October 28, 2016
from the United States District Court for the Eastern
District of Wisconsin. No. 15-CR-51 - J.P. Stadtmueller,
Ripple, Kanne, and Rovner, Circuit Judges.
December 23, 2014, Rivera and three others robbed a Milwaukee
bar called the Brew City Tap. They all wore masks; and three
of them were armed, two with BB guns and one with a
.40-caliber handgun. They left with $857.25.
days later, they robbed the Sky Zone Indoor Trampoline Park.
This robbery was more successful than the prior one, netting
them over $12, 000.
fifty businesses throughout the Milwaukee area suffered
similar armed robberies between October 2013 and January
2015. Although various cooperating witnesses implicated
Rivera in thirty of those robberies, the government sought a
reckoning for only five of them. To that end, the government
charged Rivera with five counts of Hobbs Act robbery under 18
U.S.C. §§ 1951(a) and 2. The government also took
the position that Hobbs Act robbery constitutes a "crime
of violence" as defined under 18 U.S.C. §
924(c)(3). So in addition to the five Hobbs Act robbery
counts, the government tacked on five counts of brandishing a
firearm in furtherance of a crime of violence under 18 U.S.C.
§§ 924(c) and 2. Rivera agreed to plead guilty to
two of the crime-of-violence counts in exchange for the
government dropping the other charges. Judge Stadtmueller
accepted Rivera's guilty plea on November 12, 2015.
February 4, 2016, Judge Stadtmueller sentenced Rivera to the
mandatory minimum of thirty-two years'
imprisonment. He also imposed a five-year term of
supervised release, which he said he was "obliged"
to do. (R. 196 at 24.)
timely appealed his convictions and sentence, raising two
issues: (1) whether Hobbs Act robbery qualifies as a
"crime of violence" under § 924(c); and (2)
whether Judge Stadtmueller committed procedural error by
saying he was "obliged" to impose a five-year
respect to the first issue, we have recently decided that
Hobbs Act robbery indeed qualifies as a "crime of
violence" under § 924(c) because it "has as an
element the use, attempted use, or threatened use of physical
force against the person or property of another."
United States v. Anglin, No. 15-3625, 2017 WL
359666, at *6-7 (7th Cir. Jan. 25, 2017) (quoting 18 U.S.C.
§ 924(c)(3)(A)). The Hobbs Act defines robbery in
relevant part as "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." 18 U.S.C. § 1951(b)(1).
Because one cannot commit Hobbs Act robbery without using or
threatening physical force, we held that Hobbs Act robbery
qualifies as a predicate for a crime-of-violence conviction.
Anglin, 2017 WL 359666, at *7.
little to add to the analysis in Anglin, except to
address one additional argument. Rivera contends that the
Supreme Court's recent decision in Mathis v. United
States undermines the notion that physical force is an
"element" of Hobbs Act robbery. 136 S.Ct. 2243
(2016). In Mathis, the Court explained that
"[e]lements are the constituent parts of a crime's
legal definition, " or the things upon which a jury must
agree to convict. Id. at 2248 (internal quotation
marks omitted). "Means, " on the other hand,
"spell out various factual ways of committing some
component of the offense, " and a jury need not agree on
which way the defendant committed the offense to convict him.
Id. at 2249. Rivera asserts that Hobbs Act robbery
has three elements-(1) taking property (2) from another (3)
against his will-and several means by which to commit the
"against his will" element, including force,
violence, and threatening injury. For example, he contends
that a jury could convict him of Hobbs Act robbery even if
one juror found that he committed robbery through violence
while another found that he committed robbery by threatening
injury. Under this reading of the statute, Hobbs Act robbery
does not have physical force as an element and thus
is not a crime of violence under the force clause.
Rivera takes the Supreme Court's discussion of means and
elements out of context. Contrary to Rivera's belief, the
Court did not distinguish between means and elements to
dictate which parts of a statute matter in a
predicate-offense analysis. The Court instead made this
distinction to explain when it is appropriate to use the
categorical approach versus a "modified"
categorical approach-an issue that is irrelevant here.
Mathis, 136 S.Ct. at 2249.
Rivera's application of Mathis is correct, his
argument still fails. The distinction between means and
elements would matter only if one of the ways to commit Hobbs
Act robbery, say, putting another in fear of injury, did not
involve force, so that a juror could find a defendant guilty
irrespective of whether he used force to commit the crime.
But as noted above, one cannot commit Hobbs Act robbery
without using or threatening force. Anglin, 2017 WL
359666, at *7. Because each of the means by which to satisfy
the "against his will" element requires physical
force, the "against his will" element itself
requires physical force.
turn to the second issue on appeal regarding Rivera's
supervised-release term. Rivera's § 924(c)
convictions carry a maximum five-year term of supervised
release following imprisonment. See 18 U.S.C. §
3583(b)(1). The government concedes that this term is not
mandatory. Nevertheless, at sentencing, Judge Stadtmueller
said he was "obliged" to impose a five-year term.
(R. 196 at 24.) Rivera argues that this statement ...