                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               _______________

                              Nos. 18-1606 and 18-1664
                                 _______________

                          UNITED STATES OF AMERICA,
                                       Appellant in No. 18-1606

                                          v.

                                RAUL RODRIGUEZ,
                                         Appellant in No. 18-1664
                                 _______________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                             (D.C. No. 5-16-cr-00288-001)
                    District Judge: Honorable Lawrence F. Stengel
                                  _______________

                  Appeal at No. 18-1606 Argued on March 20, 2019;
                    Appeal at No. 18-1664 Submitted Pursuant to
                   Third Circuit L.A.R. 34.1(a) on March 21, 2019

              Before: SHWARTZ, KRAUSE, and BIBAS, Circuit Judges

                                 (Filed: May 1, 2019)

Louis D. Lappen
Kelly A. Lewis Fallenstein
Bernadette A. McKeon
Robert A. Zauzmer           [ARGUED]
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
       Counsel for United States of America
Leigh M. Skipper
Brett G. Sweitzer          [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 Raul Rodriguez
                                  _______________

                                        OPINION
                                     _______________

BIBAS, Circuit Judge.

   The categorical approach can defy common sense, yet we must still follow it. Under

this approach, a robbery with a gun can be a categorical match for one federal robbery law

but not for another. This is such a case.

   Raul Rodriguez pleaded guilty to Hobbs Act robbery and to brandishing a gun during

that robbery under 18 U.S.C. § 924(c). The District Court found that this robbery was a

crime of violence under § 924(c), but not under the federal career-offender sentencing

guideline.

   Both sides appeal, but both claims fail. Hobbs Act robbery is broader than the career-

offender guideline. It sweeps in threats of injury to persons or property, while the guideline

enhancement applies only to crimes that require threats of injury to a person. So there is no

categorical match with the guideline. But there is one with § 924(c). We have already held

that, when a defendant commits a Hobbs Act robbery while brandishing a gun, the robbery

is a crime of violence under § 924(c). So we will affirm.




                                              2
                                    I. BACKGROUND

   Rodriguez and his accomplice robbed a check-cashing business at gunpoint. In doing

so, Rodriguez took an employee into the bathroom at gunpoint, bound her hands and feet,

threatened to kill her, and tied a gag around her head. He was caught and charged with

Hobbs Act robbery under 18 U.S.C. § 1951(a) and with brandishing a gun to further a crime

of violence under 18 U.S.C. § 924(c)(1). He pleaded guilty to both counts and raised the

two objections that are now before us.

   First, Rodriguez moved to dismiss the gun-brandishing count, claiming that Hobbs Act

robbery is not a crime of violence under § 924(c)(1). The District Court disagreed and de-

nied the motion. So Rodriguez pleaded guilty to this count while reserving his right to

appeal it.

   Second, Rodriguez objected to a sentencing enhancement. At sentencing, the govern-

ment argued that Hobbs Act robbery is a crime of violence under the U.S. Sentencing

Guidelines, making Rodriguez a “career offender.” U.S. Sentencing Guideline § 4B1.1.

This time, the Court sided with Rodriguez, holding that Hobbs Act robbery is not a “crime

of violence” under Guideline § 4B1.2.

   The Court then sentenced Rodriguez to a total of 140 months’ imprisonment plus five

years’ supervised release. The government now appeals the Guidelines ruling, while Ro-

driguez cross-appeals the statutory ruling. We review de novo whether a prior conviction

qualifies as a crime of violence under the Guidelines or under 18 U.S.C. § 924(c). United

States v. Henderson, 841 F.3d 623, 626 (3d Cir. 2016).



                                            3
            II. UNDER THE GUIDELINES’ ENUMERATED-OFFENSE CLAUSE,
                 HOBBS ACT ROBBERY IS NOT A CRIME OF VIOLENCE

   The government argues that Rodriguez is a career offender because his Hobbs Act rob-

bery is a crime of violence under Guideline § 4B1.2. As the government concedes, we apply

the categorical approach here to determine whether this is so. We thus look only at the

elements of the statute of conviction, not “the particular facts underlying th[at] convic-

tion[ ] .” Taylor v. United States, 495 U.S. 575, 600 (1990). For a categorical match, all the

elements of Hobbs Act robbery must match those of robbery, or the similar crime of extor-

tion, under the Guidelines. If the elements of Hobbs Act robbery “sweep[ ] more broadly”

than those of “robbery” or “extortion” in § 4B1.2(a)(2), then there is no categorical match.

Descamps v. United States, 570 U.S. 254, 261 (2013). And if there is no categorical match,

then Hobbs Act robbery is not a crime of violence under Guideline § 4B1.2.

   The career-offender enhancement has three requirements. U.S.S.G. § 4B1.1(a). No one

disputes that Rodriguez meets two of them: he was over the age of 18 when he committed

the robbery and has three prior drug convictions. So the only question remaining is whether

the current crime is a drug crime or a crime or violence. No one disputes that Hobbs Act

robbery is not a drug crime.

   Whether the enhancement applies turns on the definition of crime of violence. And the

Guidelines define that term in two ways. First, a felony can qualify if it has certain ele-

ments. Id. § 4B1.2(a)(1). But the government concedes that Hobbs Act robbery does not

have those elements.




                                              4
   True, in United States v. Robinson, we did hold that Hobbs Act robbery is a crime of

violence under a similar elements clause in § 924(c) if a defendant is convicted at the same

time of brandishing a gun during that robbery. 844 F.3d 137, 144 (3d Cir. 2016). But here,

the government expressly concedes that courts should not extend our decision in Robinson

to the career-offender guideline. So it waived this argument.

   Second, a felony can qualify as a crime of violence if it is one of several enumerated

offenses. U.S.S.G. § 4B1.1(a)(2). We limit our inquiry to whether Hobbs Act robbery cat-

egorically matches two of these offenses: robbery and extortion. Id. It does not. Neither

crime is a categorical match because both crimes include only force against persons, while

the Hobbs Act reaches force against either persons or property. The government argues

that if both Guidelines robbery and Guidelines extortion are too narrow, courts may com-

bine these offenses and compare Hobbs Act robbery with their combined scope. See, e.g.,

United States v. Becerril-Lopez, 541 F.3d 881, 892 (9th Cir. 2008). But because neither

offense reaches force against property, the combined offense would still be narrower than

Hobbs Act robbery. Thus, we need not address this argument. And because Hobbs Act

robbery sweeps more broadly, it is not a crime of violence under the Guidelines.

   A. Hobbs Act robbery is broader than Guidelines robbery

   The government concedes that Hobbs Act robbery sweeps more broadly than Guide-

lines robbery. We agree. Hobbs Act robbery is unlawfully taking someone’s personal prop-

erty against his will by use or threat of force against “his person or property.” 18 U.S.C.

§ 1951(b)(1) (emphases added). So the use or threat of force against a person is not re-

quired. The use or threat of force against property is enough.

                                             5
   The Guidelines do not define robbery, so we look to the generic definition of robbery

as found in state laws, treatises, and the Model Penal Code: “the taking of property from

another person or from the immediate presence of another person by force or by intimida-

tion.” United States v. McCants, 920 F.3d 169, 181 (3d Cir. 2019) (internal quotation marks

omitted).

   Guidelines robbery, unlike Hobbs Act robbery, requires force or threat to persons—not

property. United States v. O’Connor, 874 F.3d 1147, 1154-55 (10th Cir. 2017); see United

States v. Edling, 895 F.3d 1153, 1157 (9th Cir. 2018). Thus, Hobbs Act robbery does not

categorically match Guidelines robbery.

   We pause to note that this may not remain so. The Sentencing Commission recently

proposed amendments to redefine Guidelines robbery to match Hobbs Act robbery. 83 Fed.

Reg. 65,400, 65,411-12 (Dec. 20, 2018). If it adopts these amendments, future courts will

have to revisit this issue. For now, however, we must apply the Guidelines as we find them.

   B. Hobbs Act robbery is broader than Guidelines extortion

   The government does argue that Hobbs Act robbery categorically matches Guidelines

extortion. But our sister circuits have rejected that claim. They have held that Hobbs Act

robbery is broader because it includes threats to damage property, while Guidelines extor-

tion does not. United States v. Camp, 903 F.3d 594, 603-04 (6th Cir. 2018); O’Connor, 874

F.3d at 1157-58; see Edling, 895 F.3d at 1157-58. We agree. Though Guidelines extortion

extends to “physical injury,” that means only bodily injury, not property damage. So it is

not a categorical match either.



                                            6
   The Guidelines now define extortion as “obtaining something of value from another by

the wrongful use of (A) force, (B) fear of physical injury, or (C) threat of physical injury.”

U.S.S.G. § 4B1.2 n.1 (emphases added). The government argues that “physical injury” in-

cludes injury either to person or to property. But the term’s ordinary meaning and its con-

sistent use in the Guidelines belie that broad reading.

   1. Ordinary meaning. The most natural reading of “physical injury” excludes damage

to property. Black’s Law Dictionary equates it with “bodily injury,” which in turn means

“[p]hysical damage to a person’s body.” Black’s Law Dictionary 1331, 906 (10th ed. 2014).

   In response, the government tries to divide and conquer the two words separately.

“Physical” can mean “material things,” like tangible property. Webster’s Second New In-

ternational Dictionary 1852 (2d ed. 1949). And “injury” can mean “[d]amage or hurt done

to or suffered by a person or a thing.” Id. at 1280.

   So read separately, “physical” and “injury” might be broad enough to include property

damage. But words do not exist in a vacuum. We read “physical injury” together as a

phrase. “Physical” is an adjective that modifies “injury.” Together, they most naturally

mean only bodily injury to a person. Camp, 903 F.3d at 603; Edling, 895 F.3d at 1157-58.

   2. Consistent usage. We read “identical words used in different parts of the same act

. . . to have the same meaning.” Atl. Cleaners & Dyers, Inc. v. United States, 286 U.S. 427,

433 (1932). And the Guidelines consistently use “physical injury” to mean damage to per-

sons—not property.

   For instance, the Guidelines have a cluster of four policy statements that address only

harm to persons. One of these uses “physical injury” to refer to a “victim[’s] suffer[ing].”

                                              7
U.S.S.G. § 5K2.2; see O’Connor, 874 F.3d at 1157. By contrast, after these four policy

statements covering harms to persons, a separate policy statement is entitled “Property

Damage or Loss.” U.S.S.G. § 5K2.5. And many other provisions treat “physical injury”

and “property damage” as disjunctive categories by adding “or” between them. E.g., id.

§§ 2C1.1(c)(3), 2J1.2(b)(1)(B), 5K2.12.

   Against this backdrop, the government relies on a single Guidelines elements clause

that uses “against the person” to modify “physical force.” Id. § 4B1.2(a)(1). So it argues

that because Guidelines extortion is not so limited, it extends beyond force “against the

person” to include its use against property too. But “physical force” differs from “physical

injury.” The Guidelines use the latter term consistently to refer to injury to persons, not to

property. Our sister circuits agree. Camp, 903 F.3d at 603; Edling, 895 F.3d at 1157-58.

   Because we find no ambiguity in the text, we need not resort to the rule of lenity. So

we do not decide whether the rule of lenity still applies to the Guidelines after Beckles v.

United States, 137 S. Ct. 886 (2017).

   In sum, “physical injury” does not include damage to property. So Hobbs Act robbery

sweeps more broadly than Guidelines extortion. Thus, Rodriguez did not commit a crime

of violence under the Guidelines. The career-offender enhancement did not apply to him.

     III. HOBBS ACT ROBBERY IS A CRIME OF VIOLENCE UNDER § 924(C)(3)(A)

   Rodriguez cross-appeals the denial of his motion to dismiss the gun-brandishing count

under § 924(c)(1). He argues that Hobbs Act robbery is not a crime of violence under

§ 924(c)(3)(A). But he acknowledges that our decision in Robinson forecloses his argu-

ment. Rodriguez pleaded guilty to both Hobbs Act robbery and to brandishing a gun during

                                              8
that same robbery. So under Robinson, the Hobbs Act robbery was a crime of violence

under the statute. 844 F.3d at 144.

   Robinson is precedent and binds us. No intervening authority has undercut that deci-

sion. We will thus reject Rodriguez’s cross-appeal and affirm the District Court.

                                        * * * * *

   This result may be unsatisfying: Hobbs Act robbery is a crime of violence for some

laws but not others. It sweeps more broadly than Guidelines robbery and extortion, so it is

not a crime of violence under the enumerated-offense clause of the career-offender guide-

line. But under Robinson, it is a crime of violence under § 924(c)(3)(A) when coupled with

a conviction under that statute. So on both of the District Court’s rulings, we will affirm.




                                              9
