACCA.
1 Mr. Ramirez, however, does not concede that the residential burglary offenses occurred on separate occasions.
Determining whether “past offenses occurred on three or more different occasions is a fact-laden task.” Erlinger v.
United States, 602 U.S. 821, 834 (2024). The Supreme Court recently held that, because this factual determination
increases the prescribed range of penalties to which a defendant may be exposed, it must be resolved by a unanimous
jury beyond a reasonable doubt. Id.
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In reply, Defendant clarified that he “does not seek to strike his Hobbs Act conviction, or
the convictions referenced in his Motion, from the indictment for purposes of establishing the
predicate felonies under § 922(g).” Reply 13, Dkt. No. 102. Rather, he seeks to resolve the “legal
question of whether his Hobbs Act robbery conviction qualifies as an ACCA predicate[.]” Id.
Consequently, to the extent Defendant requested in his motion that the Court strike or dismiss
some of his prior convictions from the Indictment, the Court will deny the request to strike as
moot. To determine the legal question before it, the Court begins with the terms of the ACCA.
II. 	THE ARMED CAREER CRIMINAL ACT
As relevant here, the ACCA mandates that a defendant convicted under 18 U.S.C. § 922(g)
(felon in possession of a firearm) receives a fifteen-year minimum term of imprisonment if he has
three prior “violent felony” convictions, “committed on occasions different from one another.” 18
U.S.C. § 924(e)(1). The ACCA defines “violent felony” as “any crime punishable by imprisonment
for a term exceeding one year … that (i) has as an element the use, attempted use, or threatened
use of physical force against the person of another;” (called the “elements clause” or the “force
clause”), “or (ii) is burglary, arson, or extortion, …” (the “enumerated clause”). 18 U.S.C. §
924(e)(2)(B). See also United States v. Turrieta, 875 F.3d 1340, 1341 (10th Cir. 2017); United
States v. Hatley, 61 F.4th 536, 538 (7th Cir. 2023). “Whether a prior conviction satisfies the
ACCA’s violent felony definition is a legal question[.]” United States v. Titties, 852 F.3d 1257,
1263 (10th Cir. 2017). The government bears the burden to show a past offense qualifies as an
ACCA predicate offense. Id. at 1264-65.
For the analysis of the elements clause, courts look only to whether the offense “always
requires the government to prove—beyond a reasonable doubt, as an element of its case—the use,
attempted use, or threatened use of force.” United States v. Taylor, 596 U.S. 845, 850 (2022). This
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categorical approach precludes looking into how the defendant actually committed the crime. Id.
“If some conduct that would be a crime under the statute would not be a violent felony under the
ACCA, then any conviction under that statute will not count toward an ACCA enhancement,
regardless of whether the conduct that led to the defendant's prior conviction was in fact violent.”
Titties, 852 F.3d at 1265.
Under the enumerated clause, a conviction constitutes an ACCA violent felony “if the
elements match the generic form of an enumerated offense[.]” Turrieta, 875 F.3d at 1341. This
“categorical approach” arose from Taylor v. United States, 495 U.S. 575, 600 (1990). See Turrieta,
875 F.3d at 1342. In Taylor, the Supreme Court set forth an analysis that permits courts to look
“only to the statutory definitions of the prior offenses, and not to the particular facts underlying
those convictions” when determining whether offenses are violent felonies. 495 U.S. at 600. If the
statute underlying the prior conviction has a broader definition than the generic form of the
enumerated offense, the conviction would not constitute a violent felony under the enumerated
clause of the ACCA. See Turrieta, 875 F.3d at 1342. See also Descamps v. United States, 570 U.S.
254, 261 (2013) (“if the statute sweeps more broadly than the generic crime, a conviction under
that law cannot count as an ACCA predicate”). A mismatch of elements between the generic
offense and past offense of conviction saves the defendant from application of an ACCA sentence.
Mathis v. United States, 579 U.S. 500, 509 (2016).
III. 	ANALYSIS
The relevant portions of § 1951 of the Hobbs Act are as follows:
(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 shall be fined under this title or imprisoned not more than twenty
years, or both.
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(b) As used in this section –
(1) The term “robbery” means the unlawful taking or obtaining of personal
property from the person or in the presence of another, against his will,
by means of actual or threatened force, or violence, or fear of injury,
immediate or future, to his person or property, or property in his custody
or possession, or the person or property of a relative or member of his
family or of anyone in his company at the time of the taking or
obtaining.
18 U.S.C. § 1951 (emphasis added).2
Defendant argues that Hobbs Act robbery does not constitute a violent felony under the
ACCA because it can be accomplished through the use or threatened use of force against property,
whereas the ACCA defines a “violent felony” as having “an element the use, attempted use, or
threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i)
(emphasis added). According to Mr. Ramirez, because Hobbs Act robbery sweeps more broadly
than the ACCA, a conviction under that statute cannot constitute an ACCA predicate offense. In
support, Defendant relies on United States v. O’Connor, 874 F.3d 1147 (10th Cir. 2017), and seven
other circuit court cases that have held that Hobbs Act robbery is not a crime of violence within
the meaning of § 4B1.2(a)’s force clause in the United States Sentencing Guidelines (“U.S.S.G.”
or the “Guidelines”). Although Defendant acknowledges these cases are not binding, he urges the
Court to follow their reasoning, given the similarity in language between § 924(e)(2)(B) (violent
felony) and § 4B1.2(a) (crime of violence).
The Government asserts that those cases are not apt precisely because they consider the
Guidelines, not the ACCA. It acknowledges that the Tenth Circuit has yet to weigh in on the
question, but it urges the Court to follow the reasoning in United States v. Hatley, 61 F.4th 536
2 Section 1951(b)(2) defines “extortion” as “the obtaining of property from another, with his consent, induced by
wrongful use of actual or threatened force, violence, or fear, or under color of official right.” 18 U.S.C. § 1951(b)(2).
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(7th Cir. 2023), where the Seventh Circuit concluded that Hobbs Act robbery constitutes an ACCA
predicate violent felony offense. According to the Government, the Tenth Circuit’s analysis in
United States v. Castillo, 811 F.3d 342 (10th Cir. 2015), indicates it would follow the Seventh
Circuit’s approach in Hatley.
Defendant, in its reply, argues that the Court should not follow Hatley’s flawed reasoning,
which failed to properly apply the Supreme Court decisions of Ocasio v. United States, 578 U.S.
282 (2016), and Mathis v. United States, 579 U.S. 500 (2016). Defendant also directs the court to
other circuit authority applying a different approach from Hatley.
The Court begins its analysis at the Supreme Court with Ocasio and Mathis. It moves on
to circuit authority, first looking at the cases relied upon by the Government, Hatley and Castillo,
and then examining cases from the First, Fourth, Sixth, and Ninth Circuits, which follow a different
approach than Hatley and Castillo. Finally, the Court examines other relevant Tenth Circuit cases
to determine which side of the divide it currently falls.
A. Mathis and Ocasio
The Supreme Court in Mathis emphasized the importance of a statute of conviction having
the same, or narrower, elements as the ACCA. 579 U.S. at 504. To make that determination, a
court lines up the elements of the prior crime “alongside those of the generic offense and sees if
they match.” Id. at 505.
The same year, the Supreme Court addressed the elements of Hobbs Act extortion in
Ocasio. 578 U.S. at 297. There, a former police officer involved in a kickback scheme challenged
his conviction of obtaining money from shopowners under color of official right in violation of
the Hobbs Act, and of conspiring to violate the Hobbs Act. Id. at 283-84. The officer, as well as
other officers, when responding to an auto accident scene, would persuade car owners to send their
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vehicles to a local repair shop, the owners of which would then give payments to the officer for
the referral. Id. The officer argued his conspiracy conviction was fatally flawed because the
conspirators had not agreed to obtain money from a person who was not a member of the
conspiracy, rather, they conspired to take money from the shopowners, who were themselves
conspirators. See id. at 284, 287. The Supreme Court disagreed, concluding that conspiracy law
permitted a defendant to be convicted “of conspiring to violate the Hobbs Act based on proof that
he entered into a conspiracy that had as its objective the obtaining of property from another
conspirator with his consent and under color of official right.” Id. at 287. As relevant here, the
petitioner argued that the Supreme Court’s decision would allow the government to turn almost
every extortion case into a conspiracy because Hobbs Act extortion requires property to be
obtained with consent. See id. at 297. In rejecting the argument, the Supreme Court discussed the
“consent” element:
As used in the Hobbs Act, the phrase “with his consent” is designed to distinguish
extortion (“obtaining of property from another, with his consent,” 18 U.S.C. §
1951(b)(2) (emphasis added)) from robbery (“obtaining of personal property from
the person or in the presence of another, against his will,” § 1951(b)(1) (emphasis
added)). Thus, “consent” simply signifies the taking of property under
circumstances falling short of robbery, and such “consent” is quite different from
the mens rea necessary for a conspiracy.
Id. (bold added).
Defendant argues Ocasio’s analysis establishes that the “consent” element is meaningful
and distinctive, such that the elements of Hobbs Act robbery and extortion do not match. As
explained below, the circuits seem split on this argument.
B. The Hatley and Castillo decisions
The only case cited by the parties that squarely addresses this issue is the Seventh Circuit’s
decision in Hatley, which held that Hobbs Act robbery constitutes a “violent felony” under the
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ACCA. Hatley, 61 F.4th at 536. Beginning with the elements of Hobbs Act robbery, it noted that
the offense can be committed by using force against a person or property, and that all parties agreed
that robbery committed by using force against a person fits within the ACCA’s force clause. Id. at
538. Because Hobbs Act robbery also criminalizes using force against property, which the
ACCA’s force clause does not cover, the Seventh Circuit turned to the ACCA’s enumerated clause,
which lists extortion as a violent felony. Id. at 538-39. It then looked at Supreme Court law for the
elements of generic extortion: “obtaining something of value from another with his consent
induced by the wrongful use of force, fear, or threats.” Id. at 539 (quoting Scheidler v. Nat’l Org.
for Women, Inc., 537 U.S. 393, 410 (2003)) (internal brackets omitted).
When comparing the generic extortion elements with Hobbs Act robbery’s elements, the
Seventh Circuit acknowledged that “the definitions of each offense differ.” Id. Hobbs Act robbery
requires taking property from someone “against his will” by means of force to property, whereas
generic extortion is taking property from someone “with his consent induced by the wrongful use
of force.” Id. The Seventh Circuit nonetheless concluded that generic extortion encompasses
Hobbs Act robbery using force against property because the textual difference was “superficial”
and there was no “realistic probability” that a person “could commit a Hobbs Act robbery by using
force against property without also committing generic extortion.” Id. at 540.
In so holding, the Seventh Circuit said the “issue is close” and acknowledged that the
Supreme Court in Ocasio stated that the element of induced consent was “designed to distinguish”
extortion from robbery. Hatley, 61 F.4th at 539 (quoting Ocasio, 578 U.S. at 297). Hatley also
noted that both the Sixth and Fourth Circuits followed a different approach in finding a categorical
mismatch partly based on the distinction between a nonconsensual taking and taking with
wrongfully induced consent. Id. at 540 (discussing Raines v. United States, 898 F.3d 680 (6th Cir.
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2018), and United States v. Gardner, 823 F.3d 793, 802 n.5 (4th Cir. 2016), overruled on other
grounds by United States v. Dinkins, 928 F.3d 349, 355-56 (4th Cir. 2019)). Unpersuaded by these
cases, the Seventh Circuit explained that neither case “identified an example of a nonconsensual
taking that did not involve the victim’s induced consent, let alone an example that would apply to
Hobbs Act robbery committed using force against property.” Id. In diverging from the Fourth and
Sixth Circuits, it noted its approach was broadly consistent with the Tenth Circuit’s decision in
Castillo. Id.
Turning to Castillo, decided the year before Ocasio and Mathis, the Tenth Circuit
considered whether the defendant’s prior robbery conviction under California Penal Code section
211 was a “crime of violence” under the § 2L1.2 Guidelines sentencing enhancement. Castillo,
811 F.3d at 344. Section 2L1.2 defined “crime of violence” using a list of offenses, including
“robbery” and “extortion,” as well as any other offense “that has as an element the use, attempted
use, or threatened use of physical force against the person of another.” Id. at 345 (quoting U.S.S.G.
§ 2L1.2 cmt. n.1(B)(iii)). The Tenth Circuit, following the same categorical approach used in
ACCA cases, looked to the Section 211 elements: “Robbery is the felonious taking of personal
property in the possession of another, from his person or immediate presence, and against his will,
accomplished by means of force or fear.” Id. (quoting Cal. Penal Code § 211). “Fear” was defined
in the statute as being accomplished through threat of injury either to a person or property. Id.
Consequently, like Hobbs Act robbery, section 211 could be violated by threatening injury to a
person or to property. Acknowledging that the threat of injury to a person satisfied the generic
definition of robbery, the defendant argued that threats to property fell outside the generic crime
of robbery, and thus section 211 swept too broadly to constitute a crime of violence. Id. at 346.
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The Tenth Circuit, however, agreed with the government that a violation of section 211
based on threats to property corresponded with the generic crime of extortion – “obtaining
something of value from another with his consent induced by the wrongful use of force, fear, or
threats.” Id. at 346-47 (quoting Scheidler, 537 U.S. at 409-10). That generic extortion has the
element of consent induced by the wrongful use of force, fear, or threats, whereas section 211
robbery has the element of taking property against the victim’s will, did not alter the Tenth
Circuit’s conclusion. Id. at 348. The Tenth Circuit saw “no meaningful difference in this context
between a taking of property accomplished against the victim’s will and one where the victim’s
consent is obtained through force or threats,” because both crimes require that a defendant’s threats
induce the victim to give over property that he would not otherwise give. Id. The Tenth Circuit
also rejected the defendant’s argument that all of the criminal conduct contained in the offense of
conviction could only correspond to one enumerated crime of violence in § 2L1.2. Id. at 347.
Finding that limitation too narrow and without support in the text of § 2L1.2, the Tenth Circuit
noted that its approach requires consideration only of whether the statute of conviction
encompasses several different crimes, and if so, whether all those crimes are crimes of violence.
Id. at 348-49.
While Hatley is directly on point, Castillo is not. The question for this Court is whether
Castillo’s reasoning is binding on this Court as it considers whether Hobbs Act robbery is an
ACCA violent felony. Before answering that question, the Court turns to why other circuits have
followed a different approach and post-Castillo Tenth Circuit law.
C. 	Relevant cases from the First, Fourth, Sixth, and Ninth circuits
The parties do not cite other circuit authority directly on point as to whether Hobbs Act
robbery is an ACCA predicate offense. But, as Defendant argues, the Fourth, Sixth, and Ninth
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Circuits, when applying the categorical approach to other predicate offenses, have found that the
difference matters between taking property against the victim’s will and taking property with the
victim’s consent induced through force or threats. Cf. Raines v. United States, 898 F.3d 680, 683,
688-90 (6th Cir. 2018) (determining that prior conviction for collecting credit by extortionate
means in violation of 18 U.S.C. § 894(a)(1) did not constitute ACCA violent felony because
offense could be committed by non-violent criminal act causing harm to person’s reputation or
property, not meeting elements clause, and was not equivalent to generic crime of extortion);
United States v. Gardner, 823 F.3d 793, 802 n.5 (4th Cir. 2016) (disagreeing that North Carolina
common law robbery categorically matches generic extortion); United States v. Dixon, 805 F.3d
1193, 1196-98 (9th Cir. 2015) (concluding that California robbery conviction under section 211
was not ACCA violent felony).
Raines involved a prior conviction under 18 U.S.C. § 894(a)(1) – knowingly participating
or conspiring to use any extortionate means to collect or attempt to collect any extension of credit.
Raines, 898 F.3d at 688. Extortionate means was defined as “any means which involves the use,
or an express or implicit threat of use, of violence or other criminal means to cause harm to the
person, reputation, or property of any person.” Id. (quoting 18 U.S.C. § 891(7) (emphasis added)).
After first concluding that the statute did not fall within the ACCA’s elements clause because it
could be violated by a non-violent criminal act causing harm to reputation or property, the Sixth
Circuit determined that § 894(a)(1) encompassed non-consensual takings and, thus, criminalized
a broader swath of conduct than generic extortion. Id. at 689. The Sixth Circuit expressly
concluded that Castillo was incorrectly decided:
Castillo [does] not properly apply the categorical approach described in Mathis, but
we must. The difference between a taking against a victim's will and a taking with
the victim's consent may not be a “meaningful one” in the Tenth Circuit's view, but
a difference nevertheless exists that suffices under the Supreme Court's teachings
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on how we must interpret the ACCA. Under the categorical approach, “if the crime
of conviction covers any more conduct than the generic offense, then it is not [an
enumerated offense].” Mathis, 136 S.Ct. at 2248. Here, the generic definition of
extortion requires a victim's induced consent. Section 894(a)(1) does not. Section
894(a)(1) therefore does not qualify as a generic extortion offense under the
categorical approach.
Raines, 898 F.3d at 689-90.
In Gardner, the Fourth Circuit held that North Carolina common law robbery, which is the
felonious, non-consensual taking of property from the person or presence of another by means of
violence or fear, is not categorically an ACCA violent felony. See 823 F.3d at 797, 802. As relevant
here, the Fourth Circuit noted:
North Carolina common law robbery involves the non-consensual taking of money
or property from another, while the generic crime of extortion is defined as
“obtaining something of value from another with his consent induced by the
wrongful use of force, fear, or threats.” Scheidler v. Nat'l Org. for Women, Inc., 537
U.S. 393, 409, 123 S.Ct. 1057, 154 L.Ed.2d 991 (2003) (citation omitted); see also
18 U.S.C. § 1951(b)(2) (defining Hobbs Act extortion). The element of consent “is
the razor's edge that distinguishes extortion from robbery.” United States v. Zhou,
428 F.3d 361, 371 (2d Cir.2005). Notably, both North Carolina and the federal
government have codified extortion as a crime distinct from robbery. See N.C. Gen.
Stat. § 14–118.4 (2015); 18 U.S.C. § 1951(b)(1), (2).
Id. at 802 n.5.
Turning to Dixon, the Ninth Circuit concluded that some violations of California Penal
Code § 211 would not satisfy the ACCA’s elements clause in part because the state statute
encompasses the accidental use of force. Dixon, 805 F.3d at 1197. It also explained that, because
§ 211 covers non-consensual takings, it failed the definition of generic extortion, which requires
the taking of the property to be consensual. See id. at 1196-97.
More recently, the First Circuit expressly diverged from the reasoning of the Seventh
Circuit in Hatley and the Tenth Circuit in Castillo, finding that the line between induced consent
and a taking against someone’s will is not meaningless. Rodríguez-Méndez v. United States, 134
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F.4th 1, 11 (1st Cir. 2025). In Rodríguez-Méndez, the First Circuit considered whether motor
vehicle robbery in violation of Article 173B of the Puerto Rico penal code was an ACCA violent
felony. See id. at 3-4. Article 173B prohibits carjacking against the victim’s will through the use
of violence or intimidation. See id. at 8-9. Because Puerto Rico law defined intimidation to include
threats against property, the First Circuit concluded that the law swept more broadly than the force
clause. See id. at 9. It also rejected the government’s argument that carjacking arising from threats
to property constituted the generic crime of extortion. See id. at 10-11. Relying partially on Ocasio,
the First Circuit explained that “extortion's essential feature that differentiates it from robbery ‘is
[ ] that the victim retained some degree of choice in whether to comply with the extortionate threat,
[no matter how] much of a Hobson's choice that may [have been].’” Id. at 10 (quoting United
States v. Muñoz-Martínez, 79 F.4th 44, 53 (1st Cir. 2023)). The First Circuit reasoned that,
although a victim could be forced to consent through intimidation toward property, “a victim could
choose to resist and thus the perpetrator would have appropriated the vehicle without the victim’s
consent.” Id. at 10-11. Because it found that not all ways of violating Article 173B constitute
generic extortion, it concluded the statute does not constitute an ACCA predicate under the
enumerated clause. Id. at 10-11.
D. 	Post-Castillo Tenth Circuit case law
Defendant additionally argues that the Tenth Circuit’s decision in United States v.
O’Connor, 874 F.3d 1147 (2017), indicates it would rule that Hobbs Act robbery sweeps more
broadly than the ACCA definition. In O’Connor, the Tenth Circuit examined whether Hobbs Act
robbery constitutes a “crime of violence” within the meaning of U.S.S.G. § 4B1.2(a)(2). Id. at
1149-50. Defendant rightly points out that, because of the similarity between the ACCA “violent
felony” and the Guidelines “crime of violence” definitions, the Tenth Circuit often applies the
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reasoning of § 4B1.1(2)(a) cases to ACCA cases. See, e.g., United States v. Tiger, 538 F.3d 1297,
1298 (10th Cir. 2008). Like the ACCA, § 4B1.2(a)(2) contains an enumerated offense clause and
an elements clause. O’Connor, 874 F.3d at 1150. The elements clause of § 4B1.2(a)(1) is identical
to the ACCA’s elements clause. Compare U.S.S.G. § 4B1.2(a)(1), with 18 U.S.C. § 924(e)(2)(B).
Section 4B1.2(a)(2), however, contains more listed offenses than the ACCA, to include robbery
and extortion. Compare U.S.S.G. § 4B1.2(a)(2), with 18 U.S.C. § 924(e)(2)(B).
The government in O’Connor contended that Hobbs Act robbery fit categorically within
two different offenses – robbery and extortion. Id. at 1150. New guidelines, however, had come
into effect post-Castillo that defined extortion more narrowly, so the Tenth Circuit looked to the
Guidelines’ definition, rather than the generic one. See id. at 1150, 1152, 1154 n.11. The
Guidelines defined “extortion” as “obtaining something of value from another by the wrongful use
of (i) force, (ii) fear of physical injury, or (iii) threat of physical injury.” Id. at 1150 (quoting
U.S.S.G. Supp. to App. C, Amend. 798 at 131 (Nov. 1, 2016)). The Sentencing Commission
explained that the amendment narrowed extortion to offenses having an element of force or threats
of physical injury, as opposed to non-violent threats such as injury to reputation. Id. at 1156 &
n.16. After determining that Hobbs Act robbery (which includes threats to property) does not
categorically fall within generic robbery (which does not include threats to property), the Tenth
Circuit turned to the elements of Guidelines extortion. Id. at 1154-55. It found the new extortion
definition’s phrase “physical injury” ambiguous as to whether it included threats to property. Id.
at 1156-57. On the one hand, it reasoned that “physical injury” generally means “bodily injury,”
but it found the opposite conclusion reasonable too, because the Commission was silent as to
whether the definition covered injury to property and states originally enacted extortion statutes to
fill the gaps left by robbery statutes to cover threats to destroy a victim’s property. See id. at 1157.
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But, applying the rule of lenity, the Tenth Circuit ruled that the Guidelines extortion definition
excluded threats to property, and thus Hobbs Act robbery does not categorically qualify as a crime
of violence under the enumerated offense clause of the Guidelines. Id. at 1158.
Although the Guidelines amendment changed the viability of Castillo as to which extortion
definition to apply when conducting a categorical approach under the Guidelines, nothing in
O’Connor suggests that the Tenth Circuit would not follow the approach in Castillo in future cases
applying the generic extortion definition. See O’Connor, 874 F.3d at 1152, 1154 & n.7, 11, 13
(discussing and distinguishing Castillo, but not overturning its approach). The Court agrees with
the Government that, because O’Connor construed a narrower extortion definition than generic
extortion, the case is of limited utility when construing the ACCA.
Significantly, in an unpublished decision filed after Mathis and O’Connor, a Tenth Circuit
panel discussed the continuing viability of the analytical approach in Castillo. See United States v.
Duran, 754 F. App’x 739, 742-47 (10th Cir. Nov. 2, 2018).3 In Duran, the petitioner argued that
his prior Oklahoma robbery-by-fear convictions, which could be committed via fear of injury to a
person or fear of injury to property, did not constitute ACCA violent felonies. Id. at 740-41. 4
Disagreeing, and relying on Castillo, the district court concluded that robbery by fear of injury to
a person satisfied the ACCA’s elements clause while robbery by fear of injury to property
corresponded to the enumerated offense of extortion. Id. at 741-42. On appeal, the petitioner
argued that the court impermissibly divided robbery by fear into two separate offenses and then
improperly classified each offense as a violent felony under a separate ACCA clause. Id. at 742.
3 A court may rely on an unpublished opinion to the extent its reasoned analysis is persuasive in the case before it. See
CTA10 Rule 32.1(A) (“Unpublished decisions are not precedential, but may be cited for their persuasive value.”).
4 Oklahoma’s robbery-by-fear statute is structured similarly to California’s robbery statute at issue in Castillo: “Okla.
Stat. Ann. tit. 21, § 791 (defining robbery, in relevant part, as ‘a wrongful taking of personal property in the possession
of another, from his person or immediate presence, and against his will, accomplished by means of ... fear’), id. § 794
(defining requisite fear to include both fear of injury to person and fear of injury to property).” Duran, 754 F. App’x
at 740.
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Rejecting this contention, the Tenth Circuit explained that the ACCA’s use of “or” to
separate the elements and enumerated clauses shows that Congress intended “to express that an
offense constitutes a violent felony so long as it (1) satisfies the ACCA's elements clause or (2)
satisfies the ACCA's enumerated-offenses clause or (3) satisfies both the ACCA's elements clause
and its enumerated-offenses clause.” Id. at 744-45. It upheld the district court’s division of the
offense of conviction into two separate crimes and application of a different ACCA clause to each,
because the approach focused solely on the elements of the offense and asked whether any conduct
that would be a crime under the statute would not be a violent felony under the ACCA. Id. at 745.
The Duran court then looked at whether robbery by fear of injury to property is the same as generic
extortion. Id.
In its analysis, the Tenth Circuit recognized that the consent of the victim, while an element
of generic extortion, is not an element of robbery by fear. Id. at 746. It also agreed with the
petitioner that consent “is precisely what distinguishes robbery from extortion under Oklahoma
law.” Id. n.5. The Duran court nevertheless disagreed with the petitioner’s argument that robbery
by fear of injury to property covers a broader swath of conduct than generic extortion, finding the
argument foreclosed by Castillo:
There, the defendant asserted that California robbery by fear of injury to property
doesn't correspond with generic extortion because the former “requires a taking of
property against the victim's will, whereas” the latter “requires a taking ‘with [the
victim's] consent.’” We rejected that argument, stating, “We see no meaningful
difference in this context between a taking of property accomplished against the
victim's will and one where the victim's consent is obtained through force or
threats.” Critically, we were unable to discern any such “meaningful difference”
despite the fact that California—like Oklahoma—treats the victim's consent as the
distinguishing characteristic between robbery and extortion.
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Id. at 746. The Duran court concluded that it remained “bound by Castillo” to reject this consent
argument and held that “robbery by fear of injury to property categorically corresponds to generic
extortion and thus satisfies the enumerated-offenses clause.” Id. at 747.5
E. Based on Tenth Circuit law, Hobbs Act robbery is an ACCA violent felony
Hobbs Act robbery can be committed by using force or threats of force to a person or by
using force or threats of force against property. See 18 U.S.C. § 1951(b)(1). Hobbs Act robbery
committed by using force against a person satisfies the elements clause of the ACCA because it
“has an element the use, attempted use, or threatened use of physical force against the person of
another.” Compare 18 U.S.C. § 1951(b)(1), with 18 U.S.C. § 924(e)(2)(B)(i); see also Duran, 754
F. App’x at 742-45.
Based on the reasoning of Castillo and Duran, the Court concludes that in this circuit
Hobbs Act robbery committed by using force or threats of force against property is encompassed
by generic extortion in the ACCA’s enumerated-offense clause. Because that approach focuses on
elements, not facts, it does not run afoul of Mathis. As Duran explained, the Tenth Circuit in
Castillo decided there was no meaningful difference between taking property by consent induced
by force or threats to property and taking property against a person’s will using force or threats to
property. It essentially concluded in both Castillo and Duran that those elements matched. It held
this despite that California and Oklahoma treat the victim’s consent as the distinguishing
characteristic between robbery and extortion. Accordingly, that the Supreme Court in Ocasio
5 The United States relies on another Tenth Circuit case decided after Castillo, United States v. Melgar-Cabrera, 892
F.3d 1053 (10th Cir. 2018), arguing it provides a clean, analogous route for the Court’s decision. At issue in Melgar-
Cabrera was whether Hobbs Act robbery constituted a crime of violence under 18 U.S.C. § 924(c)(3). Id. at 1060.
Unlike the ACCA, § 924(c)(3)’s elements clause defines a “crime of violence” as “has as an element the use, attempted
use, or threatened use of physical force against the person or property of another.” Id. (quoting 18 U.S.C. § 924(c)(3))
(italics added). The Court agrees with Defendant that, because § 924(c)(3)’s elements clause includes force against
property, and the ACCA’s elements clause does not, the reasoning in Melgar-Cabrera offers little insight into whether
Hobbs Act robbery is a “violent felony” under the ACCA.
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likewise said that the victim’s consent is the distinguishing feature between Hobbs Act robbery
and Hobbs Act extortion is not enough to demonstrate that the Tenth Circuit would alter its
reasoning that there is no “meaningful difference” between those elements in this context.
The First, Fourth, Sixth, and Ninth Circuits follow a different approach. The First and Sixth
Circuits expressly stated that they were not in accord with the Tenth Circuit’s decision in Castillo,
confirming this Court’s view that the Tenth Circuit’s approach in Castillo remains in effect in this
circuit. As the Tenth Circuit stated in Duran, this Court remains bound by Castillo, and it cannot
forge a different path based on other circuit authority. Unlike the First, Fourth, Sixth, and Ninth
Circuits, the Tenth Circuit (like the Seventh Circuit), when comparing the elements of taking
property by consent induced by force or threats to property and taking property against the victim’s
will using force or threats to property, concludes that they are equivalent for all practical purposes.
It is for the Tenth Circuit, not this Court, to reconsider the wisdom of that analysis.
As for Defendant’s arguments concerning why Hatley was wrongly decided, this Court
bases its decision on the Tenth Circuit’s reasoning in Castillo and Duran, not Hatley. Nevertheless,
the Court will address Defendant’s arguments to the extent they implicate the Tenth Circuit’s
reasoning. Defendant first argues that Hatley was wrong in dividing Hobbs Act robbery into two
separate crimes. However, like the Seventh Circuit, the Tenth Circuit has approved the approach
that allows a court to examine separately whether robbery by force against a person and robbery
by force against property satisfy one or more enumerated offenses or one or one or more ACCA
clauses. See Duran, 754 F. App’x at 744-45 (explaining why “district court permissibly divided
the offense into two separate crimes and applied a different ACCA clause to each”); Castillo, 811
F.3d at 347 (“the plain language [of § 2L1.2] does not limit the comparison of the crime of
conviction to only one of the enumerated crimes of violence”). Defendant also argues that Hatley
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impermissibly found the textual difference “superficial” and improperly applied the “realistic
probability” test, a test the Tenth Circuit refused to apply in O’Connor. Indeed, the Tenth Circuit
in O’Connor gave reasons to doubt the application of the realistic probability test. See O’Connor,
874 F.3d at 1154 (noting that Mathis Court did not apply or mention realistic probability test,
instead looking at the disparity in plain language of statute and ACCA, rather than requiring
instances of actual prosecutions for the means that did not satisfy ACCA). Castillo discussed the
“realistic probability” test at the end of the opinion in rejecting the defendant’s attempt to set forth
hypothetical crimes that would be punishable under section 211 but not generic extortion. See
Castillo, 811 F.3d at 349. But the Tenth Circuit’s “no meaningful difference” conclusion did not
arise from an analysis of the “realistic probability” test. See id. at 348. Instead, it found the different
expressions (taking property against the victim’s will versus taking property with the victim’s
consent induced by force, fear, or threats) equivalent because both crimes require the defendant’s
threats to induce the victim to give up his property. Id. This conclusion was based on its
interpretation of the elements. Even after O’Connor, Castillo’s reasoning continues to bind the
Court.
Finally, Defendant argues that, to the extent the Court finds an ambiguity exists, it should
apply the rule of lenity. Neither Castillo nor Duran found an ambiguity when examining similar
statutory terms. Neither does the Court. Accordingly, the rule of lenity is not applicable.
IV. 	CONCLUSION
Following the reasoning of Castillo and Duran, this Court concludes that, in this circuit,
Hobbs Act robbery is a “violent felony” under the ACCA because robbery committed using force
against a person satisfies the elements clause and robbery committed using force against property
constitutes generic extortion in the enumerated clause.
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IT IS THEREFORE ORDERED that Defendant’s Rule 12 Motion to Dismiss Non-ACCA
Qualifying Convictions from the Indictment (Dkt. No. 91) is DENIED.
_________________________________________
SENIOR UNITED STATES DISTRICT JUDGE
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