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United States v. Akina

United States District Court, D. New Mexico

April 17, 2017

UNITED STATES OF AMERICA, Plaintiff
v.
XAVIOR AKINA, Defendant.

          MEMORANDUM OPINION AND ORDER

          M. CHRISTINA ARMIJO CHIEF UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court upon Defendant Xavior Akina's (Defendant's) Motion to Dismiss Count 3 filed August 8, 2016. [Doc. 17] The United States filed a Response on August 19, 2016. [Doc. 22] The Court has considered the parties' submissions and the relevant law, and is otherwise fully informed. For the following reasons, the Court DENIES Defendant's Motion.

         I. BACKGROUND

         Defendant is charged with two counts of violation of the “Hobbs Act robbery, ” which prohibits the obstruction or delay of commerce by robbery or extortion. [Doc. 2] 18 U.S.C. § 1951(a) (“Whoever in any way or degree obstructs, delays, or affects commerce . . ., by robbery or extortion . . . 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.”). “Robbery” is defined 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, 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(b)(1).
In addition, Count 3 of the indictment charged Defendant with knowingly us[ing], carry[ing], and brandish[ing] a firearm during and in relation to a crime of violence for which the defendant may be prosecuted in a court of the United States, specifically, robbery as charged in Counts 1 and 2 of this indictment, and in furtherance of such crime, possessed, and brandished said firearm.
In violation of 18 U.S.C. § 924(c).
[Doc. 2]

         Section 924(c) provides for additional punishment when a firearm is possessed or brandished during a “crime of violence.” A “crime of violence” is one that is a felony and

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(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.

18 U.S.C. § 924(c)(3). The parties refer to § 924(c)(3)(A) as the “force clause” and § 924(c)(3)(B) as the “residual clause.” [Doc. 17, pg. 3; Doc. 22, pg. 5, 8] Defendant argues that Count 3 must be dismissed because (1) Hobbs Act robbery is not a crime of violence falling within the ambit of the force clause, and (2) the residual clause is unconstitutionally vague under Johnson v. United States (Johnson II), 135 S.Ct. 2551 (2015).

         “Whether a crime fits the § 924(c) definition of a ‘crime of violence' is a question of law.” United States v. Morgan, 748 F.3d 1024, 1034 (10th Cir. 2014). “The answer requires examination of the legal elements of the crime, not an exploration of the underlying facts.” Id. Thus, the questions presented by Defendant's arguments are entirely legal and no evidentiary hearing on Defendant's motion is necessary. In addition, the United States' contention that relief under Fed. R. Crim. P. 12(b)(3)(B)(v) (failure to state an offense) is improper because Defendant's arguments “cannot be resolved without a trial” is unavailing. [Doc. 22, pg. 3-4] See United States v. Pope, 613 F.3d 1255, 1260 (2010) (stating that even ...


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