PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 21-1784
___________
UNITED STATES OF AMERICA,
v.
GEORGE STONEY, a/k/a/ Butchy,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(District Court No. 1-14-cr-00015-002)
District Judge: Honorable Sylvia H. Rambo
__________
Argued November 9, 2022
(Filed: March 10, 2023)
Before: JORDAN, RESTREPO, and SCIRICA, Circuit Judges
Daryl F. Bloom, Esq.
OFFICE OF UNITED STATES ATTORNEY
Middle District of Pennsylvania
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
Stephen R. Cerutti, II, Esq.
OFFICE OF UNITED STATES ATTORNEY
Middle District of Pennsylvania
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
Carlo D. Marchioli, Esq. [Argued]
OFFICE OF UNITED STATES ATTORNEY
Middle District of Pennsylvania
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
Counsel for Appellee
Frederick W. Ulrich, Esq. [Argued]
OFFICE OF FEDERAL PUBLIC DEFENDER
100 Chestnut Street
Suite 306
Harrisburg, PA 17101
Counsel for Appellant George Stoney
2
__________
OPINION OF THE COURT
_________
RESTREPO, Circuit Judge
Armed robbery is a violent crime. Accepting
responsibility by a guilty plea does not diminish its
seriousness. And it certainly does not permit a defendant to
downplay the crime committed. George Stoney admitted to
pointing a loaded firearm at victims during a robbery with two
other masked men. The robbery was successful. We reject his
attempt to minimize the crime he committed to avoid an
additional felony conviction under § 924(c)(1)(A).
I. BACKGROUND
Stoney appeals the District Court’s denial of his second
or successive motion pursuant to 28 U.S.C. § 2255, challenging
his conviction for the Use of a Firearm During a Crime of
Violence in violation of 18 U.S.C. § 924(c)(1)(A). In 2014,
Stoney pleaded guilty and admitted to committing a completed
Hobbs Act robbery in violation of 18 U.S.C. § 1951(a). But he
now argues that we should treat his crime as an attempted
Hobbs Act robbery, which fails to qualify as a predicate crime
of violence under § 924(c)(3)(A) following the recent decision
in United States v. Taylor, 142 S. Ct. 2015, 2021 (2022).
Alternatively, he contends that even if we find he committed a
completed Hobbs Act robbery, his conviction, based on
3
Pinkerton 1 liability and aiding and abetting, does not qualify as
a crime of violence under § 924(c)(3)(A).
A. STATUTORY FRAMEWORK
To evaluate Stoney’s appeal, we must look at § 1951
and § 924(c) generally. If a person is convicted of Hobbs Act
robbery, he or she faces up to 20 years in prison. See 18 U.S.C.
§ 1951(a). If the offense also qualifies as a crime of violence
under § 924(c)(3)(A), the person faces an additional felony
conviction and further punishment for using a firearm during
the crime. See 18 U.S.C. § 924(c)(1)(A); see also Taylor, 142
S. Ct. at 2019. Section 924(c) requires the government to prove
that the person committed a qualifying predicate crime of
violence. United States v. Galati, 844 F.3d 152, 155 (3d Cir.
2016). Nevertheless, a defendant need not be separately
charged with or convicted of the predicate crime. Id. The
statute defines a “crime of violence” to be “an offense that is a
felony and has as an element the use, attempted use, or
threatened use of physical force against the person or property
of another.” 18 U.S.C. § 924(c)(3)(A). This clause is known
as the “elements clause.” 2
1
328 U.S. 640 (1946).
2
In 2019, the Supreme Court ruled that § 924(c)(3)(B), also
known as the “residual clause” and previously an alternate
avenue for defining a “crime of violence,” is unconstitutionally
vague. See United States v. Davis, 139 S. Ct. 2319, 2323–24
(2019) (holding that the language of the residual clause was
unconstitutionally vague and violated the Due Process Clause).
Therefore, now only § 924(c)(3)(A), the “elements clause,”
contemplates whether a felony offense qualifies as a crime of
violence.
4
Whether or not a crime qualifies as a “crime of
violence” under § 924(c)(3)(A) carries significant
consequences. It can affect whether a person is eligible for
early release. 18 U.S.C. § 3621(e)(2)(B); see also Gardner v.
Grandolsky, 585 F.3d 786, 792 (3d Cir. 2009). It can affect
inmate status and incarceration placement. 18 U.S.C. §
3621(b)(2); see also Woodall v. Fed. Bureau of Prisons, 432
F.3d 235, 239 (3d Cir. 2005). And it can increase a federal
sentence because of the mandatory minimum. See Alleyne v.
United States, 570 U.S. 99, 108 (2013) (holding that the
elements of a § 924(c) conviction must be submitted to a jury
because mandatory minimum sentences increase the penalty
for a crime). At its core, the elements clause is a powerful tool
used to deter and punish the use of firearms during violent
crimes.
The Supreme Court recently held that an attempted
Hobbs Act robbery does not qualify as a crime of violence
under § 924(c)(3)(A). Taylor, 142 S. Ct. at 2021. For that
reason, Stoney urges us to construe his conviction as an
attempted robbery. But the record is clear: Stoney committed
a completed Hobbs Act robbery.
B. FACTUAL BACKGROUND
On December 3, 2013, three armed men in black ski
masks entered a Cracker Barrel restaurant in Harrisburg,
Pennsylvania with one goal: to steal money. To achieve their
goal, the men robbed the victims at gunpoint. Stoney and his
co-defendants stashed over $8,000 in a Cracker Barrel bag, but
police were tipped off when a victim hiding in the bathroom
called 911. The robbers fled, but were ultimately arrested in a
nearby wooded area. Police discovered a nine-millimeter
handgun approximately ten feet away from where Stoney was
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found. Stoney’s gun was loaded with 17 rounds and had one
round in the chamber. The stolen cash and two other guns were
also recovered. When interviewed by the police, Stoney
admitted his involvement and identified his co-defendants.
As a result, a federal grand jury charged Stoney with
Hobbs Act robbery and the Use of a Firearm During a Crime
of Violence. See 18 U.S.C. §§ 2; 1951; 924(c)(1)(A). The §
924(c) firearm charge referenced the Hobbs Act robbery as the
predicate offense, based on two theories of liability: Pinkerton
and aiding and abetting. The indictment did not specify the
charge as a completed Hobbs Act robbery, but Stoney admitted
on record to committing a completed gunpoint robbery. He
now urges us to ignore reality and invent ambiguity where
there is none.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction over Stoney’s
motion to vacate, set aside or correct his sentence pursuant to
28 U.S.C. § 2255. We have appellate jurisdiction under 28
U.S.C. § 2253(a) and (c). We review the District Court’s legal
conclusions with regard to Stoney’s § 2255 motion de novo
and its factual findings for clear error. United States v.
Prophet, 989 F.3d 231, 234 (3d Cir. 2021).
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III. DISCUSSION
We must first discern what Stoney’s predicate crime of
violence is, and then whether that offense qualifies as a crime
of violence under § 924(c)(3)(A). We address each issue in
turn.
A. PREDICATE OFFENSE FOR § 924(C) GUILTY PLEA
Stoney argues that his § 924(c) conviction fails to
identify whether the predicate crime of violence is a completed
or attempted Hobbs Act robbery. According to Stoney, he
pleaded guilty only to the minimum conduct criminalized by
the statute, specifically the now-invalid predicate of attempted
Hobbs Act robbery. We disagree.
The inquiry into the underlying predicate crime of
violence is fact-based. Without knowing what the crime is, we
cannot determine if it qualifies as a crime of violence.
Therefore, we must look not only at the indictment but also at
the “plea agreement and the attendant factual proffer” to
determine the predicate crime of violence for a § 924(c) guilty
plea. See In re Navarro, 931 F.3d 1298, 1302 (11th Cir. 2019)
(noting that Navarro’s “plea agreement and the attendant
factual proffer more broadly establish that his § 924(c) charge
was predicated both on conspiracy to commit Hobbs Act
robbery and drug-trafficking crimes.”).
Several other Circuit courts have addressed this issue. 3
Those courts have also held that the record may establish the
3
See United States v. Cannon, 987 F.3d 924, 949–50 (11th Cir.
2021) (finding the defendant committed a § 924(c) predicate
offense based on the “complete factual record” including “trial
testimony and recordings”); United States v. Crawley, 2 F.4th
257, 267 (4th Cir. 2021) (looking to the statement of facts
7
predicate crime for a § 924(c) guilty plea. We join those
Circuits.
The record here is clear: Stoney committed a completed
Hobbs Act robbery. At his change of plea proceeding, he
admitted to using a loaded gun during the holdup. Stoney and
his co-defendants stole over $8,000 from the restaurant. There
is therefore no question that Stoney’s § 924(c) conviction is
predicated on a completed Hobbs Act robbery, which “has as
an element the . . . use of physical force against the person . . .
of another.” § 924 (c)(3)(A). We refuse to treat his conviction
as an attempted robbery.
B. COMPLETED HOBBS ACT ROBBERY
Alternatively, Stoney argues that his conviction, based
on Pinkerton liability and accomplice liability, does not qualify
under § 924(c)(3)(A). We disagree. We need not address
Pinkerton or accomplice liability, because he was not an aider
or abettor, nor was he merely a co-conspirator. Since there is
no question that Stoney personally committed a completed
Hobbs Act robbery, these theories of liability are not relevant.
We therefore join the unanimous Circuit authority in holding
that a completed Hobbs Act robbery qualifies as a crime of
accompanying the plea agreement to determine the predicate
crime); In re Navarro, 931 F.3d 1298, 1302 (11th Cir. 2019)
(looking to the plea agreement and attendant factual proffer,
which established the § 924(c) predicate crime); United States
v. Hunter, 887 F.2d 1001, 1003 (9th Cir. 1989) (“Hunter’s
admission to the court that he possessed 88 grams of cocaine
and had trafficked in the drug, the government’s proffer of
proof to that effect, and Hunter’s guilty plea were sufficient to
establish Hunter’s guilt of a drug trafficking offense as an
element of the offense under section 924(c)(1).”).
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violence under § 924(c)(3)(A), a question left open after
Taylor. 142 S. Ct. at 2020 (“Whatever one might say about
completed Hobbs Act robbery, attempted Hobbs Act robbery
does not satisfy the elements clause.”) (emphasis in original).
To determine whether a particular offense qualifies as a
crime of violence under § 924(c)(3)(A), we must apply the
categorical approach. See Taylor, 142 S. Ct. at 2020. The
categorical approach precludes any inquiry into the underlying
facts or analysis of how a defendant committed the crime.
Instead, courts “‘look only to the statutory definitions’—i.e.,
the elements—of a defendant’s [ ] offense[], and not ‘to the
particular facts underlying [the offense].’” Descamps v.
United States, 570 U.S. 254, 261 (2013) (emphasis in original)
(quoting Taylor v. United States, 495 U.S. 575, 600 (1990)).
Therefore, “[t]he only relevant question is whether the federal
felony at issue 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.” Taylor, 142 S. Ct.
at 2020. Here, “to win a conviction for a completed robbery
the government must show that the defendant engaged in the
‘unlawful taking or obtaining of personal property from the
person . . . of another, against his will, by means of actual or
threatened force.’” Id. (quoting 18 U.S.C. § 1951(b))
(emphasis in original).
Prior to the Taylor decision, this Court held that a
completed Hobbs Act robbery is a valid § 924(c) predicate.
United States v. Walker, 990 F.3d 316, 326 (3d Cir. 2021),
vacated on other grounds, 142 S. Ct. 2015, 2021 (2022).4 That
4
See also United States v. Monroe, 837 F. App’x 898, 900–01
(3d Cir. 2021); United States v. Rodriguez, 770 F. App’x 18,
23 (3d Cir. 2019); United States v. McKelvey, 773 F. App’x 74,
75 (3d Cir. 2019); United States v. Styles, No. 19-3217, 2022
9
finding was also unanimous among our sister Circuits. 5 Taylor
does not change our position.
The Hobbs Act criminalizes a robbery that “obstructs,
delays or affects” interstate commerce, 18 U.S.C. § 1951(a),
by “the unlawful taking or obtaining of personal property from
the person . . . by means of actual or threatened force, or
violence, or fear of injury.” § 1951(b); see also Taylor, 142 S.
Ct. at 2020. The key inquiry in applying the categorical
approach here is whether a completed Hobbs Act robbery
requires proof of “the use, attempted use, or threatened use of
physical force.” § 924(c)(3)(A). It does. This is the crucial
difference between attempted and completed robbery.
Three other Courts of Appeals—the Fourth, Eighth, and
Tenth Circuits—have addressed this issue post-Taylor and
found that a completed Hobbs Act robbery qualifies as a crime
WL 34126 at *3 (3d Cir. Jan. 4, 2022); United States v. White,
678 F. App’x 80, 82 (3d Cir. 2017); United States v. McLean,
702 F. App’x 81, 89 (3d Cir. 2017).
5
See United States v. Torres-Correa, 23 F.4th 129, 133 (1st
Cir. 2022); United States v. Dominguez, 954 F.3d 1251, 1261
(9th Cir. 2020), vacated on other grounds, 142 S. Ct. 2015
(2022), aff’d in part by 48 F.4th 1040 (9th Cir. 2022); United
States v. Mathis, 932 F.3d 242, 266 (4th Cir. 2019); United
States v. Jones, 919 F.3d 1064, 1072 (8th Cir. 2019); United
States v. Melgar-Cabrera, 892 F.3d 1053, 1060–66 (10th Cir.
2018); United States v. Hill, 890 F.3d 51, 60 (2d Cir. 2018);
United States v. Fox, 878 F.3d 574, 579 (7th Cir. 2017); United
States v. Gooch, 850 F.3d 285, 291–92 (6th Cir. 2017); United
States v. Buck, 847 F.3d 267, 274–75 (5th Cir. 2017); In re St.
Fleur, 824 F.3d 1337, 1340–41 (11th Cir. 2016).
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of violence. 6 We agree and hold that a completed Hobbs Act
robbery is categorically a crime of violence under §
924(c)(3)(A).
IV.
Stoney’s efforts to escape punishment fall short. He
cannot avoid the inevitable: using a gun during a violent crime
will earn a defendant extra time. His § 924(c) guilty plea
clearly establishes that his conviction is predicated on a
completed Hobbs Act robbery, which is a crime of violence.
We will affirm.
6
See United States v. Baker, 49 F.4th 1348, 1360 (10th Cir.
2022) (holding that Taylor does not implicate the court’s
previous holding in United States v. Melgar-Cabrera, 892 F.3d
1053, 1060–66 (10th Cir. 2018), and a completed Hobbs Act
robbery qualifies as a crime of violence); United States v.
Moore, No. 22-1899, 2022 WL 4361998, at *1 (8th Cir. Sept.
21, 2022) (holding in an unpublished, per curiam decision that
although “the Supreme Court recently held that attempted
Hobbs Act robbery is not a crime of violence, the plea
agreement established that [defendant] pleaded guilty to
completed Hobbs Act robbery, which is a crime of violence”)
(internal citation omitted); United States v. McRae, No. 21-
4186, 2022 WL 3715084, at *2 (4th Cir. Aug. 29, 2022)
(holding in an unpublished, per curiam decision “that both
Hobbs Act robbery and armed bank robbery constitute crimes
of violence”); United States v. Whitfield, No. 19-4173, 2022
WL 2526670, at *1 (4th Cir. July 7, 2022) (holding in an
unpublished, per curiam decision that “this court has firmly
established that Hobbs Act Robbery is a valid § 924(c)
predicate”).
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