Opinion
CV 19-05932 PHX DGC CDB CR 06-00717(2) PHX DGC
03-21-2021
Adnan Alisic, Defendant/Movant, v. United States of America, Respondents.
REPORT AND RECOMMENDATION
Camille D. Bibles United States Magistrate Judge
Before the Court is Movant Adnan Alisic's amended second or successive § 2255 motion in which he challenges his conviction and sentence for violation of 18 U.S.C. § 924(c). Alisic filed an application in the United States Court of Appeals for the Ninth Circuit seeking leave to file a second or successive motion pursuant to 28 U.S.C. § 2255. (Civil Docket (“CV”) ECF No. 13-1). The Ninth Circuit granted Alisic leave to proceed and ordered the matter transferred to the District Court on August 28, 2019. (CV ECF No. 13).
I Background
A complaint filed on July 23, 2006, charged Alisic and two codefendants with the robbery an armored car. (Criminal Docket (“CR”) ECF No. 1). On September 19, 2006, an indictment charged Alisic and three codefendants with one count of conspiracy in violation of 18 U.S.C. §§ 2, 371, and 1951 (the “Hobbs Act”); one count of interference with interstate commerce by threats, violence, “and” robbery, and aiding and abetting, in violation of 18 U.S.C. §§ 2 and 1951; and one count of using a firearm in a crime of violence in violation of 18 U.S.C. § 924(c). (CR ECF No. 35). A second superseding indictment, returned on November 6, 2007, charged Alisic and one codefendant with one count of conspiracy in violation of 18 U.S.C. §§ 2 and 1951 (Count One); one count of interference with interstate commerce by threats, violence “and” robbery, and aiding and abetting, in violation of 18 U.S.C. §§ 2 and 1951 (Count Two); and one count of using a firearm in a crime of violence in violation of 18 U.S.C. § 924(c) (Count Three). (CR ECF No. 133).
At the conclusion of a jury trial during which Alisic testified, the jury found Alisic guilty of “Conspiracy, ” “Interference with Commerce by Threats, Violence and Robbery, ” and “Use of a Firearm During the Commission of a Crime of Violence.” (CR ECF No. 161). Additionally, the jury found Alisic criminally responsible as a principal, aider and abettor, or coconspirator, for the conduct of both possessing and carrying a firearm during the commission of the crimes. (Id.). On April 9, 2008, the Court sentenced Alisic to concurrent terms of 151 months' imprisonment pursuant to the conspiracy and Hobbs Act convictions, and to the mandatory consecutive term of 60 months' imprisonment on the § 924(c) conviction. (CR ECF Nos. 209 & 210).
The Federal Bureau of Prisons' inmate information database indicates Alisic's release date is November 1, 2021.
Alisic took a timely appeal of his conviction under § 924(c) and his sentence. Alisic alleged the Court erred by “denying his motion under Federal Rule of Criminal Procedure 29 for a judgment of acquittal on the government's 18 U.S.C. § 924(c) charge.” United States v. Alisic, 357 Fed.Appx. 778, 779 (9th Cir. 2009). He also argued issues regarding the Court's application of the United States Sentencing Guidelines. Id. at 779-80.
Alisic asserted on appeal:
The judge erred in denying defendant's motion for acquittal on the 18 U.S.C. 924 (c) firearm charge where the evidence was insufficient to support Mr. Alisic's conviction for possession or carrying a firearm; and even if such evidence existed, no evidence supported the charge, as it must, that the firearm was used “in furtherance of” the crime. A conviction for possession of a firearm “in furtherance of” a drug trafficking offense or crime of violence under § 924(c) requires proof that the defendant possessed the weapon to promote or facilitate the underlying crime. The mere presence of a firearm in an area where a criminal act occurs is not a sufficient basis for imposing this particular mandatory sentence. The requirement that there be a nexus between the firearm and the offense was simply not satisfied in this case. The jury's verdict form specifically indicated that it found that Alisic did not “use, ” but merely “possess[ed]” or “carr[ied]” the firearm, either as a principal, aider and abettor or co-conspirator, therefore contradicting the judge's unfounded conclusion that the weapon was somehow “used in furtherance” of the offense, when denying defendant's Rule 29 motion. Moreover, contrary to the judge's finding, there was no conclusive evidence that the gun was loaded at the time; the agent only speculated that the gun may have contained one bullet (out of its capacity of seven) when found. The only other testimony linking Alisic to the 9 mm. pistol was the confused and contradictory testimony of [codefendant D.M.], and his father, [codefendant B.M.], both government “snitch” witnesses and plea bargain beneficiaries.Appellant's Opening Brief, United States v. Alisic, 2009 WL 2877450 (9th Cir. Jan. 9, 2009) (no pagination, internal footnotes omitted).
The Ninth Circuit Court of Appeals affirmed Alisic's 924(c) conviction and sentence, concluding:
Under the first clause of § 924(c), the government presented persuasive evidence that Alisic carried the pistol in the van he used to commit the robbery. See Muscarello v. United States, 524 U.S. 125, 126-27 (1998) (holding that “carries a firearm” includes one who knowingly possesses and conveys a firearm in a vehicle). With respect to the “in relation to any crime of violence” element, the government presented evidence that Alisic told [a codefendant] that the gun would “be used if somebody's trying to shoot back at us.” This evidence meets this court's admonition that carrying a firearm relates to the underlying offense when the firearm facilitated or had a role in the crime.Id. at 779. The United States Supreme Court denied a petition for a writ of certiorari. See United States v. Alisic, 559 U.S. 1024 (2010).
Alisic filed a pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, asserting he was denied his right to the effective assistance of trial counsel with regard to counsel's defense strategy of duress, counsel's trial performance with regard to witnesses, and counsel's performance at sentencing. The Court adopted the Report and Recommendation of the magistrate judge and denied relief. See Alisic v. United States, 2012 WL 353770 (D. Ariz. Feb. 3, 2012). Alisic appealed and the Ninth Circuit Court of Appeals denied a certificate of appealability, id., and the Supreme Court denied a petition for a writ of certiorari. See Alisic v. United States, 568 U.S. 1245 (2013).
Alisic, proceeding pro se, sought leave to file a second or successive motion pursuant to 28 U.S.C. § 2255 on January 10, 2019. (CV ECF No. 13-5 at 3-6). Alisic asserted:
On November 21, 2018, based on jury instructions, I found out that I was found guilty of extortion and not robbery. Since Johnson and Dimaya invalidated the residual clause of 924(c), and since extortion is not a crime of violence under the “force” clause of 924(c), I am innocent of 924(c) charge.(CV ECF No. 13-5 at 5). The Government responded that, although Alisic based his claims on Johnson v. United States, 576 U.S. 591 (2015) and Sessions v. Dimaya, 138 S.Ct. 1204 (2018), it was actually United States v. Davis, 139 S.Ct. 2319 (2019) (issued after Alisic filed his motion for leave to file a second or successive § 2255 motion), that permitted Alisic to attack his § 924(c) conviction. (CV ECF No. 13-6 at 1-2). The Government did not oppose certification pursuant to 28 U.S.C. § 2255(h), but reserved the right to oppose the second or successive § 2255 motion on the merits. (Id.).
Without opining as to the merits of Alisic's claim, the Ninth Circuit granted leave to file a second or successive § 2255 motion and transferred the matter to the District Court. (CV ECF No. 13). Alisic docketed a pro se § 2255 motion. (CV ECF No. 14). Alisic obtained counsel and sought leave to file an amended motion (CV ECF No. 17), and filed an amended § 2255 motion on May 21, 2020. (CV ECF No. 25). The Government responded to the motion asserting, inter alia, some or all of Alisic's claims are procedurally defaulted (CV ECF No. 29), and Alisic filed a reply (CV ECF No. 32).
The Government asserts: “Alisic's amended successive § 2255 motion should be denied because the claims he raises are procedurally barred. Until now, Alisic has never asserted that the jury instructions allowed the jury to convict him of Hobbs Act extortion, or that his predicate conviction was not a crime of violence, and thus could not serve as the basis for a § 924(c) conviction.” (CV ECF No. 29 at 5).
Alisic argues:
Because the jury was permitted to convict Alisic for either Hobbs Act robbery or extortion, and Hobbs Act extortion, under 18 U.S.C. § 1951(a), does not qualify as a “crime of violence” under either § 924(c)(3)(A) or § 924(c)(3)(B) (in light of Davis), Alisic's conviction under 18 U.S.C. § 924(c) is unconstitutional under Davis, and must be vacated. A general verdict of guilty does not reveal any unanimous finding by the jury that the defendant was guilty of carrying a firearm during either of the alternative methods (robbery and extortion) of violating the Hobbs Act. See, e.g., In re Gomez, 830 F.3d 1225, 1227 (11th Cir. 2016). Moreover, the jury was wrongly instructed that Count 2 was necessarily a “crime of violence, ” an element of Count 3.(ECF No. 25 at 12-13). Alisic presents two intertwined claims for relief: (1) the jury instructions “permitted” the jury to convict him of Hobbs Act extortion, rather than Hobbs Act robbery; and (2) because he was, he asserts, actually convicted of Hobbs Act extortion and Hobbs Act extortion is not a “crime of violence” in light of the decision in Davis, his conviction and sentence for violation of § 924(c) must be vacated.
II. Governing law
Section 2255 is, essentially, a means of habeas corpus relief for federal prisoners. See United States v. Hayman, 342 U.S. 205, 212 (1952). A federal court may vacate, set aside, or correct a federal prisoner's sentence if the sentence was imposed in violation of the Constitution or laws of the United States, the court was without jurisdiction to impose the sentence, the sentence was in excess of the maximum authorized by law, or if the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a); United States v. Swisher, 811 F.3d 299, 306 (9th Cir. 2016).
B. Procedural default
Because “[h]abeas review is an extraordinary remedy and will not be allowed to do service for an appeal, ” Bousley v. United States, 523 U.S. 614, 621 (1998), a section 2255 movant procedurally defaults all claims not raised in his direct appeal, other than claims asserting the movant was deprived of their right to the effective assistance of counsel. See Massaro v. United States, 538 U.S. 500, 504-05 (2003); United States v. Frady, 456 U.S. 152, 167-68 (1982); United States v. Ratigan, 351 F.3d 957, 964 (9th Cir. 2003); United States v. Skurdal, 341 F.3d 921, 925 (9th Cir. 2003). “To challenge a conviction in a § 2255 proceeding based upon a claim of error that could have been raised on direct appeal but was not, a defendant must demonstrate both cause to excuse the procedural default, as well as actual prejudice resulting from that error.” United States v. Seng Chen Yong, 926 F.3d 582, 590 (9th Cir. 2019). Absent a showing of both cause for the default and a showing of prejudice arising from the default, or a colorable claim of factual innocence rather than mere legal insufficiency, the Court should not consider the merits of a § 2255 claim not raised in the movant's appeal. See Bousley, 523 U.S. at 622, Frady, 456 U.S. at 167-68; Ratigan, 351 F.3d at 962.
It is arguable whether the previous unavailability of the Davis claim raised by Alisic establishes cause for his failure to raise a Davis claim on appeal. See United States v. Garcia, 811 Fed.Appx. 472, 479 (10th Cir. 2020) (stating: “Cause excusing procedural default exists where a claim is so novel that its legal basis was not reasonably available to counsel at the time of the direct appeal, ” (internal quotations omitted), and “we have said that a Johnson II claim regarding [the Armed Career Criminal Act's] residual clause is such a claim.”); Hanna v. United States, 2019 WL 11717103, at *3 (11th Cir. July 26, 2019) (finding the previous unavailability of Johnson and Davis claims established cause for the failure to raise a 924(c) Hobbs Act claim on appeal, but denying a certificate of appealability because the movant could not establish prejudice as the claims were without merit); Lee v. United States, 2018 WL 4906327, at *15-17 (D. Ariz. July 6, 2018) (discussing application of the “reasonably available” doctrine of Reed v. Ross, 468 U.S. 1, 17-20 (1984)). However, it appears Alisic's Davis claim is without merit and, therefore, he fails to establish prejudice with regard to any procedural default of his claim: “[T]he ‘showing of prejudice' required to overcome procedural default on collateral review ‘is significantly greater than that necessary' to establish plain error on direct review.” United States v. Pettigrew, 346 F.3d 1139, 1144 (D.C. Cir. 2003) (quoting Murray v. Carrier, 477 U.S. 478, 493-94 (1986)), cited in United States v. Salas, 807 Fed.Appx. 218, 227 (4th Cir. 2020), cert. Denied, __ S.Ct.__, 2021 WL 78368 (Jan. 11, 2021) (No. 20-6266).
Alisic's claim regarding the instructions given to the jury in his criminal trial is procedurally defaulted, as he failed to assert a claim regarding the jury instructions on appeal. He fails to show cause for this procedural default, as the argument he raises regarding the jury instructions was available at the time of his appeal, and he also fails to show prejudice arising from his default of this claim because the claim is without merit.
III. Analysis
Section 924(c) provides, in relevant part, that any person who uses or carries a firearm in relation to a “crime of violence” shall, in addition to the punishment provided for such “crime of violence, ” be sentenced to a consecutive term of imprisonment of not less than five years. 18 U.S.C. § 924(c)(1)(A)(i). For purposes of 18 U.S.C. § 924(c)(1)(A), a “crime of violence” is defined as an offense that is a felony and
(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.18 U.S.C. § 924(c)(3). Courts generally refer to clause (A) of this subsection as the “use of force clause” or the “elements clause, ” and clause (B) is known as the “residual clause.”
In June of 2019 the United States Supreme Court held that the residual clause of § 924(c)(3) was unconstitutionally vague, in accordance with its holdings in Johnson and Dimarya finding identical language in other statutes unconstitutionally vague. See Davis, 139 S.Ct. at 2326-36. However, although Davis invalidated the residual clause, i.e., § 924(c)(3)(B), it left intact the elements clause, § 924(c)(3)(A). See Id. at 2323-24. Alisic was charged with and convicted of Hobbs Act robbery, which the Ninth Circuit recently reaffirmed is a “crime of violence” under the elements clause of § 924(c). See United States v. Dominguez, 954 F.3d 1251, 1261 (9th Cir. 2020), petition for cert. filed, (U.S. Jan. 26, 2021) (No. 20-1000).
Subsequent to the Supreme Court's decision in Davis the federal appellate courts have uniformly concluded that Hobbs Act robbery is a crime of violence under the elements clause of § 924(c). See United States v. Henry, 984 F.3d 1343, 1356 (9th Cir. 2021); United States v. Tuan Ngoc Luong, 965 F.3d 973, 990 (9th Cir. 2020); Dominguez, 954 F.3d at 1261; United States v. Walker, 974 F.3d 193, 201 (2d Cir. 2020); United States v. Richardson, 948 F.3d 733, 742 (6th Cir. 2020) (collecting cases from the First, Third, Sixth, Tenth, and Eleventh Circuits); United States v. Ingram, 947 F.3d 1021, 1025 (7th Cir.), cert. denied, 141 S.Ct. 323 (2020); United States v. Jones, 919 F.3d 1064, 1072 (8th Cir. 2019); United States v. Steward, 793 Fed.Appx. 188, 190 (4th Cir. 2019), cert. denied, 141 S.Ct. 167 (2020). The Ninth Circuit has further held this determination is not affected if the defendant's criminal liability is pursuant to coconspirator or aiding and abetting liability. See United States v. Williams, 835 Fed.Appx. 283, 284 (9th Cir. 2021) (“the result is the same whether Williams's Hobbs Act robbery conviction was pursuant to an aiding and abetting or vicarious coconspirator theory of liability.”). Accordingly, if Alisic was indeed convicted of Hobbs Act robbery, rather than Hobbs Act extortion, his claim is without merit.
Alisic argues that his § 924(c) conviction must be vacated because the instructions given to his jury allowed the jury to convict him of Hobbs Act robbery or Hobbs Act extortion. Because, he argues, Hobbs Act extortion is not a “crime of violence” under the elements clause, there was no qualifying predicate offense to sustain his § 924(c) conviction.
The Government contends that Alisic's claim regarding the jury instructions is procedurally defaulted because he failed to raise this claim on direct appeal. The Government correctly notes Alisic has not previously asserted the jury instructions allowed the jury to convict him of Hobbs Act extortion, or that his predicate conviction on Count Two was not one for a “crime of violence” and thus could not serve as the basis for his § 924(c) conviction. Accordingly, the Government argues, the claim raised in Alisic's pending § 2255 motion is procedurally defaulted, citing Sanchez-Llamas v. Oregon, 548 U.S. 331, 350-51 (2006) (“The general rule in federal habeas cases is that a defendant who fails to raise a claim on direct appeal is barred from raising the claim on collateral review.”). The Government further asserts Alisic is unable to establish cause and prejudice, or actual innocence, excusing this default.
Because Alisic's claim that the jury instructions allowed the jury to convict based only on the elements of extortion rather than robbery fails on the merits, he fails to establish prejudice arising from his procedural default of his claim regarding the jury instructions and his claim that his § 924(c) conviction must be vacated under Davis also fails.
Hobbs Act extortion and Hobbs Act robbery are separate crimes with different elements. See United States v. McCallister, 2016 WL3072237, at *8-9 (D.D.C. 2016) (distinguishing between cases dealing with Hobbs Act extortion and Hobbs Act robbery, and concluding that Hobbs Act robbery is categorically a crime of violence under the elements clause of § 924(c)). The subject crimes are defined separately in § 1951:
(b) As used in this section-
(1) The term “robbery” means 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.
(2) The term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.
A critical distinction between Hobbs Act robbery and Hobbs Act extortion, per this statutory language, is that robbery is the taking of property against a person's will by means of actual or threatened force, and extortion is obtaining property from a person by inducing them to relinquish the property. As noted by the Government, the Ninth Circuit Model Jury Instructions separate the criminal liability for a defendant's conduct into Hobbs Act Extortion by force (Instruction 8.142) and Hobbs Act Extortion by nonviolent threat (Instruction 8.142A). This distinction is instructive in that “by force” and “by nonviolent threat” are two alternative elements of, rather than alternative means of, violating 18 U.S.C. § 1951. See United States v. Dixon, 805 F.3d 1193, 1198 (9th Cir. 2015) (considering whether robbery in violation of California Penal Code § 211, a divisible crime, was a crime of violence for purposes of the Armed Career Criminal Act, i.e., § 924(c)).
None of the documents or trial proceedings in this matter referenced the term “extortion” in addition to or in place of robbery. All of the facts adduced at trial supported the elements of robbery, rather than extortion.
The jury was instructed, in pertinent part:
Count 1 charges the defendant with conspiracy in violation of Title 18 United States Code sections 1951 and 2.
Count 2 charges the defendant with interference with commerce by threats, violence, or robbery, in violation of Title 18 United States Code sections 1951 and 2.
Count 3 charges the defendant with use of a firearm in a crime of violence, in violation of Title 18 United States Code sections 924(c) and 2.(CR ECF No. 271 at 90). The Court also instructed the jury:
The defendant is charged in Count 2 of the Second Superseding Indictment with the crime of interference with commerce by threats, violence, or robbery, in violation of section 1951 of Title 18 of the United States Code.
In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant induced Christopher Michael Williams and/or Joshua Lane Ouelette of the Bantek armored car company to part with property by the wrongful use of threats, violence, or robbery[.]
***
The term “robbery” means the unlawful taking or obtaining of personal property from a person against his will by means of actual or threatened force or violence or fear of injury to his person or property, or property in his custody or possession.(CR ECF No. 271 at 8-9). Notably, the jury was instructed that robbery required a finding of fact that the subject “property” be taken (or obtained) against the will of the person from whom the property was taken by means of “actual or threatened force or violence or fear of injury . . .” (CR ECF No. 271 at 93).
Additionally, the prosecutor stated during closing argument:
And in this case there's no question that a robbery occurred. And that money was taken from this armored car. And there's no question that actual threatened force and violence and fear of injury were used against the victims. Pepper spray was actual force and the AK-47 was threatened force. These [armored car] guards and the innocent bystander witnesses feared for their lives. Really there's no question about the robbery here.(CR ECF No. 271 at 5-6).
The prosecutor also asserted Alisic himself used pepper spray on the guards and later admitted this to law enforcement. (CR ECF No. 271 at 14, 19, 27). At trial Alisic did not deny his involvement in the crimes comprising Counts One and Two, but instead argued he acted under duress. (CR ECF No. 271 at 51).
On the verdict form, the jury indicated it found Alisic guilty of Count Two “Interference with Commerce by Threats, Violence and Robbery.” (CR ECF No. 161) (emphasis added). Similarly, the Judgment and Commitment issued by the Court provided Alisic was guilty of “Interference with Commerce by Threats, Violence and Robbery and Aid and Abet.” (CR ECF No. 210 at 1) (emphasis added). These documents describe the means of committing the Hobbs Act offense in the conjunctive, stating that Alisic committed the offense by threats, violence, and robbery. Nowhere in the trial testimony, the jury instructions, or in any argument made to the jury, was the jury instructed or informed that the armored car guards delivering currency to the casino had relinquished the stolen money because they were “induced” to do so. The victims in this matter, the armored car guards, were attacked with pepper spray and robbed by Alisic while his codefendant, who was wearing a ski mask, brandished a plastic AK-47 style assault rifle.
Alisic argues that the use of the word “threats” in the jury instruction brings nonviolent blackmail and economic extortion within the scope of the count of conviction, implying the jury could have concluded the prosecution only established the elements of extortion. (CV ECF No. 25 at 11-12). This argument was squarely rejected by the Ninth Circuit Court of Appeals in Dominguez. The defendant in Dominguez, who was also convicted of Hobbs Act robbery after robbing an armored car, argued that Hobbs Act robbery could be committed by placing a victim in fear of injury to some intangible economic interest, and such threats would not require the use of violent physical force. See 954 F.3d at 1260. The Dominguez panel declined to analyze whether Hobbs Act robbery through fear of economic injury qualifies as a crime of violence under the elements clause, because the defendant “fail[ed] to point to any realistic scenario in which a robber could commit Hobbs Act robbery by placing his victim in fear of injury to an intangible economic interest.” Id.
The Ninth Circuit Court of Appeals also more recently rejected the same argument Alisic makes with regard to the jury instructions given in his case, and held that a Hobbs Act robbery jury instruction which erroneously incorporated some of the language of Hobbs Act extortion did not rise to the level of reversible error. See United States v. Soto-Barraza, 947 F.3d 1111, 1118-19 (9th Cir.), cert. denied, 141 S.Ct. 599 (2020). Because the Ninth Circuit has held a similar claim does not rise to the level of reversible error, Alisic fails to establish prejudice arising from his procedural default of his claim regarding the jury instructions. “[T]he showing of prejudice required to overcome procedural default on collateral review is significantly greater than that necessary to establish plain error on direct review.” Pettigrew, 346 F.3d at 1144. See also Frady, 456 U.S. at 165 (“the plain-error standard is inappropriate for the review of a state prisoner's collateral attack on erroneous jury instructions.”).
In Soto-Barraza the defendants were convicted of murder, conspiracy to commit Hobbs Act robbery, attempt to commit Hobbs Act robbery, assault, and discharging a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c). See 947 F.3d at 1115. The defendants argued the jury instruction for attempted Hobbs Act robbery allowed them to be convicted of extortion because it omitted language that the defendants took the property “against the victim's will, ” by means of “fear of injury.” Id. at 1118. The subject jury instruction provided: “Defendants intended to induce drug smugglers to part with property by the wrongful use of actual or threatened force, violence, or fear.” Id. The
Ninth Circuit rejected the argument that the instruction acted as a constructive amendment to the indictment which allowed the defendants to be convicted of extortion, stating:
The government indicted the defendants for Hobbs Act robbery and adduced evidence to prove that offense, offering no evidence that the defendants engaged in extortion. We reject constructive amendment claims when the government does not introduce evidence at trial “that would enable the jury to convict the defendant for conduct with which he was not charged.”Id. at 1119 (citation omitted). The Soto-Barraza panel concluded that the omission of the phrases “against his will” and “fear of injury” were only slight variations from the statutory definition of the crime and did not make the instruction misleading or inadequate, especially given that the model jury instruction at the time contained identical language. Id.
The same reasoning applies in this matter. The slight differences between the jury instruction and the statutory definition of Hobbs Act robbery was not such that the jury could be said to have convicted Alisic of extortion. See United States v. Williams, 835 Fed.Appx. 283, 283 (9th Cir. 2021) (concluding there was no error in a Rule 11 hearing involving a plea to Hobbs Act robbery when the district court restated the elements of the offense set forth in the plea agreement, which in turn mirrored the operative Ninth Circuit Model Criminal Jury Instructions, stating: “Even if the instructions, and thus the plea agreement, mistakenly implied that Hobbs Act robbery can be committed by non-violent pressure inducing an individual to part with property, that mistake did not affect [the defendant's] ‘substantial rights.'”); United States v. Larsen, 810 Fed.Appx. 508, 509 (9th Cir. 2020) (finding the district court did not commit plain error when jury instructions were consistent with statutory language and model jury instruction). Just as in Soto-Barraza, the Second Superseding Indictment in this case charged Alisic with “robbery, ” and all of the overt acts alleged in the indictment and proven at trial were evidence of a robbery, not extortion. (CR ECF No. 133 at 1-5). Like the jury instructions in Soto-Barraza, the instructions in this case included the word “induced.” However, the jury instructions in this case also included a definition of robbery which advised the jury that robbery involved the taking of property “from the person, against his will” by means of “force, violence or fear of injury.” (CR ECF No. 153 at 18). In other words, the jury instructions in this case were even more clearly aligned with the statutory language of Hobbs Act robbery than those upheld by the Ninth Circuit in Soto-Barraza.
Additionally, Alisic asserts that the jury instruction on the § 924(c) charge improperly removed the jury's ability to find an element of the § 924(c) violation, i.e., that Hobbs Act robbery is a “crime of violence.” (ECF No. 25 at 13.) However, whether an offense is a “crime of violence” is a matter of law determined by the Court, not an element of the crime found by the jury. See United States v. Amparo, 68 F.3d 1222, 1224 (9th Cir. 1995) (holding that whether an offense is a crime of violence is not a fact for the jury to decide).
Accordingly, IT IS RECOMMENDED that Alisic's Amended Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 (CV ECF No. 25) be DENIED.
This report and recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have fourteen (14) days from the date of service of this recommendation within which to file specific written objections with the Court. See Fed. R. Civ. P. 72(b)(2). Thereafter, the parties have 14 days within which to file a response to the objections. Id.
Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgement entered pursuant to the Magistrate Judge's recommendation. See Fed. R. Civ. P. 72.