United States v. Andrew White

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________

No. 15-1970 ________________

UNITED STATES OF AMERICA

v.

ANDREW WHITE, a/k/a Darnell White a/k/a F a/k/a Mikey F a/k/a Durrell aka Jerrell

Andrew White, Appellant

________________

Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal Action No. 2-08-cr-00161-002) District Judge: Honorable J. Curtis Joyner ________________

Submitted Under Third Circuit LAR 34.1(a) February 7, 2017

Before: SMITH, Chief Judge, AMBRO and FISHER, Circuit Judges

(Opinion filed February 7, 2017)  ________________

OPINION* ________________

AMBRO, Circuit Judge

In June 2010, Andrew White was sentenced to 196 months’ imprisonment

following an armed robbery with two accomplices of a speakeasy. He was convicted of

Hobbs Act conspiracy and robbery in violation of 18 U.S.C. § 1951(a), use and carrying

of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c), and attempted

witness tampering in violation of 18 U.S.C. § 1512(b). He was later resentenced to 160

months. White challenges his sentence claiming that his Hobbs Act robbery conviction is

not a predicate crime of violence under 18 U.S.C. § 924(c) in light of Johnson v. United

States, 135 S. Ct. 2551 (2015). We disagree.1

In Johnson the United States Supreme Court invalidated the so-called residual

clause contained in § 924(e) of the Armed Career Criminal Act (“ACCA”). 135 S. Ct. at

2557. It imposed a mandatory minimum of 15 years’ imprisonment on those who were in

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.

1 White also contends his sentence is in violation of 18 U.S.C. § 3551(b)(3), which provides that “[a]n individual found guilty of an offense shall be sentenced . . . to . . . a term of imprisonment as authorized by subchapter D [18 U.S.C. §§ 3581-85].” He asserts that because his sentence exceeds that which is authorized for his particular felony under subchapter D, the mandatory minimum applied to his conviction under § 924(c) was unlawful. This argument goes nowhere, as 18 U.S.C. § 3551(a) provides that this authorization applies “except as otherwise specifically provided [by statute] . . . .” Moreover, the Supreme Court specifically has upheld § 924(c)’s mandatory minimum sentence. See Abbott v. United States, 562 U.S. 8 (2010). 2 possession of a firearm and who had been convicted of three or more “violent felonies,”

which included crimes involving “conduct that presents a serious potential risk of

physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). The Court determined that

clause to be unconstitutionally vague.

White contends that the Court’s invalidation of § 924(e)’s residual clause similarly

invalidates the residual clause contained in § 924(c). That subsection imposes a sentence

enhancement if a defendant uses a firearm during the commission of a “crime of

violence,” which includes a felony that “involves a substantial risk that physical force

against the person or property of another may be used in the course of committing the

offense.” Id. § 924(c)(3)(B). White asserts that he was improperly convicted under that

provision of the ACCA because it is identically unconstitutionally vague, and therefore

his Hobbs Act robbery conviction is not a “crime of violence” within the meaning of that

provision. We need not address that issue, however, because § 924(c) also defines a

“crime of violence” as a felony involving “the use, attempted use, or threatened use of

physical force against the person or property of another.” Id. § 924(c)(3)(A).

Recently we addressed this issue in United States v. Robinson, 844 F.3d 137 (3d

Cir. 2016). There we held that Hobbs Act robbery is a crime of violence within the

meaning of § 924(c)(3)(A) because it involves a robbery “by means of actual or

threatened force.” Id. at 143-44 (quoting 18 U.S.C. § 1951(b)(1)). Although Robinson

dealt with a defendant who had brandished a firearm while committing the robbery—

rather than using or carrying a firearm, as White did—the concurrence noted that the

underlying facts made no difference. Id. at 151. The Hobbs Act criminalizes a robbery

3 that involves use of “actual or threatened force”; § 924(c) imposes a sentence

enhancement for the commission of a crime that involves “the use, attempted use, or

threatened use of physical force” when the defendant also “uses or carries a firearm.”

Accordingly, “[t]he definition of Hobbs Act robbery borrows conceptually, if not

linguistically, from § 924(c)(3)(A)’s definition of ‘crime of violence.’” Id. at 144.

White was convicted of Hobbs Act robbery while using or carrying a firearm. 2

Thus his conviction stands under § 924(c)(3)(A), and we need not address his challenge

to that statute’s residual clause. We will affirm.3

2 White admits that during the robbery he was “armed with guns and ordered customers of the speakeasy to the floor taking money and cellular phones.” Brief for White at 3. 3 White’s counsel has also filed a Petition to Withdraw as Counsel. We agree with counsel’s assertion that, given the aforementioned discussion, there are no nonfrivolous issues for appellate review. Because counsel has satisfied his requirements in moving to withdraw as counsel pursuant to Anders v. California, 386 U.S. 378 (1967), we will grant his Petition. 4