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United States v. Rivera

United States Court of Appeals, Seventh Circuit

February 3, 2017

United States of America, Plaintiff-Appellee,
v.
Ramon E. Rivera, Defendant-Appellant.

          Argued October 28, 2016

         Appeal from the United States District Court for the Eastern District of Wisconsin. No. 15-CR-51 - J.P. Stadtmueller, Judge.

          Before Ripple, Kanne, and Rovner, Circuit Judges.

          Kanne, Circuit Judge.

         On 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.

         Four days later, they robbed the Sky Zone Indoor Trampoline Park. This robbery was more successful than the prior one, netting them over $12, 000.

         Nearly 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.

         On February 4, 2016, Judge Stadtmueller sentenced Rivera to the mandatory minimum of thirty-two years' imprisonment.[1] He also imposed a five-year term of supervised release, which he said he was "obliged" to do. (R. 196 at 24.)

         Rivera 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 supervised-release term.

         With 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.

         We have 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.

         But 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.

         Even if 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.

          We now 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. ยง 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 ...


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