United States of America v. Michael Hughes

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 22-1756
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UNITED STATES OF AMERICA
v.
MICHAEL HUGHES,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2:17-cr-00606-002)
District Judge: Honorable Cynthia M. Rufe
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Submitted Under Third Circuit L.A.R. 34.1(a)
on March 15, 2024
Before: BIBAS, MONTGOMERY-REEVES, and ROTH,
Circuit Judges
(Filed: September 3, 2024)

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Michael Hughes
Hazelton USP
P.O. Box 2000
Bruceton Mills, WV 26525
Pro Se Appellant
Amanda Reinitz
U.S. A TTORNEY’S O FFICE
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
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OPINION OF THE COURT
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BIBAS, Circuit Judge.
On plain-error review, we must consider the whole record—
even when applying the categorical approach. Twice, Michael
Hughes robbed people at gunpoint. He was convicted of two
Hobbs Act robberies plus two gun charges under 18 U.S.C.
§ 924(c). Now, for the first time, he argues that the District
Court got the § 924(c) jury instruction wrong by calling attempted
Hobbs Act robbery a crime of violence. Though that instruction
was wrong, he cannot show that it prejudiced him. Given the
mountain of evidence that he completed the robberies, a
properly instructed jury would still have convicted him. His
convictions are sound.

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I. HUGHES ’ S A RMED R OBBERIES
In 2016, Hughes and Nashadeem Henderson robbed and
shot two people. First, they robbed a drug dealer. Hughes had
previously called the dealer and ordered some marijuana. But
when they met up, Hughes pulled a gun on him and insisted
that he hand over “everything.” Supp. App. 75–76. The dealer
gave up his drugs and cash but refused to surrender his phone
and wallet. Hughes tried to shoot the dealer, but his gun mis-
fired, so Henderson shot the dealer in the leg.
Four days later, Hughes and Henderson robbed a pizza deliv-
ery driver. This time, Henderson lured the victim to the scene
by calling up a pizzeria and ordering pizza. When the delivery
driver arrived and realized the threat, he dropped the pizza and
said he “didn’t have anything.” Supp. App. 245. He tried to
back away; Henderson shot him in the leg. Hughes then took
cash from the driver’s pockets, and the robbers fled with
the money.
A federal jury convicted Hughes of two counts of Hobbs
Act robbery. It found that Hughes had either “obstruct[ed],
delay[ed], or affect[ed] commerce … by robbery or extortion”
or had “attempt[ed] or conspire[d]” to do so. 18 U.S.C. § 1951(a).
The jury instruction said the jury could convict Hughes if he had
completed the robberies or just attempted them.
The jury also convicted Hughes of two gun crimes under
§ 924(c). This provision makes it illegal to use or carry a gun
“during and in relation to [a] crime of violence.” § 924(c). The
jury instruction said that Hobbs Act robbery counted as a crime
of violence; it did not say that the robbery had to be completed.
Hughes now appeals, challenging the jury instructions on the

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elements of § 924(c) and the sufficiency of the evidence of
Hobbs Act robbery.
II. THE ERRONEOUS § 924(C ) JURY INSTRUCTIONS
D ID N OT P REJUDICE HUGHES
Hughes first argues that the District Court’s § 924(c) jury
instructions misstated the crime-of-violence element. Because
he never raised this objection at trial, we review for plain error.
United States v. Olano, 507 U.S. 725, 731 (1993). Under
Olano’s four-pronged test, he must show (1) that the court
erred, (2) that the error is obvious, (3) that it “affected the out-
come of the district court proceedings,” and (4) that it “seri-
ously affects the fairness, integrity or public reputation of
[those] proceedings.” Id. at 732–36 (brackets and internal quo-
tation marks omitted). The District Court committed an obvi-
ous error. But because there was extensive evidence that Hughes
took part in the crimes, the error did not affect the outcome.
A. The District Court plainly erred by instructing the
jury that even an attempted Hobbs Act robbery can
support a § 924(c) charge
A § 924(c) conviction must rest on a predicate crime—here,
Hobbs Act robbery. The predicate crime must require, as an
element, “the use, attempted use, or threatened use of physical
force against the person or property of another.” § 924(c)(3)(A).
Yet not all Hobbs Act robberies are crimes of violence. Although
completed robberies are, attempted robberies are not. United
States v. Stoney, 62 F.4th 108, 112–13 (3d Cir. 2023) (com-
pleted robbery); United States v. Taylor, 596 U.S. 845, 851
(2022) (reasoning that one can attempt a robbery without using
force or attempting or threatening to do so).

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To tell whether Hughes committed a crime of violence, we
apply the categorical approach. Mathis v. United States, 579
U.S. 500, 504 (2016). The Hobbs Act is divisible: it “list[s]
elements in the alternative, and thereby define[s] multiple
crimes,” including completed and attempted robberies. Id. at
505. So we apply the variant known as the modified categorical
approach, looking to documents like jury instructions to figure
out “what crime, with what elements, [Hughes] was convicted
of.” Id. at 505–06; Stoney, 62 F.4th at 112.
The jury instructions, though, do not clear things up. We
review them “as a whole” to determine “what a reasonable juror
could have understood the charge as meaning.” California v.
Brown, 479 U.S. 538, 541 (1987) (quoting Francis v. Franklin,
471 U.S. 307, 315–16 (1985)); see also Savarese v. Agriss, 883
F.2d 1194, 1202–05 (3d Cir. 1989). The District Court told the
jury that Hughes’s predicate crime was a Hobbs Act robbery.
But it had earlier explained that the jury could convict him of
that crime even for attempting a robbery. Taken together, the jury
may have reasonably understood those instructions to mean
that attempted robbery is enough to convict under § 924(c). See
United States v. Dobson, 419 F.3d 231, 238–39 (3d Cir. 2005).
That misstated the crime-of-violence element and was an error.
We do not fault the District Court. At the time of Hughes’s
trial, the only circuit court to consider the question had held
that attempted Hobbs Act robbery was a crime of violence.
United States v. St. Hubert, 909 F.3d 335, 351 (11th Cir. 2018).
A year after the trial, so did we. United States v. Walker, 990
F.3d 316, 328 (3d Cir. 2021). But the Supreme Court over-
turned those holdings in United States v. Taylor. Because settled

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law now forecloses the District Court’s approach, the error is now
plain. Henderson v. United States, 568 U.S. 266, 279 (2013).
B. The erroneous jury instruction did not influence
the jury’s verdict
Yet that plain error is not enough to reverse. Hughes must
also satisfy Olano’s third prong by proving that the error affected
the trial’s outcome. United States v. Jackson, 849 F.3d 540,
555 (3d Cir. 2017). He was not prejudiced if “it is highly prob-
able that the error did not contribute to the judgment.” United
States v. Greenspan, 923 F.3d 138, 149 (3d Cir. 2019) (internal
quotation marks omitted).
The first two Olano prongs considered a purely legal ques-
tion: how to apply the categorical approach. But the third
Olano prong “requires a record-intensive factual inquiry.”
United States v. Ali, 991 F.3d 561, 575 (4th Cir. 2021) (Wil-
kinson, J.). We read the whole record to figure out why the jury
convicted and whether different instructions would have
changed its mind. So at this step, we are not constrained by the
modified categorical approach’s “limited class of documents.”
Mathis, 579 U.S. at 505. Rather, we scrutinize the full factual
record to discern what predicate crime the jury found.
Here, the difference between a completed robbery and an
attempted one comes down to whether property changed
hands. See Taylor, 596 U.S. at 851–52. On these facts, the jury
could not plausibly have thought that Hughes stopped short of
taking his victims’ property. The first robbery victim testified
that Hughes took his marijuana and cash. As for the second
robbery, an eyewitness saw Hughes go through the pizza delivery
driver’s pockets, and the pizzeria owner confirmed that the

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driver would have had almost $100 on him. For both robberies,
the witnesses’ accounts were corroborated by surveillance vid-
eos. There was no contrary evidence or reason to believe that,
after demanding the victims’ belongings, Hughes stopped short
of taking them. So if the District Court had instructed the jury
that it had to find that Hughes completed the robberies, the jury
would still have convicted. Because the instructional error did
not prejudice him, the jury’s § 924(c) convictions are sound.
III. THE GOVERNMENT HAD SUFFICIENT EVIDENCE
TO C ONVICT HUGHES
Hughes also argues that the government lacked evidence
that he took part in both robberies and that the pizzeria was
engaged in interstate commerce. Not so. The first robbery vic-
tim identified Hughes in a photo array, in a surveillance video,
and from the witness stand. And he testified that Hughes had
robbed him. Hughes insists that the victim’s testimony was
unbelievable because he had “shot up half the city” and gotten
paid by the government. Appellant’s Br. 14–15. But the jury
heard this impeachment evidence and still convicted. We “pre-
sume that the jury properly evaluated credibility,” so we will
not disturb its finding. United States v. Iafelice, 978 F.2d 92,
94 (3d Cir. 1992).
As for the second robbery, Hughes objects that the pizza
delivery driver never testified. Even so, there was enough evi-
dence that Hughes took part in that robbery too. After Hughes’s
mother answered the door and let police in, they found Hughes
and Henderson sleeping upstairs in the same bedroom. When
they searched the house, they found clothes matching those
worn by the robber plus the gun that shot the delivery driver.

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Hughes’s phone records from the night of the robbery show
calls and texts with Henderson and a call to the pizzeria. And
on the surveillance video, one of the robbers walked like
Hughes. A rational jury could easily have pieced this evidence
together, concluding that Hughes and Henderson robbed the
driver together.
Finally, there was enough proof that robbing the pizza
delivery driver plausibly affected interstate commerce. The
Hobbs Act requires only that a robbery have a “de minimis
effect on interstate commerce”; that effect may even be “poten-
tial” rather than actual. United States v. Walker, 657 F.3d 160,
180 (3d Cir. 2011) (internal quotation marks omitted). It is
enough that this pizzeria buys supplies from out-of-state vendors.
Because the robbery interfered with the pizzeria’s assets, it af-
fected interstate commerce. See id. at 182.
* * * * *
On these facts, the jury must have found that Hughes not
only took part in two robberies, but also completed both.
Though the judge should have instructed the jury that a § 924(c)
conviction requires a completed Hobbs Act robbery, that instruc-
tional error did not affect the outcome. We will affirm the judg-
ment of conviction and sentence.

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