PRECEDENTIAL


         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                       ____________

                        No. 15-1402
                       ____________

              UNITED STATES OF AMERICA

                             v.

                  ANTHONY ROBINSON,
                              Appellant


       On Appeal from the United States District Court
           for the Eastern District of Pennsylvania
          (D. C. Criminal No. 2-13-cr-00232-001)
        District Judge: Honorable Berle M. Schiller


                 Argued on April 18, 2016

    Before: MCKEE, Chief Judge,* FUENTES and ROTH,
                    Circuit Judges



*
 Judge McKee was Chief Judge at the time this appeal was
argued. Judge McKee completed his term as Chief Judge on
September 30, 2016.
            (Opinion filed: December 19, 2016)


Robert Epstein, Esquire
Brett G. Sweitzer, Esquire         (Argued)
Federal Community Defender Office for
the Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106

                    Counsel for Appellant



Jeanine Linehan, Esquire
Bernadette A. McKeon, Esquire (Argued)
Jordan Strauss, Esquire
Robert A. Zauzmer, Esquire
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106

                    Counsel for Appellee



                       O P I N I ON




                             2
ROTH, Circuit Judge:

       In this appeal, we are called upon to determine
whether Anthony Robinson, when he brandished a firearm in
the commission of a Hobbs Act robbery, committed a “crime
of violence.” On September 17, 2014, Anthony Robinson
was convicted of one count, under 18 U.S.C. § 924(c), of
brandishing a firearm during the commission of a crime of
violence and two counts, under 18 U.S.C. § 1951(a), of
Hobbs Act robbery. On appeal, Robinson asks us to overturn
his conviction on the § 924(c) offense on the basis that Hobbs
Act robbery is not a “crime of violence.” We conclude that
when, as here, the two offenses, robbery and brandishing a
gun, have been tried together and the jury has reached a guilty
verdict on both offenses, the Hobbs Act robbery qualifies as a
crime of violence under the “elements clause” of 18 U.S.C. §
924(c)(3)(A). Thus, for the reasons stated below, we will
affirm Robinson’s conviction on all counts. However, with
the agreement of the government, we will remand this matter
for further proceedings to determine whether Robinson was
properly sentenced as a career offender.

                              I.

        On December 1, 2012, Robinson committed two
robberies in Philadelphia, approximately two hours apart. In
the first of these robberies, Robinson produced a handgun and
demanded all of the money in the cash register from the
cashier at a Subway sandwich shop. In the second robbery at
Anna’s Linens store, Robinson again produced a handgun and
demanded the money in the register from the store’s cashier.
Both robberies were recorded by on-site video surveillance
cameras.




                              3
       The next day, the Subway cashier observed Robinson
walking on the street and, recognizing him as the perpetrator
from the previous day’s robbery, immediately notified police.
After police recovered surveillance video and compared
Robinson’s image to that of the robber in the video, Robinson
was arrested for the Subway robbery. Suspecting that
Robinson might also have been responsible for the Anna’s
Linens robbery, a Philadelphia Police Detective prepared a
photo array that included a photograph of Robinson. The
cashier identified Robinson from the array.

       On May 9, 2013, a grand jury returned an indictment
charging Robinson with two counts of robbery by means of
actual and threatened force, violence and fear of injury, by
brandishing a handgun, affecting interstate commerce, in
violation of 18 U.S.C. § 1951(a), also known as Hobbs Act
robbery, and two counts of using and carrying a firearm
during and in relation to a crime of violence, in violation of
18 U.S.C. § 924(c). Prior to trial, Robinson moved to
suppress, inter alia, the photo array identification made by the
Anna’s Linens cashier. This motion was denied. Robinson
also submitted a letter to the District Court requesting to
proceed pro se. During an ex parte hearing to consider this
request, Robinson decided to proceed with counsel. Later,
following a hearing on his motion to suppress, Robinson
made an oral request to proceed pro se. The court directed
Robinson to file a motion. No motion was filed.

       Following a two-day trial, Robinson was convicted of
both robberies and of brandishing a firearm during and in
relation to the Subway robbery. Robinson was sentenced as a
career offender based on a 1990 Pennsylvania robbery




                               4
conviction and a 2009 Maryland carjacking conviction. This
appeal followed.

                             II.

        Robinson raises four issues on appeal: (1) his
conviction under 18 U.S.C. § 924(c), which requires that
Hobbs Act robbery qualify as a “crime of violence” as it is
defined therein; (2) the District Court’s denial of his motion
to suppress the photo array identification; (3) the District
Court’s failure to conduct a hearing pursuant to Faretta v.
California1 in response to Robinson’s request to proceed pro
se; and (4) Robinson’s “career offender” status, which
requires that he have two prior convictions that meet the
definition of “crime of violence” set forth in the Sentencing
Guidelines, U.S.S.G. § 4B1.1(b). The District Court had
jurisdiction over Robinson’s case pursuant to 18 U.S.C. §
3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 of
Robinson’s challenges of his conviction and pursuant to 28
U.S.C. § 3742 of Robinson’s sentencing challenge. We will
focus our discussion on Robinson’s challenge of his § 924(c)
conviction.

                             III.

       Robinson was convicted under 18 U.S.C. § 924(c) of
brandishing a firearm during and in relation to the Hobbs Act
robbery of the Subway store. On appeal, Robinson argues
that Hobbs Act robbery is not a crime of violence as required
for a conviction under § 924(c). Because Robinson raises this
issue for the first time on appeal, we will review for plain

1
    

(1975).




                              5
error.2

       18 U.S.C. § 924(c)(3) defines a “crime of violence” as
a felony that

          (A) has as an element the use, attempted use, or
          threatened use of physical force against the person or
          property of another, or
          (B) 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.3

These clauses are known as the “elements clause” and the
“residual clause,” respectively. Robinson asks us to hold that
Hobbs Act robbery is not a crime of violence under the
elements clause and that the residual clause is void for
vagueness in light of the Supreme Court’s decision in
Johnson v. United States.4 Because we conclude that
Robinson’s Hobbs Act robbery is a crime of violence under
the elements clause, we will not address Robinson’s challenge
to the residual clause.5


2
  United States v. Saada, 

, 223 (3d Cir. 2000).
3
  18 U.S.C. § 924(c)(3)(A)-(B).
4
  

(2015).
5
   Appellant argues that our recent decision in Baptiste v.
Attorney Gen., No. 14-4476, 

, at *7 (3d
Cir. Nov. 8, 2016) forecloses our application of 18 U.S.C. §
924(c)’s residual clause. Although we do not rely on the
residual clause to resolve this case, we note that Baptise is not
necessarily applicable here. In Baptiste, the Court considered
whether the defendant’s prior state conviction constituted a




                                 6
                              A.

       Both Robinson and the government suggest that our
analysis under the elements clause should be guided by the
so-called “categorical approach.” We do not agree that the
categorical approach applies here. When the predicate
offense, Hobbs Act robbery, and the § 924(c) offense are
contemporaneous and tried to the same jury, the record of all
necessary facts are before the district court. The jury’s
determination of the facts of the charged offenses
unmistakably shed light on whether the predicate offense was
committed with “the use, attempted use, or threatened use of
physical force against the person or property of another.” The
remedial effect of the “categorical” approach is not necessary.

       We can best explain our conclusion here by beginning
with a review of the origin of and the reasons for the
“categorical” approach. The categorical approach emerged as
a means of judicial analysis in Taylor v. United States.6
Taylor involved a criminal defendant challenging the
imposition of a sentencing enhancement known as the Armed
Career Criminal Act (ACCA), 18 U.S.C. § 924(e), which
applies when a defendant has three prior convictions for a
“violent felony.”7 The issue in Taylor was whether two


predicate violent offense. Our inquiry here, however, asks
whether a federal offense that was contemporaneously tried
with § 924(c) possession may properly serve as a predicate
offense. Resolution here is distinguishable because it does
not require consideration of a prior state conviction.
6
    

(1990).
7
    

                              7
second-degree burglary convictions under Missouri law could
be considered violent felonies for the purpose of applying the
enhancement. The Taylor Court concluded that only the
conviction itself and the statutory definition of the particular
offense, and not a description of the defendant’s conduct,
could be considered in determining whether an offense
qualified as a violent felony under the ACCA.8

        Taylor’s categorical approach rested on three
rationales. First, the language defining “violent felony” in 18
U.S.C. § 924(e)(2)(B) supports the notion that sentencing
courts are to look at the offense of conviction itself and not at
particular facts of an underlying conviction.9 Second, the
legislative history of the ACCA suggests that Congress
intended that sentencing courts use a categorical approach.10
Third, a fact-based approach would produce “practical
difficulties and potential unfairness.”11       Violent felony
convictions that are counted for an ACCA enhancement are
often adjudicated by different courts in proceedings that
occurred long before the defendant’s sentencing. In Taylor,
the two convictions at issue had been adjudicated in Missouri
state courts; the most recent of these convictions had occurred
17 years prior to the proposed application of the ACCA.12
The Taylor Court recognized the challenges in determining
the precise facts underlying a defendant’s conviction when
those facts are not plain from the elements of the offense
itself. Determining facts of the earlier conviction could

8
  

9
  

10
   

11
   

12
   

                               8
require a sentencing court to engage in evidentiary inquiries
based on what occurred at a trial in the distant past.

       Since the Court’s decision in Taylor, developments in
the law have provided an additional reason for avoiding
factual inquiries. The Supreme Court has held that a criminal
defendant’s Sixth Amendment rights are violated when a fact
that increases the maximum penalty for a crime is not
submitted to a jury.13 As the Court recognized in Shepard v.
United States, this principle would extend to determination of
facts that render a particular crime a “violent felony” and
therefore support application of the ACCA.14

        The analysis in Taylor was born from the Court’s
interpretation of the ACCA’s definition of a “violent felony”
in 18 U.S.C. § 924(e)(2)(B), which provides in relevant part
that a violent felony:

      (i) has as an element the use, attempted use, or
      threatened use of physical force against the person of
      another; or

      (ii) is burglary, arson, or extortion, involves the use of
      explosives, or otherwise involves conduct that presents
      a serious risk of physical injury to another . . ..15

Although Taylor focused on whether a Missouri burglary

. United States, 526 US. 227, 243 n.6 (1999);
Apprendi v. New Jersey, 

, 490 (2000).
14
   

, 24 (2005) (citing 

n.6,
and 

).
15
   18 U.S.C. § 924(e)(2)(B).




                              9
conviction would qualify as a “burglary” under the second
clause of this definition—the “enumerated offenses” clause—
the Court’s justification of the categorical approach relied on
the complete definition in § 924(e)(2)(B).16 Consequently,
the categorical approach has been applied both to the other
clauses in the ACCA’s “violent felony” definition as well as
to definitions of similar terms that mirror much of the
ACCA’s language.17

       Despite the unequivocal language animating the
decisions applying the categorical approach, the Taylor Court
recognized that a “narrow range of cases” would require a
sentencing court to look beyond the elements of an offense to
“the charging paper and jury instructions” in order to
determine whether a particular offense could qualify as a
violent felony under the ACCA.18 This “modified categorical
approach” applies when the statute defining the offense in

16
   

.
17
   See, e.g., Johnson v. United States, 

, 136-38
(2010) (applying a categorical approach under 18 U.S.C. §
924(e)(2)(B)(i)); Moncrieffe v. Holder, 

, 1684)
(describing the application of the categorical approach to
determine whether a particular crime is an “aggravated
felony” under the Immigration and Nationality Act); Leocal v.
Ashcroft, 

, 9-11 (2004) (applying the categorical
approach under 18 U.S.C. § 16, defining a “crime of
violence”). But see Nijhawan v. Holder, 

, 36
(2009) (statutory provision defining aggravated felony as an
offense that “involves fraud or deceit in which the loss to the
victim or victims exceeds $10,000” called for factual inquiry
regarding amount of loss).
18
   

.




                              10
question is “divisible”—that is, when one or more of the
elements of the offense has an alternative.19 The modified
categorical approach is not meant to supplant the categorical
approach. Rather, it “merely helps implement the categorical
approach” when a defendant has been convicted of violating a
statute that may only qualify as a predicate offense in
particular applications of the statute.20 In order to determine
what application of a statute is involved in a particular case,
we can look at, among other documents, the charging
documents.21

       In the case before us of contemporaneous offenses of
Hobbs Act robbery and of brandishing a handgun, the
modified categorical approach is inherent in the district
court’s consideration of the case because the relevant
indictment and jury instructions are before the court.

       For this reason, the approach we adopt here recognizes
the differences between § 924(c) and other statutes that
require categorical analysis, while at the same time being
guided by the rationales put forth in Taylor and the limits set
by our Constitution. Because the determination of whether a
particular crime qualifies as a “crime of violence” under §
924(c) depends upon both the predicate offense, here Hobbs
Act robbery, and the contemporaneous conviction under §
924(c), the § 924(c) conviction will shed light on the means
by which the predicate offense was committed. Looking at a
contemporaneous conviction allows a court to determine the

19
   See Descamps v. United States, 

, 2281
(2013).
20
   

21
   Shepard v. U.S., 

, 26 (2005).




                              11
basis for a defendant’s predicate conviction. The defendant
suffers no prejudice because the court is not finding any new
facts which are not of record in the case before it.
       We conclude that analyzing a § 924(c) predicate
offense in a vacuum is unwarranted when the convictions of
contemporaneous offenses, read together, necessarily support
the determination that the predicate offense was committed
with the “use, attempted use, or threatened use of physical
force against the person or property of another.”22 In so
doing, we do not direct courts to speculate as to facts. The
only facts that may support the conclusion that a particular
crime is a “crime of violence” are those that have either been
found by the jury or admitted by the defendant in a plea.

       Robinson argues, however, that we should look at the
statutory definition of Hobbs Act robbery and determine
whether it “has as an element” the actual, threatened, or
attempted use of force against person or property.23 Hobbs
Act robbery is defined as

      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.24


22
   18 U.S.C. § 924(c)(3)(A).
23
   

U.S.C. § 1951(b)(1) (emphasis added).




                             12
The definition of Hobbs Act robbery borrows conceptually, if
not linguistically, from § 924(c)(3)(A)’s definition of “crime
of violence.” Both definitions refer to the use or threatened
use of force against person or property, and the robbery
definition goes so far as to include the term “violence.” This
language would seem adequate in and of itself to satisfy the
“elements” clause of § 924(c)(2)(B).

        Robinson contends, nevertheless, that under the
categorical approach, we should look only to the minimum
conduct criminalized by the statute in determining whether it
is a crime of violence.25 Thus, Robinson described a number
of scenarios in which someone could commit a Hobbs Act
robbery without using or threatening to use force. Robinson
focuses on the phrase “fear of injury” to envisage a scenario
where, for example, a threat is made to an intangible
economic interest without any use of force.           Among
Robinson’s examples are threats of “throwing paint on
someone’s house, pouring chocolate syrup on someone’s
passport, or spray painting someone’s car.”

       While this display leaves no doubts in our minds that
Robinson’s counsel is creative, it is not necessary to our
analysis. In addition to being convicted of Hobbs Act
robbery, Robinson was convicted of brandishing a firearm
while committing Hobbs Act robbery.           The question,
therefore, is not “is Hobbs Act robbery a crime of violence?”
but rather “is Hobbs Act robbery committed while
brandishing a firearm a crime of violence?” The answer to
this question must be yes.


25
     See 

.




                                13
       A firearm is “brandished” when all or part of the
firearm is displayed or made known to another person in
order to intimidate that person.26 Thus, from the two
convictions combined, we know that in committing robbery
Robinson (1) used or threatened force, violence, or injury to
person or property, and (2) used a firearm in order to
intimidate a person.

        This approach may not always be appropriate. The
definition of “crime of violence” still directs courts to look at
the elements of an offense. As such, the value in examining
contemporaneous convictions is in elucidating what may be
an otherwise ambiguous element in the statute. It is possible
that Robinson’s far-fetched scenarios could provide a basis
for conviction under 18 U.S.C. § 1951(a), but the combined
convictions before us make clear that the “actual or
threatened force, or violence, or fear of injury” in Robinson’s
Hobbs Act robbery sprang from the barrel of a gun.
Accordingly, we will affirm Robinson’s conviction under 18
U.S.C. § 924(c).

                              IV.

        We now turn to Robinson’s challenges to the District
Court’s denial of his suppression motion, the failure to
conduct a Faretta27 hearing, and his classification as a “career
offender” for sentencing purposes. We hold that the District
Court did not err in denying Robinson’s motion to suppress or
in failing to conduct a Faretta hearing. However, we will
remand Robinson’s case for further sentencing proceedings.

26
     18 U.S.C. § 924(c)(4).
27
     Faretta, 

                               14
                              A.

        We review a ruling on the admission of identification
testimony for abuse of discretion.28            An eyewitness
identification that arises from an identification procedure that
is unnecessarily suggestive and carries a substantial risk of
misidentification may be suppressed under the Due Process
clause of the Fifth Amendment.29 A defendant seeking to
suppress identification testimony has the burden of proving
that the identification procedure used was unnecessarily
suggestive.30 “The suggestiveness of a photographic array
depends on several factors, including the size of the array, its
manner of presentation, and its contents. If there is no
prejudice in the manner of presentation, the primary question
is whether the suspect’s picture is so different from the rest
that it suggests culpability.”31 We review a finding that a
photo array was not unnecessarily suggestive for clear error.32

       Robinson argued before the District Court that the
photo array used to identify him was unduly suggestive
because Robinson’s photo was “noticeably lighter than the
others” and Robinson was “the only individual wearing a shirt
with a collar.” The District Court concluded that these
differences were “slight” and were not unduly suggestive.
The difference in lighting was found to be “within the range

28
   United States v. Brownlee, 

, 137 (3d Cir.
2006).
29
   

.
30
   United States v. Lawrence, 

, 115 (3d Cir.
2003).
31
   Reese v. Fulcomer, 

, 260 (3d Cir. 1991).
32
   United States v. Burnett, 

, 130 (3d Cir. 2014).




                              15
of variation of all the photographs, some of which are darker
than the others,” while the presence of a collar did not stand
out among the “variation in necklines of the shirts” in the
array’s other photographs. We see no indication that the
District Court clearly erred in reaching this conclusion.

       Robinson raises for the first time on appeal the
additional arguments that the array was unduly suggestive
because of its size, because most of the other individuals have
darker complexions than Robinson, and because his
photograph was one of only two that has gray facial hair.
However, a suppression argument raised for the first time on
appeal is waived absent good cause.33 Robinson has not
demonstrated good cause for his failure to raise these
arguments, so we will not consider them.

      Because the District Court did not clearly err and
because Robinson’s additional arguments have been waived,
we will affirm the District Court’s dismissal of Robinson’s
suppression motion.

                                B.

      We next turn to Robinson’s allegation that the District
Court erred in failing to conduct a Faretta inquiry following
Robinson’s requests to proceed pro se. We exercise plenary
review of a claim that a District Court’s ruling violated a
defendant’s right of self-representation.34

         The Sixth Amendment affords all criminal defendants

33
     United States v. Rose, 

, 182 (3d Cir. 2008)
34
     United States v. Peppers, 

, 127 (3d Cir. 2002).




                                16
the right “to have the Assistance of Counsel” for their
defense.35 This right “carries as its corollary the right to
proceed pro se.”36 The Supreme Court addressed the
contours of a defendant’s right to self-representation in
Faretta v. California, where the Court emphasized that “[t]he
language and spirit of the Sixth Amendment contemplate that
counsel, like other defense tools guaranteed by the
Amendment, shall be an aid to a willing defendant—not an
organ of the State interposed between an unwilling defendant
and his right to defend himself personally.”37 However,
because a defendant who chooses to represent himself
relinquishes a number of benefits that come with the
assistance of counsel, any defendant seeking to proceed pro
se must “knowingly and intelligently” relinquish the
assistance of counsel.38 Courts have the responsibility to
engage in a “Faretta inquiry” to determine that a defendant’s
request to proceed pro se has been made knowingly and
intelligently. In United States v. Peppers, we set forth three
requirements that must be satisfied before a defendant may
represent himself:

       1. The defendant must assert his desire to proceed pro
       se clearly and unequivocally.
       2. The court must inquire thoroughly to satisfy itself
       that the defendant understands the nature of the
       charges, the range of possible punishments, potential

35
   U.S. Const. Amend. VI.
36
   

.
37
   

, 820 (1975).
38
   

see Johnson v. Zerbst, 

, 464-65
(1938) (holding that a waiver of constitutional rights must be
knowing and intelligent).




                              17
       defenses, technical problems that the defendant may
       encounter, and any other facts important to a general
       understanding of the risks involved.
       3. The court must assure itself that the defendant is
       competent to stand trial.39

       Robinson requested to proceed pro se on two
occasions. On the first occasion, when the request was made
in a written motion, the District Court held a hearing to
ascertain Robinson’s understanding of the law surrounding
his charges. In the midst of this hearing, Robinson informed
the court that he had decided to retain counsel. While
Robinson suggests that the District Court’s hearing was
“coercive” and caused him to “acquiesce” to retaining
representation, the record shows that the District Court in
informing Robinson of the risks of self-representation, noted
that his lawyer was an experienced defense lawyer well-
versed in the issues that Robinson sought to raise. This is not
coercive. It is exactly what a court is required to do when
adjudicating a request to proceed without counsel.40

      Robinson’s second request came following a hearing
on Robinson’s motion to suppress. As the hearing concluded,
Robinson announced that he had a motion to file, which his
counsel confirmed was a notice that Robinson wished to
proceed pro se. Rather than addressing Robinson’s desire to
proceed pro se, the Court requested that counsel file any


39
   

(internal quotations and citations
omitted).
40
   See 

(noting that a proper Faretta inquiry requires
“specific forewarning of the risks that foregoing counsel’s
trained representation entails.”).




                              18
relevant motion. Although Robinson’s counsel informed the
court that she would file the motion, no motion was filed.
When Robinson’s trial began, Robinson’s counsel advised the
court that there were no outstanding issues. Given these
facts, we cannot say that Robinson expressed his desire to
proceed pro se “clearly and unequivocally,” as required by
Peppers: no motion was filed and the issue was not raised
again after its brief mention at the end of Robinson’s
suppression hearing. Without a clear and unequivocal request
to proceed pro se, a Faretta inquiry is not necessary.41 Thus,
we hold that Robinson’s right to self-representation was not
abridged by the District Court’s failure to conduct a second
Faretta inquiry.

                              C.

       The final issue in this appeal is Robinson’s challenge
to his classification as a “career offender” under the
Sentencing Guidelines. Because Robinson did not object to
his classification at sentencing, there is an inadequate record
to review this claim. The government has conceded,
however, that the issue of whether Robinson qualifies as a
career offender should, in the interests of justice, be remanded
to the District Court to determine whether the career offender
provision under U.S.S.G. § 4B1.1 applies. We agree.

       Accordingly, we will remand the case for further
sentencing proceedings.
                              V.

          For the reasons stated above, we will affirm

41
     

                              19
Robinson’s convictions under § 924(c) and § 1951(a).
However, we will remand the case for further sentencing
proceedings so that the District Court may determine if
Robinson’s prior convictions were crimes of violence under
the career offender guideline.




                           20
FUENTES, Circuit Judge, concurring in part and concurring
in the judgment.

       After a jury trial, defendant Anthony Robinson was
found guilty of two counts of Hobbs Act robbery1 and one
count of using a firearm during the commission of a crime of
violence2 for robbing two Philadelphia stores. Robinson
demanded money from the cash register while brandishing a
firearm. Among other things, he appeals his Section 924(c)
conviction, arguing that Hobbs Act robbery is not a “crime of
violence” within the meaning of Section 924(c). After
finding the categorical approach unnecessary here, the
majority affirms Robinson’s Section 924(c) conviction
because Robinson was simultaneously convicted of
brandishing a firearm while committing a Hobbs Act
robbery.3 I depart from the majority that the categorical
approach should not be used when the convictions are
simultaneous.

       Instead, I conclude that Congress intended for courts to
use the categorical approach to determine what is or is not a
“crime of violence” under Section 924(c). This position is
advocated by both Robinson and the government, and is
consistent with the Supreme Court’s recent opinion in Mathis
v. United States and the decisions of our sister circuits who
have been confronted with the same question.4

1
  18 U.S.C. § 1951(a).
2
  18 U.S.C. § 924(c).
3
  Maj. Op. at 12.
4
  See Mathis v. United States, 

(2016); United
States v. Hill, 

(2d Cir. 2016); United States v.
Howard, 650 F. App’x 466 (9th Cir. 2016) (unpublished).




                              1
                               I.

       In my view, Congress intended Section 924(c)(3) to
define “crime of violence” in terms of statutory elements of
the contemporaneous conviction, rather than in terms of the
actual underlying conduct of the defendant. My analysis is
guided by the Supreme Court’s decision in Taylor v. United
States.5 In that case, the Supreme Court found that Congress
“intended the sentencing court to look only to the fact that the
defendant had been convicted of crimes falling within certain
categories, and not to the facts underlying the prior
convictions”6 to determine whether sentencing enhancements
apply under the Armed Career Criminal Act (“ACCA”), 18
U.S.C. § 924(e). It did so for three reasons.

       First, the Court found that the text of Section 924(e)
supports such a categorical approach by referring to persons
who have “three previous convictions . . . for a violent felony
or a serious drug offense,”7 rather than persons who have
committed violent felonies or serious drug offenses, and by
defining “violent felony” as “any crime punishable by
imprisonment for more than a year that ‘has as an element’—
not any crime that, in a particular case involves—the use or
threat of force.”8 Second, legislative history is consistent
with such an approach because though there was
“considerable debate over what kinds of offenses to include
and how to define them . . . no one suggested that a particular

5
  

(1990).
6
  

7
  18 U.S.C. § 924(e)(1).
8
  

.




                               2
crime might sometimes count towards enhancement and
sometimes not, depending on the facts of the case.”9 Third,
the Court was persuaded by “the practical difficulties and
potential unfairness of a factual approach.”10

        Here, Section 924(c)(3)(A) likewise defines “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,” referring courts to the
statutory elements, rather than to the underlying facts.
Moreover, the legislative history of Section 924(c) similarly
evinces congressional intent to define crime of violence in a
categorical way rather than in a factual way. The Senate
report discussion of Section 924(c) included comments on
which precise offenses are “crime[s] of violence” under the
statute, but never which facts would qualify a conviction as a
“crime of violence” and which facts would disqualify the
same conviction.11

       I agree with the majority that some of the “practical
difficulties and potential unfairness”12 concerns of a factual
approach present in Taylor are not present in this case. Here,
Robinson was simultaneously convicted of both Hobbs Act
robbery and Section 924(c), from which we can surmise
without speculation that he brandished a gun while

9
  

10
   

Rep. No. 98-225, at 312-13 (1983) (federal crimes such
as the bank robbery statute and assault on federal officer
statute are specifically discussed as prime examples of
“crimes of violence”).
12
   

.




                              3
committing the robberies. But I disagree that this alone
renders the use of the categorical approach “unnecessary”
when the statutory language and legislative history are as
clear as those in Taylor that Congress intended courts to
utilize a categorical approach to determining which crimes
are “crimes of violence.” Furthermore, taking a categorical
approach avoids the circularity and ambiguity caused by the
majority’s position that “the determination of whether a
particular crime qualifies as a ‘crime of violence’ under §
924(c) depends upon both the predicate offense, here Hobbs
Act robbery, and the contemporaneous conviction under §
924(c).”13 Indeed, other circuits have also taken this
categorical approach to determine which offenses are “crimes
of violence” under Section 924(c).14

       This does not end our analysis because even when the
statute calls for an elements-based analysis, the categorical
approach is not always possible. As the Supreme Court
explained in Mathis v. United States, “[t]he comparison of
elements that the categorical approach requires is
straightforward when a statute sets out a single (or
‘indivisible’) set of elements to define a single crime. The
court then lines up that crime’s elements alongside those of
the generic offense and sees if they match.” 15 The
categorical approach fails when a statute sets out alternative
(or “divisible”) sets of elements, thereby creating multiple


13
   Maj. Op. at 9-10.
14
    See 

(holding that Hobbs Act
robbery is categorically a crime of violence under Section
924(c)); Howard, 650 F. App’x at 468 (same).

.




                              4
crimes within a single statute.16 Consequently, whether a
defendant’s violation of a divisible statute counts as a
predicate crime depends on which of the alternative elements
listed was actually committed, forcing courts to look beyond
the statute and peek at documents such as “the indictment,
jury instructions, or plea agreement and colloquy[] to
determine what crime, with what elements, a defendant was
convicted of. The court can then compare that crime, as the
categorical approach commands, with the relevant generic
offense.”17 This is the modified categorical approach.

       As the Supreme Court has reiterated, however, the
modified categorical approach is approved only “for use with
statutes having multiple alternative elements.”18 In other
words, the simple fact that documents such as the indictment
and the jury instructions are available does not mean that a
court may look to them. As the majority notes, the modified
categorical approach is not meant to supplant the categorical
approach where convenient, but “merely to help implement


16
   

17
    

The Supreme Court explains this
phenomenon in the ACCA context, using the following
illustration: A state burglary law prohibits “‘the lawful entry
or the unlawful entry’ of a premises with intent to steal, so as
to create two different offenses . . . . If the defendant were
convicted of the offense with unlawful entry as an element,
then his crime of conviction would match generic burglary
and count as an ACCA predicate; but, conversely, the
conviction would not qualify if it were for the offense with
lawful entry as an element.” 

S. Ct. at 2249.




                               5
the categorical approach” when the court is confronted with a
divisible statute.19
         The Hobbs Act itself is a divisible statute. A person
is in violation of the Hobbs Act if he “obstructs, delays, or
affects commerce or the movement of any article or
commodity in commerce, by robbery or extortion or attempts
or conspires so to do, or commits or threatens physical
violence to any person or property in furtherance of a plan or
purpose to do anything in violation of this section.”20 In
short, a person may violate the Hobbs Act by either robbery
or extortion. But we are not asked whether a Hobbs Act
violation is a crime of violence under Section 924(c).
Instead, Robinson appeals only the question whether a Hobbs
Act robbery, as defined by Section 1951(b), is a crime of
violence.21 With this limitation, I find that a Hobbs Act
robbery is not a divisible statute.

       Section 1951(b)(1) defines robbery as “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.” At a glance, the phrase

19
   Maj. Op. at 9 (quoting Descamps v. United States, 133 S.
Ct. 2276, 2285 (2013)); see also United States v. Brown, 

, 190 (3d Cir. 2014) (“It bears repeating that the
modified categorical approach is ‘applicable only to divisible
statutes.’”).
20
   18 U.S.C. § 1951(a).
21
   Appellant Br. at 3 (“Was Mr. Robinson wrongly convicted
of brandishing a firearm under 18 U.S.C. § 924(c)(3), since
Hobbs Act robbery, 18 U.S.C. § 1951(b), is not a categorical
crime of violence . . . ?”).




                              6
“by means of actual or threatened force, or violence, or fear
of injury, immediate or future, to his person or property” is a
disjunctive list. But a disjunctive list of “factual means of
committing a single element” does not render a statute
divisible, whereas a disjunctive list of elements would. 22
Therefore, we must determine whether this particular phrase
is a list of alternative elements or a list of alternative means.

        Mathis instructs that one way to distinguish elements
from means is by looking at the charge in the indictment and
“the correlative jury instructions”—for example, if the
defendant is charged with “burgling a building, structure, or
vehicle,” then “each alternative is only a possible means of
commission, not an element that the prosecutor must prove to
a jury beyond a reasonable doubt.”23 The indictment and jury
instructions in this case make clear that the statutory list of
“actual or threatened force, or violence, or fear of injury,
immediate or future, to [the victim’s] person or property” are
all alternative means of committing the element of unlawful
taking against the victim’s will, rather than alternative
elements.24 Indeed, the district judge specifically instructed

22
   

.
23
   

(internal quotation marks omitted).
24
    See, e.g., App’x at 32-33 (indictment charging Robinson
with “unlawfully [taking and obtaining] approximately $100
United States currency, property of Subway, from the person
or in the presence of J.H., an employee of Subway known to
the grand jury, and against J.H.’s will, by means of actual and
threatened force, violence, and fear of injury, immediate and
future, to her person and property, that is, by brandishing a
handgun and using the handgun to threaten and intimidate the
victim J.H.”).




                               7
the jury that “[t]he government must prove beyond a
reasonable doubt that the defendant unlawfully took the
alleged victim’s property against his or her will by actual or
threatened force, violence or fear of injury, whether
immediately or in the future,” but that “[t]he government
satisfies its burden of proving an unlawful taking if you
unanimously agree that the defendant employed any of these
methods.”25

       Accordingly, a strict categorical approach is the
appropriate method for determining whether Hobbs Act
robbery is a “crime of violence” under Section 924(c)(3).
Nonetheless, for the reasons set out below, I concur with the
majority that Robinson’s 924(c) conviction should be upheld.

                               II.

       Using the categorical approach, I come to the same
conclusion as the majority that Hobbs Act robbery is in fact a
“crime of violence.” Section 924(c)(3)(A) defines a crime of
violence as any felony that “has as an element the use,
attempted use, or threatened use of physical force against the
person or property of another.” Hobbs Act robbery is defined
as “the unlawful taking or obtaining of personal property . . .
by means of actual or threatened force, or violence or fear of
injury, immediate or future, to his person or property.” 26 The
question is whether the list enumerated in the Hobbs Act
robbery definition is broader than the list enumerated in
Section 924(c)(3)(A).


25
     App’x at 535.
26
     18 U.S.C. § 1951(b)(1).




                               8
       I find persuasive the Second Circuit’s recent decision
in United States v. Hill on the same issue. In a well-reasoned
opinion, that court held that all the alternative means of
committing a Hobbs Act robbery, “actual or threatened force,
or violence, or fear of injury,” can satisfy Section
924(c)(3)(A)’s requirement of “use, attempted use, or
threatened use of physical force” because the Supreme Court
has already defined “physical force,” in the context of
defining a violent felony, to be simply “force capable of
causing physical pain or injury to another person.”27 In other
words, by definition, a jury could have found “actual or
threatened force, or violence, or fear of injury” only if the
defendant used, attempted to use, or threatened to use
physical force because “fear of injury” cannot occur without
at least a threat of physical force, and vice versa.28

27
   

(citing Johnson v. United States,

, 139-40 (2010)).
28
   Robinson argues that a Hobbs Act robbery cannot be a
crime of violence because a defendant could commit a Hobbs
Act robbery via non-violent means—for example, by
threatening to throw paint on someone’s house. The majority
opinion did not address this argument because it was
unnecessary under its analysis but the argument nonetheless
fails even under the categorical approach. Physical force, as
explained by the Supreme Court, connotes simply force that
is violent enough to be capable of causing injury. 

. No more, no less. Thus, as long as a jury
finds that a threat to throw paint can cause a “fear of injury”
sufficient to satisfy Hobbs Act robbery, then that defendant
has also sufficiently “threatened [to] use physical force” to
satisfy the “crime of violence” definition. Legislative history
supports this position. Congress specifically singled out the




                              9
Accordingly, I find that Hobbs Act robbery is categorically a
crime of violence under Section 924(c)(3).

      In conclusion, I concur in the judgment of the majority
and will affirm Robinson’s Section 924(c) conviction.29




federal bank robbery statute as a crime that is the prototypical
“crime of violence” captured by Section 924(c). See S. Rep.
No. 98-225, at 312-13. Yet, the federal bank robbery statute,
18 U.S.C. § 2113(a), is analogous to Hobbs Act robbery. See
Howard, 650 F. App’x at 468. Section 2113 may be violated
by “force and violence, or by intimidation,” just as the Hobbs
Act robbery statute may be violated by “actual or threatened
force, or violence, or fear of injury.” From this, we can
surmise that Congress intended the “physical force” element
to be satisfied by intimidation or, analogously, fear of injury.
29
   In addition to concurring in the judgment, I concur with the
majority’s analysis in Section IV.




                              10