United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
CHRISTINA ARMIJO CHIEF UNITED STATES DISTRICT JUDGE
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.
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).
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
(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).
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