Hobbs Act Robbery Defense — 18 U.S.C. § 1951

Defendants are frequently baffled that a robbery is being prosecuted federally at all. The answer is the commerce clause, and the threshold is very low.

What actually determines the outcome is usually not the robbery count. It is whether a § 924(c) count rides along with it.

What the Hobbs Act covers

18 U.S.C. § 1951 punishes anyone who obstructs, delays, or affects interstate or foreign commerce by robbery or extortion, or who attempts or conspires to do so. The maximum is 20 years.

Enacted in 1946 to address labor racketeering, it is used today for commercial robberies, extortion schemes, and public corruption.

The elements of Hobbs Act robbery

1. The defendant obtained or took personal property from another, or from their presence;
2. Against that person’s will;
3. By actual or threatened force, violence, or fear of injury — whether to person or property; and
4. The conduct affected interstate or foreign commerce.

Note that fear of injury to property suffices. Actual violence is not required, and neither is a weapon.

The commerce element requires almost nothing

This is the element defendants expect to win on and almost never do. The effect on commerce need only be de minimis, and it is satisfied by robbing a business that sells goods originating out of state — which is essentially every business.

In Taylor v. United States, 579 U.S. 301 (2016), the Supreme Court held that robbing or attempting to rob a drug dealer of drugs or proceeds satisfies the commerce element as a matter of law, because the market in controlled substances is itself interstate commerce. That closed off the argument in the large category of cases involving robberies of dealers.

Where the commerce element does have traction is in genuinely private, non-commercial robberies — a robbery of an individual, in a home, of purely personal property with no business nexus. Those cases exist, and the element is worth testing in them.

The extortion branch

Extortion under the Act means obtaining property from another, with consent, induced by wrongful use of actual or threatened force, violence, or fear, or under colour of official right.

The “colour of official right” theory reaches public officials who obtain payments to which they are not entitled. Under Evans v. United States, 504 U.S. 255 (1992), the government need not prove the official demanded the payment — acceptance with knowledge that it was given in exchange for official action suffices.

Fear-based extortion includes economic fear, not only fear of violence. But the fear must be wrongfully used: hard bargaining, threatening litigation, or threatening lawful economic consequences is not extortion, and the line between aggressive negotiation and criminal extortion is where these cases are actually fought.

The firearm count is usually the real problem

Hobbs Act robbery is very often charged with § 924(c), and that count carries a mandatory consecutive minimum of five years, seven if brandished, ten if discharged.

The critical distinction after United States v. Davis (2019) and United States v. Taylor (2022):

• Completed Hobbs Act robbery qualifies as a crime of violence under the elements clause and remains a valid § 924(c) predicate.
• Attempted Hobbs Act robbery does not, because attempt requires only a substantial step rather than the use or threat of force.
• Hobbs Act conspiracy also does not qualify.

Whether the indictment charges a completed robbery, an attempt, or a conspiracy therefore determines whether an attached § 924(c) count is valid at all. Defendants sentenced on invalid predicates may have relief through a § 2255 motion.

Sentencing under § 2B3.1

The base offense level for robbery is 20, with enhancements that accumulate quickly:

• Property of a financial institution or post office — +2
• Firearm brandished or possessed — +5, or discharged — +7 (not applied where a § 924(c) count is also imposed, to avoid double counting)
• Bodily injury — +2 to +6 depending on severity
• Physical restraint of a victim — +2
• Loss amount — graduated increases
• Carjacking — +2

The double-counting rule matters: where § 924(c) is imposed, the weapon enhancement under § 2B3.1 should not also be applied. This is a recurring error worth checking in the presentence report.

Defenses that work

Identification. These cases frequently turn on eyewitness identification, surveillance footage of poor quality, and a single cooperating co-defendant. Identification procedures are challengeable, and the reliability literature is well developed.

The predicate characterisation. As above — attempt and conspiracy are not § 924(c) predicates.

Commerce, in genuinely private robberies.

Withdrawal and the scope of the conspiracy in multi-defendant cases, particularly where the government attributes the acts of others under Pinkerton.

Related pages

§ 924(c) firearm charges · RICO · Federal conspiracy · Federal sentencing guidelines