Opinion
17-16764
05-27-2022
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARCUS MAJOR, Defendant-Appellant.
NOT FOR PUBLICATION
Submitted May 18, 2022 [**]
Appeal from the United States District Court for the Eastern District of California, Nos. 1:17-cv-00360-LJO, 1:07-cr-00156-LJO-1, Lawrence J. O'Neill, District Judge, Presiding
Before: LEE and BRESS, Circuit Judges, and FITZWATER, [***] District Judge.
MEMORANDUM [*]
Marcus Major ("Major") appeals the denial of his motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his 18 U.S.C. § 924(c) convictions and sentences. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.
We review de novo the district court's denial of a § 2255 motion, and we review the district court's factual findings for clear error. United States v. Guess, 203 F.3d 1143, 1145 (9th Cir. 2000).
1. We do not reach the government's argument that we should dismiss in part the certificate of appealability ("COA") as improvidently granted. See Phelps v. Alameda, 366 F.3d 722, 726 (9th Cir. 2004) ("[M]erits panels are not required to examine allegedly defective COAs in the face of jurisdictional challenges.").
2. It is apparent from the record that Major's § 924(c) convictions are predicated on Hobbs Act robbery, not conspiracy to commit Hobbs Act robbery. But Major contends that, after United States v. Davis, 139 S.Ct. 2319 (2019), his Hobbs Act robbery convictions are invalid predicate crimes of violence for a § 924(c) conviction because they are based on either a Pinkerton or an aiding-and-abetting theory of liability. This argument is foreclosed by our precedents. See Young v. United States, 22 F.4th 1115, 1122-23 (9th Cir. 2022) (explaining that "there is no distinction between aiding-and-abetting liability and liability as a principal under federal law[, ]" and holding that "aiding and abetting a crime of violence, such as armed bank robbery, is also a crime of violence"); United States v. Henry, 984 F.3d 1343, 1355-56 (9th Cir. 2021) (rejecting argument that § 924(c) conviction was invalid if predicate offense was based on Pinkerton liability).
Borden v. United States, 141 S.Ct. 1817 (2021) (plurality opinion), is not clearly irreconcilable with these binding precedents. See United States v. Boitano, 796 F.3d 1160, 1164 (9th Cir. 2015) (recognizing that three-judge panel may not overrule a prior panel opinion absent clearly irreconcilable, intervening higher authority). In Borden the Court held that a criminal offense that requires only a mens rea of recklessness cannot qualify as a "violent felony" under the force (or elements) clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i). Borden, 141 S.Ct. at 1821-22, 1834. But the Court did not address whether § 924(c) convictions can be predicated on crime-of-violence convictions that are based on a Pinkerton or an aiding-and-abetting theory of liability. The Court explicitly stated in Borden that it was not addressing accessory liability. Id. at 1823 n.3 (stating that the Court had "no occasion to address" inchoate crimes, such as conspiracy, or aiding-and-abetting liability).
3. Major has also briefed the uncertified issue of whether after Davis, Hobbs Act robbery-committed as a principal-is a valid predicate crime of violence for a § 924(c) conviction. Construing this argument as a motion to expand the COA, see Ninth Cir. R. 22-1(e); Mardesich v. Cate, 668 F.3d 1164, 1169 n.4 (9th Cir. 2012), we deny the motion because Major has not "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see United States v. Dominguez, 954 F.3d 1251, 1260-61 (9th Cir. 2020) (reaffirming that Hobbs Act robbery is a crime of violence under § 924(c)(3)(A)). Regardless, Borden confirmed preexisting Ninth Circuit precedent that mere recklessness is not sufficient under the force clause, United States v. Grajeda, 581 F.3d 1186, 1191 (9th Cir. 2009), and Hobbs Act robbery in all events requires a greater mens rea than recklessness, Dominguez, 954 F.3d at 1261.
Because Hobbs Act robbery is a crime of violence, regardless of the theory of liability that Major's convictions are based on, we affirm the district court's denial of Major's § 2255 motion.
We therefore have no need to reach the government's argument that Major procedurally defaulted his claims.
AFFIRMED.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
[**] The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
[***] The Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation.