# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted July 5, 2017 *

Decided July 6, 2017

Before

RICHARD A. POSNER, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 17

‐ 1235

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v

.

MICHAEL JACKSON III,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Southern District of Illinois.

No. 3:15

‐ CR

‐ 30120

‐ SMY

Staci M. Yandle,

J udge

.

O R D E R

A jury found Michael Jackson III guilty of two counts of Hobbs Act robbery,

18 U.S.C. § 1951(a), and of using a firearm during one of those robberies, id. § 924(c).

Jackson was sentenced to a total of 148 months’ imprisonment. For the first time on

appeal, Jackson argues that his § 924(c) conviction is invalid because, he says, the

* We have agreed to decide this case without oral argument because the briefs

and record adequately present the facts and legal arguments, and oral argument would

not significantly aid the court. See F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 17

‐ 1235 Page 2

underlying Hobbs Act robbery is not a crime of violence. Because Jackson’s argument is

foreclosed by our precedent, we affirm the judgment.

Under 18 U.S.C. § 924(c)(1)(A)(ii), a defendant who brandishes a firearm during a

crime of violence is subject to a minimum seven

‐ year sentence, imposed consecutively to

the sentence for the underlying violent crime. The statute 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.” Id. § 924(c)(3). In United States v.

Cardena

, 842 F.3d 959, 996 (7th Cir. 2016), we declared the portion of that definition

found in subparagraph (B) to be invalid in light of Johnson v. United States

, 135 S. Ct. 2551,

2556–57 (2015). But the “elements clause” in subsection (A) still stands, and a conviction

under § 924(c) may be upheld if based on that subsection. Cardena

, 842 F.3d at 996.

At trial Jackson’s attorney agreed to jury instructions acknowledging that

Hobbs Act robbery is a crime of violence under § 924(c)(3). Jackson nevertheless insists

that in the interests of justice, he should be allowed to challenge his § 924(c) conviction

because if Hobbs Act robbery is not a crime of violence, then he is innocent of the § 924(c)

offense. He argues that Hobbs Act robbery can be committed with a level and kind of

force that falls short of the violent force “capable of causing physical pain or injury to

another person” required by § 924(c). See Johnson v. United States

, 559 U.S. 133, 139–41

(2010). Pointing to the language in the Hobbs Act that prohibits unlawfully taking

property from another “by means of actual or threatened force, or violence, or fear of

injury,” 18 U.S.C. 1951(b)(1), Jackson argues that the statute distinguishes between actual

force, threatened force, violence, and fear of injury. This contention amounts to an

argument that the Hobbs Act is a divisible statute that criminalizes different ways of

taking property, not all of which satisfy § 924(c)’s definition of violent force. See Mathis v.

United States

, 136 S. Ct. 2243, 2251–54 (2016).

Jackson’s argument most likely is waived, see United States v. Bey

, 725 F.3d 643, 646

(7th Cir. 2013), but regardless, it is meritless. We recently held that Hobbs Act robbery is

a crime of violence under § 924(c) because commission of the offense “ necessarily

requires using or threatening force.” United States v. Anglin

, 846 F.3d 954, 965 (7th Cir.

2017) (emphasis added), petition for cert. filed (U.S. May 31, 2017) (No. 16

‐ 9411). Jackson

attempts to distinguish Anglin by characterizing that decision as having to do only with

the Hobbs Act’s “fear of injury” prong. But in United States v. Rivera

, 847 F.3d 847, 849

(7th Cir. 2017), we clarified that Hobbs Act robbery is a crime of violence under § 924(c)No. 17

‐ 1235 Page 3

regardless of whether the offense is committed by actual force, threatened force,

violence, or fear of injury. See id. (explaining that “one cannot commit Hobbs Act robbery

without using or threatening force”).

AFFIRMED.