MEMORANDUM OPINION

M. HANNAH LAUCK, District Judge.

This matter is before the Court on Defendant Joy Lynn E. Herstch's Motion to Dismiss Count Two of the Indictment, (the "Motion to Dismiss"). (ECF No. 23.) Defendant Chad G. Williams filed a "Motion to Adopt Co-Defendant Herstch's Motion to Dismiss Count Two of the Indictment" (the "Motion to Adopt").1 (ECF No. 27.) The United States responded to the Motion to Dismiss, (ECF No. 28), and Herstch replied, (ECF No. 30). No party has requested a hearing. Accordingly, the matter is ripe for disposition. For the reasons that follow, the Court will deny Herstch's Motion to Dismiss. (ECF No. 23.)

I. Procedural Background

On July 11, 2017, the United States filed an Indictment against Herstch, Williams, and two additional co-defendants. (ECF No. 10.) The Indictment alleged two counts against both Herstch and Williams:

On July 31, 2017, all defendants were arraigned and entered pleas of not guilty, and the Court set jury trial for September 25, 2017. (ECF No. 13.)

On August 11, 2017, Herstch filed the Motion to Dismiss, arguing that Count Two, the Firearm Charge, should be dismissed because the underlying offense, Hobbs Act robbery, is not a crime of violence. The Motion to Dismiss thus presents to the Court two issues: (1) whether Hobbs Act robbery categorically constitutes a crime of violence under 18 U.S.C. § 924(c)(3)(A); and, (2) whether the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), renders unconstitutional the residual clause of § 924(c)(3)(B).

II. Analysis: The Motion to Dismiss

A. Statutory Framework of § 924(c)

18 U.S.C. § 924(c)(1)(A) provides additional periods of imprisonment when a defendant uses or carries a firearm in furtherance of a crime of violence. The baseline additional period of imprisonment is five years. 18 U.S.C. § 924(c)(1)(A)(i). If the defendant brandishes the firearm, the additional period of imprisonment increases to at least seven years. Id. § 924(c)(1)(A)(ii). And if the defendant discharges the firearm, the additional period of imprisonment increases to at least ten years. Id. § 924(c)(1)(A)(iii).

The United States can demonstrate that an underlying offense constitutes a crime of violence if it establishes that the offense is a felony and satisfies one of two requirements. The statute defines crime of violence as any felony:

Id. § 924(c)(3).

B. Hobbs Act Robbery Categorically Constitutes a Crime of Violence

The United States Court of Appeals for the Fourth Circuit recently stated that "the categorical approach is a particularly bad fit in § 924(c) cases because § 924(c) is a firearms enhancement provision that penalizes, in broad terms, the use of a firearm during violent crimes," but that Fourth Circuit "precedent requires application of that approach." In re Irby, 858 F.3d 231, 234 (4th Cir. 2017). As one court in this District has aptly observed:

It appears that the Fourth Circuit has an internal dispute on whether the categorical approach is proper to § 924(c) at all, let alone a pretrial Motion on § 924(c). See In re Irby, 858 at 234 (criticizing use of the categorical approach on § 924(c) before applying it as compelled by prior panels); see also United States v. Doctor, 842 F.3d 306, 313 (4th Cir. 2016) (Wilkinson, J., concurring). Several Courts in this District have also discussed why the categorical approach is inappropriate to pretrial Motions concerning § 924(c). See United States v. McDaniels, 147 F.Supp.3d 427, 432 (E.D. Va. 2015); United States v. Standberry, 139 F.Supp.3d 734, 736 (E.D. Va. 2015); see also United States v. Jimenez-Segura, 206 F.Supp.3d 1115, 1131 (E.D. Va. 2016) (expressing similar reservations about applying the categorical approach to § 924(c) after a guilty plea). The purpose of the categorical approach is to protect defendants against a later court re-trying the facts of prior convictions. McDaniels, 147 F. Supp. 3d at 432. Such protection is unnecessary in a pre-trial motion because the court will submit the facts to a properly instructed jury after the motion. See id. Furthermore, such protection could create absurd results in any motion concerning § 924(c) because that statute always involves a predicate crime and a firearm, and the likelihood of a crime being nonviolent severely diminishes when it also involves a firearm. See Irby, 858 F.3d at 234. Nevertheless, as the panel in Irby acknowledges, this Court is bound to apply the categorical approach to § 924(c).

United States v. Gale, No. 4:17cr47, 2017 WL 3037796, at *3 n.1 (E.D. Va. July 18, 2017). The Gale court thus applied the categorical approach to the motions to dismiss counts of the indictments that were before it. See id. at *3. This Court likewise finds that the categorical approach applies to its analysis of § 924(c). See In re Irby, 858 F.3d at 234.

18 U.S.C. § 924(c)(3)(A) provides that an offense categorically constitutes a crime of violence if it (1) is a felony and (2) "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). The parties do not dispute that Hobbs Act robbery is a felony. See 18 U.S.C. § 1951(a) (providing a maximum sentence of twenty years' imprisonment). Thus, the Court limits its inquiry to whether the elements of Hobbs Act robbery encompass "the use, attempted use, or threatened use of physical force against the person or property of another."5 18 U.S.C. § 924(c)(3)(A).

This approach, the "categorical approach," requires that the Court "`look only to the statutory definitions'—i.e., the elements—of a defendant's [offense], and not `to the particular facts underlying [the conviction].'" Descamps v. United States, 133 S.Ct. 2276, 2283 (2013) (quoting Taylor v. United States, 495 U.S. 575, 600 (1990)); see also United States v. Fuertes, 805 F.3d 485, 498 (4th Cir. 2015) ("The point of the categorical inquiry is not to determine whether the defendant's conduct could support a conviction for a crime of violence, but to determine whether the defendant was in fact convicted of a crime that qualifies as a crime of violence." (citation omitted)).6 The Court turns first to the operative language of § 1951(a).

A defendant is guilty of Hobbs Act robbery if he or she "obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery . . . or attempts or conspires so to do. . . ." 18 U.S.C. § 1951(a). The statute defines "robbery" as

Id. § 1951(b)(1).

The Court concludes that a defendant "who commits Hobbs Act robbery by `fear of injury' necessarily commits it by `fear of physical force.'" United States v. Standberry, No. 3:15cr102, 2015 WL 5920008, at *4 (E.D. Va. Oct. 9, 2015) (citation omitted). This is because "[f]ear is the operative element facilitating the taking," id, and "any act or threatened act which engenders a fear of injury implicates force and potential violence," id. (citing United States v. Castleman, 134 S.Ct. 1405, 1414-15 (2014)); see also Castleman, 134 S. Ct. at 1416-17 (Scalia, J. concurring) ("[I]t is impossible to cause bodily injury without using force `capable of producing that result."). Put simply, common sense dictates that any "fear of injury" flows from the fear of physical force.7

Faced with analogous definitions of "crime of violence" and similar crimes involving robbery, many courts have reached this very conclusion.8 The Fourth Circuit, in particular, has held—at least on four occasions—that robbery convictions qualify as categorical crimes of violence. See, e.g., United States v. McNeal, 818 F.3d 141, 152-54 (4th Cir. 2016) ("Bank robbery under § 2113(a), `by force and violence,' requires the use of physical force. Bank robbery under § 2113(a), `by intimidation,' requires the threatened use of physical force. Either of those alternatives includes an element that is `the use, attempted use, or threatened use of physical force,' and thus bank robbery under § 2113(a) constitutes a crime of violence under the force clause of § 924(c)(3)."); United States v. Presley, 52 F.3d 64, 69 (4th Cir. 1995) (applying definition in 18 U.S.C. § 924(e)) ("We must assume that all of the elements of robbery in Virginia were met, including `violence or intimidation.' Violence is the use of force. Intimidation is the threat of the use of force."); United States v. Wilson, 951 F.2d 586, 588 (4th Cir. 1991) (applying definition in 18 U.S.C. § 16(a)) ("[A] conviction for robbery necessarily requires a finding of the use of force (a taking `by the use of violence') or threatened use of force (a taking `by putting in fear')."); United States v. Adkins, 937 F.2d 947, 950 n.2 (4th Cir. 1991) (applying definition in 18 U.S.C. § 924(c)(3)(A)) (noting that "[a]rmed bank robbery is unquestionably a crime of violence").

Herstch nonetheless presents to the Court creative examples how Hobbs Act robbery could be committed in the absence of what one would typically consider physical force or threats of physical force. For example, Herstch describes the "fear of injury" one would experience if faced with "withholding medicine or food, for example," and argues that one can "threaten to injure another's property by throwing paint on someone's house, pouring chocolate syrup on one's passport, or spray painting someone's car." (Mot. Dismiss 11-12.) Herstch, however, fails to acknowledge that the "concept of `force' encompasses even its indirect application" Castleman, 134 S. Ct. at 1414 (emphasis added). The Supreme Court has found that even similarly unlikely hypotheticals involve the threat of a physical undertaking. While rejecting a similar argument with respect to threats of poisoning, the Castleman court explained, "[t]he use of force is not the act of sprinkl[ing] the poison," but "the act of employing poison knowingly as a device to cause physical harm." Id. at 1415; see also Johnson, 559 U.S. at 140.9 Thus, in the Hobbs Act robbery context, even "fear of injury" stemming from a threat of indirect physical force constitutes a crime of violence.10

Accordingly, consistent with this Court's earlier decision, United States v. Walker, No. 3:15cr49, 2016 WL 153088 (E.D. Va. Jan. 12, 2016), and numerous decisions of courts in this district11 and elsewhere,12 the Court finds that Hobbs Act robbery constitutes a categorical crime of violence and can therefore serve as the basis for the § 924(c) count.

C. Johnson Would Not Invalidate 18 U.S.C. § 924(c)(3)(B)

In light of the conclusion that Hobbs Act robbery categorically meets the definition of a crime of violence under 18 U.S.C. § 924(c)(3)(A), the Court need not reach Herstch's argument that § 924(c)(3)(B) is unconstitutionally vague under Johnson. In any event, were this Court to evaluate that argument, it would likely reject Herstch's request to invalidate the residual clause found in § 924(c)(3)(B).

First, facial challenges are disfavored. Hunter, 2015 WL 6443084, at *2 (E.D. Va. Oct. 23, 2015) (citing Wash State Grange v. Wash. State Republican Party, 552 U.S. 442, 450 (2008)). In a decision involving a comparable challenge to the residual clause of § 924(c)(3)(B), a court in this District explained that "[a] facial challenge `to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.'" Id. (citing United States v. Solerno, 481 U.S. 939, 745 (1987)).

Second, as the Fourth Circuit has stated, the Johnson court "had no occasion to review the version of the residual clause set forth at 18 U.S.C. § 924(c)(3)(B), the one at issue in this case." Fuertes, 805 F.3d at 499 n.5. Continuing, the Fourth Circuit explained:

Id. Following the Fourth Circuit's guidance in Fueries, the Court would decline to extend the holding set forth in Johnson v. United States, 135 S.Ct. 2551 (2015).

III. Conclusion

For the foregoing reasons, the Court will grant Williams's Motion to Adopt, (ECF No. 27), and deny Herstch's Motion to Dismiss. (ECF No. 23.) An appropriate Order shall issue.

It is so ORDERED.