The Justice Department pressed the Supreme Court to reverse an appeals-court ruling that upends mandatory-minimum gun sentences in a case that appeared to divide the justices.
The question considered by the Supreme Court Tuesday is whether attempted federal robbery counts as a “crime of violence” under a law that exposes defendants to stiff prison terms.
The answer seemed to elude the court during the argument session that prompted hypotheticals ranging from the academic to the cinematic, with Chief Justice John Roberts asking what charges Woody Allen’s character in “Take the Money and Run” would face for handing the note “I have a gub” to the teller.
Federal law 18 U.S.C. 924(c) punishes carrying or using a gun during a crime of violence, which is defined 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.” 924(c) convictions run consecutively to other sentences and carry five-year minimums and life-sentence maximums.
Tuesday’s case stemmed from the federal prosecution of Justin Taylor. According to the government, in the early 2000s he was a Richmond, Va., marijuana dealer who robbed buyers. In August 2003, Taylor planned such a robbery with an accomplice. The accomplice had a gun and met the buyer while Taylor waited in the car. The buyer resisted, the accomplice shot him, and Taylor and the accomplice fled without the money. The buyer died.
Under a plea agreement, Taylor was convicted of Hobbs Act conspiracy and a crime of violence under 924(c). The Hobbs Act punishes robbery or extortion affecting interstate or foreign commerce. Taylor was sentenced to 20 years on the conspiracy and another 10 for the crime of violence.
Breaking with other circuits, the U.S. Court of Appeals for the Fourth Circuit vacated Taylor’s 924(c) conviction. “Because the elements of attempted Hobbs Act robbery do not invariably require ‘the use, attempted use, or threatened use of physical force,’ the offense does not qualify as a ‘crime of violence’ under § 924(c),” the appeals court said.
At the argument, Rebecca Taibleson, an assistant to the solicitor general, said the Fourth Circuit “has excised from section 924(c) a core violent federal crime, based on the imaginary supposition that someone might commit it with a purely non-threatening attempted threat and yet somehow still come to the attention of law enforcement and be prosecuted.”
A recurring question during the argument to both Taibelson and Taylor’s lawyer, Michael Dreeben, a former longtime deputy solicitor general now with O’Melveny & Myers, was how imaginary a supposition that is.
As to Roberts’ film question, Dreeben said the Woody Allen character’s actions would violate the Hobbs Act. “An attempt that fails is still prosecutable as an attempt,” Dreeben said.
Broader concerns also hovered over the argument.
Justice Sonia Sotomayor pointed out that it’s an “enhancement case.” She said the government made it sound like a win for the defense would mean letting out “all of these horrible criminals,” but she emphasized that defendants still face substantial sentences on other charges, like Taylor’s 20-year conspiracy term that isn’t at issue here.
Going the other way, Justice Brett Kavanaugh worried about a ruling for the defense. “Congress obviously did this and imposed this because there’s a huge problem with violent crime committed with firearms and thought that the sentences were not sufficient to protect the public,” he said.
A decision is expected by July.
The case is United States v. Taylor, U.S., No. 20-1459.