Cancel-Marrero v. USA
Filing
9
OPINION AND ORDER denying 1 Motion to Vacate. Judgment shall be entered accordingly. Signed by Judge Juan M. Perez-Gimenez on 9/21/2018. (PMA)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
Miguel Cancel-Marrero,
Petitioner
CIVIL NO. 17-1164 (PG)
Related Crim. No. 00-061-1 (PG)
v.
United States of America,
Respondent.
OPINION AND ORDER
Before the court is petitioner Miguel Cancel-Marrero’s (henceforth “Petitioner” or “CancelMarrero”) motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Docket
No. 1) and the United States’ (or the “government”) opposition thereto (Docket No. 4). For the
following reasons, the court DENIES Petitioner’s motion to vacate.
I.
BACKGROUND
On April 14, 2000, Cancel-Marrero and his co-defendants were indicted for aiding and
abetting in an armed carjacking, in violation of 18 U.S.C. § 2119(1) (“Count One”); aiding and
abetting in the use and brandishing of a firearm in furtherance of a “crime of violence” (i.e., the
carjacking charged in Count One) in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (“Count Two”);
aiding and abetting Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (“Count Three”); and
aiding and abetting in the use and brandishing of a firearm in furtherance of a “crime of violence”
(i.e., the Hobbs Act robbery charged in Count Three) in violation of 18 U.S.C. § 924(c)(1)(A)
(“Count Four”). See Crim. No. 00-061 (PG), Docket No. 29.
On August 29, 2000, Cancel-Marrero pled guilty to Counts Three (Hobbs Act robbery) and
Four (the second “crime of violence” charge). See Crim. No. 00-061 (PG), Docket No. 79. He was
Civ. No. 17-1164 (PG)
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sentenced to eighty-seven months as to Count Three, and eighty four as to Count Four, to be
served consecutively with each other, for a total of 171 months. See Crim. No. 00-061 (PG),
Docket No. 92.
In a separate case, Cancel-Marrero pled guilty to aiding and abetting armed carjacking, 18
U.S.C. § 2119(1). See Crim. No. 00-087 (PG), Dockets No. 76-77. In that case, the court sentenced
Cancel-Marrero to a term of eighty seven (87) months to be served consecutively to the 171month sentence imposed in Crim. No. 00-061 (PG), the case that is presently being attacked
collaterally. As a result, Cancel-Marrero’s total term of imprisonment is of 258 months. On April
25, 2002, Cancel-Marrero appealed his convictions for both cases, which were subsequently
affirmed by the First Circuit Court of Appeals. See Crim. No. 00-061 (PG), Docket No. 109; Crim.
No. 00-087 (PG), Docket No. 137. On February 3, 2017, Petitioner filed his present motion to
correct sentence alleging that his conviction and sentence as to Count Four in Crim. No. 00-061
(PG) must be vacated in light of Johnson v. United States, 135 S. Ct. 2551 (2015) (“Johnson II”).
See Docket No. 1. Cancel-Marrero did not request relief for his conviction in Crim. No. 00-087
(PG).
II.
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 2255, a federal prisoner may move to vacate, set aside, or correct his
sentence “upon the ground that the sentence was imposed in violation of the Constitution or laws
of the United States, or that the court was without jurisdiction to impose such sentence, or that
the sentence was in excess of the maximum authorized by law, or is otherwise subject to
collateral attack.” 28 U.S.C. § 2255(a); Hill v. United States, 368 U.S. 424, 426-427 (1962); Ellis
v. United States, 313 F.3d 636, 641 (1st Cir. 2002).
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III.
DISCUSSION
In his motion to correct sentence under 28 U.S.C. § 2255, Cancel-Marrero challenges his
sentence and conviction as to Count Four. Specifically, Cancel-Marrero contends that aiding and
abetting Hobbs Act robbery in violation of 18 U.S.C. § 1951(a) cannot be considered a “crime of
violence” pursuant to 18 U.S.C. § 924(c).
A. Void for Vagueness Challenge
Firstly, Petitioner contends that Hobbs Act robbery cannot be considered a “crime of
violence” under § 924(c)’s residual clause, found in 18 U.S.C. § 924(c)(3)(B), because it is
allegedly unconstitutionally vague in light of Johnson II. 1 Petitioner bases his argument on the
premise that § 924(c)’s residual clause is substantively similar to the ACCA’s residual clause, §
924(e), which was struck down for vagueness in Johnson II. As the following analysis will
showcase, the court need not reach the merits of Petitioner’s void-for-vagueness challenge
regarding § 924(c)’s residual clause because Hobbs Act robbery categorically qualifies as a “crime
of violence” under § 924(c)’s “force clause” in 18 U.S.C. § 924(c)(3)(A).
B. Hobbs Act Robbery
The statute defining Hobbs Act robbery provides, in pertinent part:
The term “robbery” means 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.
1
The residual clause at § 924(c)(3)(B) states that a “crime of violence” is an offense that is a felony and “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)(B).
Civ. No. 17-1164 (PG)
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18 U.S.C. § 1951(b)(1) (emphasis added). Furthermore, § 924(c)’s force clause defines a “crime
of violence” as a felony that “has as an element the use, attempted use, or threatened use of
physical force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A). Petitioner
presents four arguments challenging the classification of Hobbs Act robbery as a “crime of
violence” under § 924(c)’s force clause, and each shall be attended to in turn.
1. Fear of Injury to a Person
First, Cancel-Marrero argues that Hobbs Act robbery cannot qualify as a “crime of violence”
under § 924(c)’s force clause because the felony can be committed by putting someone in “fear
of injury” to his person, which allegedly does not require violent physical force, as defined in
Johnson v. United States, 559 U.S. 133 (2010) (Johnson I). 2 Under the categorical approach, if
the least violent conduct penalized by a statute fails to constitute a “crime of violence,” then the
statute categorically fails to qualify as a “crime of violence.” See United States v. Torres-Miguel,
701 F.3d 165, 167 (4th Cir. 2012). Hence, Petitioner contends that if Hobbs Act robbery can be
committed by putting someone in “fear of injury” to his person, and doing so does not require
the use, attempted use, or threatened use of physical force, then said statute fails to categorically
qualify as a “crime of violence” under the force clause in § 924(c)(3)(A).
In support of his argument, Petitioner relies heavily on the Fourth Circuit’s decision in United
States v. Torres-Miguel, 701 F.3d 165 (4th Cir. 2012), which held that physical injury, even death,
can be caused without the use of violent force. See id. at 168-69. Specifically, the Court in TorresMiguel held that “[a]n offense that results in physical bodily injury, but does not involve the use
or threatened use of force, simply does not meet the Guidelines definition of crime of violence.”
2
Johnson I held that “physical force” means “violent force—that is, force capable of causing physical pain or injury
to another person.” Johnson, 599 U.S. at 140.
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Id. at 168. As an example, the Fourth Circuit mentions that a defendant could cause injury or
death to someone by poisoning him, which does not require the use of physical force. See id.
Petitioner concludes that an individual could place another in “fear of injury” to his person by
threatening to poison him, expose him to hazardous chemicals, or lock him up inside a car on a
hot day, none of which, he argues, require the use or threat to use physical force. See Docket No.
1 at 14.
Cancel-Marrero’s argument that it is possible to commit Hobbs Act robbery by placing
someone in “fear of injury” to his person without using or threatening to use physical force holds
no water. The Court’s reasoning in Torres-Miguel that the phrase “use of physical force” does
not include “indirect applications” of force, such as in the case of poisoning, was abrogated by
United States v. Castleman, 572 U.S. 157 (2014). See United States v. Covington, 880 F.3d 129,
134-35 (4th Cir. 2018). Threatening to poison someone would still constitute a threat to use
physical force because the use of force is not “the act of ‘sprink[ling]’ the poison; it is the act of
employing poison knowingly as a device to cause physical harm. That the harm occurs indirectly,
rather than directly (as with a kick or punch), does not matter.” Castleman, 572 U.S. at 171.
Furthermore, for purposes of the Hobbs Act robbery statute, “[a] ‘fear of injury’ means fearing
injury that will be produced by violent force, that is, force capable of causing physical pain or
injury.” United States v. Williams, 179 F.Supp.3d 141, 152 (D.Me. 2016). See United States v.
Pena, 161 F.Supp.3d 268, 279 (D.N.Y. 2016) (stating that “the text, history, and context of the
Hobbs Act compel a reading of the phrase “fear of injury” that is limited to fear of injury from
the use of force”). Finally, the “fear of injury” in Hobbs Act robbery “encompasses a fear of injury
produced by physical force that is one step removed from, but caused by, the physical force of
the offender.” Williams, 179 F.Supp.3d at 153. As such, a person that commits Hobbs Act robbery
by instilling onto his victim the fear of being poisoned, exposed to chemicals, or locked in a hot
Civ. No. 17-1164 (PG)
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car is necessarily threatening to use physical force. It does not matter if the injury feared by the
victim is to be the direct or indirect result of the perpetrator’s use of physical force.
This court cannot imagine a reasonably realistic scenario in which an individual could
commit a Hobbs Act robbery by instilling onto someone a “fear of injury” to his person, where
said injury is not to be caused by physical force. See United States v. Ellison, 866 F.3d 32, 38 (1st
Cir. 2017) (holding that “we are not supposed to imagine ‘fanciful, hypothetical scenarios’ in
assessing what the least serious conduct is that the statute covers”) (quoting United States v.
Fish, 758 F.3d 1, 6 (1st Cir. 2014)). Therefore, he who commits a Hobbs Act robbery by instilling
onto his victim a “fear of injury” to his person has threatened to use physical force, regardless of
whether the injury is the direct or indirect result of said physical force. This court thus concludes
that a Hobbs Act robbery committed by causing a “fear of injury” to someone’s person qualifies
as a “crime of violence” under § 924(c)(3)(A), and Petitioner’s motion to correct sentence on the
present ground is DENIED.
2. Fear of Injury to a Person’s Property
Alternatively, Cancel-Marrero argues that it is possible to commit Hobbs Act robbery by
placing someone in “fear of injury” to his property, which can supposedly be accomplished by
many means short of strong physical force. For example, Petitioner posits that one could
theoretically commit a Hobbs Act robbery by threatening to throw paint at someone’s house,
pour paint on someone’s passport, or spray-paint someone’s car. Petitioner believes that these
hypothetical threats do not constitute threats to use physical force pursuant to § 924(c)(3)(A).
Petitioner also asserts that one could commit a Hobbs Act robbery by threatening to cause a
devaluation of some intangible asset, such as a stock holding. According to him, such threats to
economic interests do not require the use or threat to use physical force. In view of this,
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Petitioner concludes that a Hobbs Act robbery committed by placing someone in “fear of injury”
to his property cannot categorically qualify as a “crime of violence” under § 924(c)(3)(A). See
Docket No. 1 at 14, 15.
Cancel-Marrero’s argument that placing someone in “fear of injury” to his property does not
require “strong” physical force lacks merit. In Johnson I, the Supreme Court had to interpret
whether the “physical force” requirement in 18 U.S.C. § 924(e)(2)(B) could be fulfilled with mere
offensive touching, or if it required something more. 3 The Court defined “physical force” as
“violent force—that is, force capable of causing physical pain or injury to another person.”
Johnson, 599 U.S. at 140. If Johnson I’s interpretation of the “physical force” requirement in §
924(e)(2)(B) is to be applied to the physical force requirement in § 924(c)(3)(A) at issue here,
then the court must conclude that both physical force requirements require “no more nor less
than force capable of causing physical pain or injury to a person or injury to property.” United
States v. Hill, 890 F.3d 51, 58 (2nd Cir. 2018) (emphasis in original).
By applying the logic above to Cancel-Marrero’s hypothetical scenarios, it is evident that
threatening to throw paint at someone’s house, passport, or car does satisfy the physical force
requirement set forth in § 924(c)(3)(A). All of these scenarios would instill onto someone a “fear
of injury” to his property. Said fear would be the direct result of a use or threat to use physical
force capable of causing injury to the person’s property. See § 924(c)(3)(A) (defining “crime of
violence” in relevant part as a felony requiring the “use, attempted use, or threatened use of
physical force against the person or property of another”)(emphasis added).
3
The statute at issue in Johnson I defined a violent felony, in pertinent part, as a crime that “has as an element the
use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. §
924(e)(2)(B).
Civ. No. 17-1164 (PG)
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Moreover, Petitioner fails to present any realistic probability that a perpetrator could effect
a Hobbs Act robbery by placing someone in “fear of injury” to intangible economic assets without
using or threatening to use physical force. See Gonzales v. Duena-Alvarez, 549 U.S. 183, 193
(2007) (noting how finding that a predicate conviction fails to qualify as a “crime of violence”
using the categorical approach requires finding “a realistic probability, not a theoretical
possibility, that the State would apply its statute to conduct that falls outside the generic
definition of a crime”). Petitioner does not present any valid examples of how a Hobbs Act
robbery could be committed by threatening to devalue some economic interest where the
perpetrator does not threaten to employ the type of force capable of causing injury to someone’s
property. Petitioner cites only a single case that could be interpreted as an attempt to provide
one such example. Said case, United States v. Iozzi, 420 F.2d 512 (4th Cir. 1970), involves a
defendant who “obtained or attempted to obtain money from building contractors with their
consent by causing the contractors to fear financial and economic loss.” Id. at 513 (emphasis
added). As the previous quote highlights, the conduct charged in Iozzi consisted of a Hobbs Act
extortion, not a Hobbs Act robbery, as is the case here. See Hill, 890 F.3d at 60 n. 9. Therefore,
the conduct charged in Iozzi is not analogous to the conduct for which Cancel-Marrero was
convicted, to wit, Hobbs Act robbery.
In conclusion, a Hobbs Act robbery that is accomplished by placing someone in fear of injury
to his property qualifies as a “crime of violence” under § 924(c)’s force clause because it requires
the use or threatened use of physical force. As a result, Petitioner’s motion to correct sentence
on this ground is without merit, and it is consequently DENIED.
Civ. No. 17-1164 (PG)
Page 9 of 12
3. Mens Rea Required by Hobbs Act Robbery
Petitioner argues that in order for a felony to qualify as a “crime of violence” under § 924(c)’s
force clause, it must involve the intentional use or threat to use physical force. See Docket No.
1 at 16-17. Cancel-Marrero contends that committing a Hobbs Act robbery by putting someone
in “fear of injury” to his person or property does not require the intentional use or threat to use
physical force. Thus, Petitioner concludes that Hobbs Act robbery fails to qualify as a “crime of
violence” under § 924(c)(3)(A).
In support of his argument, Cancel-Marrero states that the “fear of injury” element of Hobbs
Act robbery is substantively identical to the “intimidation” element of federal bank robbery
under 18 U.S.C. § 2113(a). 4 Petitioner alleges that the “intimidation” element of the federal bank
robbery statute falls short of the mens rea necessary for the felony to qualify as a “crime of
violence” under § 924(c)’s force clause because “intimidation” does not require that the
defendant intentionally place another in fear of injury. After applying this logic via analogy to
the statute at issue here, Petitioner concludes that Hobbs Act robbery likewise fails to qualify as
a “crime of violence” because placing someone in “fear of injury” does not require the intentional
use or threat to use physical force.
Petitioner’s claim rests on an erroneous interpretation of the federal bank robbery statute
insofar as the First Circuit has held that a federal bank robbery committed via intimidation
indeed constitutes a “crime of violence” pursuant to § 924(c)’s force clause. See Hunter v. United
States, 873 F.3d 388 (1st Cir. 2017). Irrespective of whether or not federal bank robbery
constitutes a “crime of violence,” the felony at issue here, Hobbs Act robbery, “requires proof
The federal bank robbery statute provides, in pertinent part, that “[w]hoever, by force and violence, or by
intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain
by extortion any property or any other thing of value belonging to … any bank” will have committed federal bank
robbery. 18 U.S.C. § 2113(a) (emphasis added).
4
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that a defendant ‘knowingly and willfully’ obtained property from the person or corporation
robbed by means of robbery . . . and thus requires a defendant to have acted intentionally.”
United States v. Williams, 179 F.Supp.3d 141, 154 (D.Me. 2016) (emphasis added). Furthermore,
in order to find a defendant guilty of Hobbs Act robbery, “the Government must prove beyond a
reasonable doubt that the defendant induced someone to part with property, the defendant
knowingly and willfully did so by extortionate means, and the extortionate transaction
affected interstate commerce.” Id. (quoting United States v. Cruzado-Laureano, 404 F.3d 470,
480 (1st Cir. 2005)) (emphasis added). As such, Hobbs Act robbery requires the intentional
use or threat to use physical force, and Petitioner’s analogy to bank robbery is inapposite.
Based on the analysis above, this court concludes that Hobbs Act robbery committed by
placing someone in “fear of injury” to his person or property qualifies as a “crime of violence”
because it “has as an element the use, attempted use, or threatened use of physical force against
the person or property of another.” 18 U.S.C. § 924(c)(3)(A). Even though the First Circuit has
yet to explicitly address the matter, a plethora of sister courts and appellate courts have equally
arrived at the conclusion that Hobbs Act robbery qualifies as a “crime of violence” under the
force clause in § 924(c)(3)(A). See United States v. Williams, 179 F.Supp.3d 141 (D.Me. 2016);
United States v. Howard, 650 Fed.Appx. 466 (9th Cir. 2016); United States v. House, 825 F.3d
381 (8th Cir. 2016); United States v. Robinson, 844 F.3d 137 (3rd Cir. 2016); United States v.
Griffin, Crim. No. 16-10023, 2017 WL 1276048 (D.Mass. February 10, 2017); United States v.
Seams, Crim. No. 14-049, 2017 WL 2982962 (D.R.I. July 12, 2017); United States v. Gooch, 850
F.3d 285 (6th Cir. 2017); United States v. Rivera, 847 F.3d 847 (7th Cir. 2017); United States v.
Hill, 890 F.3d 51 (2nd Cir. 2018). This court finds the weight of this authority to be persuasive.
It follows, then, that even the least violent alternative means of committing Hobbs Act
robbery constitutes a “crime of violence” under the force clause in § 924(c)(3)(A) because it has
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as an element the “use, attempted use, or threatened use of physical force against the person or
property of another.” 18 U.S.C. § 924(c)(3)(A). Consequently, any means of committing Hobbs
Act robbery that is more violent than by causing “fear of injury” to a person or his property is
also deemed sufficient for meeting the requirement set by § 924(c)(3)(A). As a result, Petitioner’s
claims alleging that Hobbs Act robbery fails to qualify as a “crime of violence” are without merit,
and are therefore DENIED.
4. Aiding and Abetting Hobbs Act Robbery
Lastly, Petitioner asserts that aiding and abetting a Hobbs Act robbery does not require
the use, attempted use, or threatened use of violent physical force because the jury need not find
that the defendant himself used force to commit the aforementioned felony. Therefore, aiding
and abetting the offense allegedly fails to categorically qualify as a “crime of violence” under §
924(c)’s force clause. See Docket No. 1 at 17-18.
Under federal law, “whoever willfully causes an act to be done which if directly performed by
him or another would be an offense against the United States, is punishable as a principal.” 18
U.S.C. § 2(b). In other words, “one who aids and abets an offense ‘is punishable as principal’ . . .
and the acts of the principal become those of the aider and abetter as a matter of law.” United
States v. Mitchell, 23 F.3d 1, 3 (1st Cir. 1994) (quoting United States v. Simpson, 979 F.2d 1282,
1285 (8th Cir. 1992)). Aiding and abetting is not considered a separate offense from the
underlying substantive crime. See Mitchell, 23 F.3d at 2 (quoting United States v. Sanchez, 917
F.2d 607, 611) (1st Cir. 1990). Furthermore, “aiding and abetting the commission of a crime of
violence is a crime of violence itself.” Mitchell, 23 F.3d at 3.
As the above analysis showcases, Hobbs Act robbery categorically qualifies as a “crime of
violence” under the force clause in § 924(c)(3)(A). Therefore, aiding and abetting a Hobbs Act
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robbery must logically be considered a “crime of violence” as well. The aider and abetter of a
Hobbs Act robbery is legally responsible for the acts of the principal, meaning that CancelMarrero committed all the elements of a principal Hobbs Act robbery that merit the epithet of a
“crime of violence” under the force clause in question. Thus, Cancel-Marrero’s argument on this
ground lacks merit and is DENIED.
IV.
CONCLUSION
Based on the above-cited cases, the court finds that Cancel-Marrero’s arguments regarding
Hobbs Act robbery, as defined in 18 U.S.C. § 1951(a), and the force clause in 18 U.S.C. §
924(c)(3)(A) are meritless. Accordingly, his request for habeas relief on these grounds is
DENIED.
Based on the foregoing, the court denies Petitioner’s request for habeas relief under 28 U.S.C.
§ 2255 (Docket No. 1). The case is therefore DISMISSED WITH PREJUDICE. Judgment
shall be entered accordingly.
V.
CERTIFICATE OF APPEALABILITY
It is further ordered that no certificate of appealability should be issued in the event that the
Petitioner files a notice of appeal because there is no substantial showing of the denial of a
constitutional right within the meaning of 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
In San Juan, Puerto Rico, September 21, 2018.
S/ JUAN M. PÉREZ-GIMÉNEZ
JUAN M. PEREZ-GIMENEZ
SENIOR U.S. DISTRICT JUDGE
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