Dana L. Christensen, Chief Judge United States District Court

ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

This matter comes before the Court on Defendant/Movant Acton's motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Acton seeks relief under Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551 (2015), which was made retroactive to final judgments by Welch v. United States, ___ U.S. ___, 136 S. Ct. 1257 (2016).

I. Procedural Background

Acton pled guilty to two offenses, one charge alleging violation of 18 U.S.C. § 924(c) (Count 2), and a predicate "crime of violence" (Count 1).

Due to what appears to be a typographical error, the Indictment failed to charge an offense in Count 2. See Indictment (Doc. 1) at 2-3. In Count 1, the indictment alleged Acton "used actual and threatened force against G.G., to unlawfully take from the owner, against said owner's will, approximately ten firearms, in the presence of G.G. . . . in violation of 18 U.S.C. §§ 1951(a) and 2." Indictment at 2.

On August 8, 2012, Acton pled guilty to both Count 1 and Count 2. See Minutes (Doc. 60). On November 8, 2012, Acton was sentenced to serve 18 months on Count 1 and a consecutive 84 months on Count 2 for a total prison term of 102 months. See Minutes (Doc. 74); Judgment (Doc. 77) at 2. Acton did not appeal. His conviction became final on November 23, 2012. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012).

II. Legal Background

A. 18 U.S.C. § 924(e)

In Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551 (2015) ("Johnson" or "Johnson II"), the Supreme Court considered the meaning of a provision in the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). The ACCA imposes a harsher sentence on a person convicted of a firearms offense if the person has three prior convictions for a violent felony or controlled substance offense. The Act defines a "violent felony" as a felony that:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]

The Supreme Court found the residual clause so vague that it deprived defendants of fair notice of the consequences of their decisions and so loose that it invited arbitrary enforcement. Therefore, the decision held, federal sentencing courts may no longer enhance a defendant's sentence based on a prior conviction when that conviction qualifies as a "violent felony" only under the residual clause. See Johnson, 135 U.S. at 2555-60, 2563.

Johnson did not address either subsection (i) or the first line of subsection (ii) in § 924(e)(2)(B). Those provisions remain valid.

B. 18 U.S.C. § 924(c)(3)

Acton challenges his conviction not under the ACCA but under 18 U.S.C. § 924(c)(1)(A) and (ii) for using or carrying and brandishing a firearm during and in relation to a "crime of violence." The definition of a "crime of violence" in § 924(c)(3) is similar to the definition of a "violent felony" in § 924(e)(2)(B):

(3) For purposes of this subsection [§ 924(c)] the term "crime of violence" means 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.

Acton argues that a Hobbs Act robbery is not a "crime of violence" under § 924(c)(3)(A) and that § 924(c)(3)(B) is unconstitutionally vague in light of Johnson. The United States asserts that robbery meets the requirements of § 924(c)(3)(A) and that Johnson does not apply to § 924(c)(3)(B).

The Court will assume, for the sake of argument, that the residual clause in § 924(c)(3)( B ) is unconstitutionally vague for the reasons explained in Johnson. See Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th Cir. 2015) (holding the residual clause of 18 U.S.C. § 16(b), which is virtually identical to § 924(c)(3)(B), unconstitutionally vague under Johnson), cert. granted, No. 15-1498 (U.S. Sept. 29, 2016). But, even so, Acton's conviction and sentence under § 924(c) would still be valid if the "crime of violence" he committed "ha[d] as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 924(c)(3)( A ).

III. Analysis

A. Acton's Predicate Crime Was Robbery

The caption of the Indictment and the text of Count 2, the § 924 count, accused Acton of "robbery affecting interstate commerce," citing 18 U.S.C. § 1951(a). See Indictment (Doc. 1) at 1, 3. In turn, Count 1 accused Acton of "us[ing] actual and threatened force against G.G., to unlawfully take from the owner, against said owner's will, approximately ten firearms, in the presence of G.G. . . . in violation of 18 U.S.C. §§ 1951(a) and 2." See id. at 2; see also 18 U.S.C. § 1951(b)(1) (defining robbery).

The plea agreement provided:

In pleading guilty to Count II, the defendant acknowledges that:

First, the defendant committed the crime of robbery affecting commerce as charged in Count I of the indictment;

Second, the defendant knowingly used a firearm or aided, abetted, counseled, commanded, induced, or procured said use; and

Third, the defendant used of aided, abetted, counseled, commanded, induced, or procured said use of the firearm during and in relation to the crime.

The predicate crime for Acton's conviction under § 924(c), therefore, is Hobbs Act robbery. To prevail on his § 2255 motion, he must show that a Hobbs Act robbery is not a "crime of violence."

B. Hobbs Act Robbery Is a Crime of Violence

The parties agree that United States v. Mendez, 992 F.2d 1488 (9th Cir. 1993), is a relevant precedent. They disagree about what it means. Mendez held that conspiracy to commit a Hobbs Act robbery is a "crime of violence" under § 924(c)(3)(B). See Mendez, 992 F.2d at 1491-92. After Johnson, that conclusion is questionable.

But before considering the status of conspiracy to commit a Hobbs Act robbery, the Mendez court stated that a Hobbs Act robbery is a crime of violence under § 924(c)(3)( A ). It said:

Robbery indisputably qualifies as a crime of violence. See 18 U.S.C. § 1951(b)(1) (containing element of "actual or threatened force, or violence").

The parenthetical phrase describing robbery as containing an "element" of "actual or threatened force, or violence" refers to § 924(c)(3)(A)'s requirement that a crime of violence have, "as an element, the use, attempted use, or threatened use of physical force." Mendez was not a Hobbs Act robbery case, but its characterization of Hobbs Act robbery as a crime of violence under § 924(c)(3)(A) has been treated as binding precedent in the Ninth Circuit. See, e.g., United States v. Howard, 650 Fed. Appx. 466, 468 (9th Cir. 2016); United States v. Allen, 425 F.3d 1231, 1234 n.3 (9th Cir. 2005); United States v. Shivers, 172 F.3d 60, 1999 WL 77960 (9th Cir. Feb. 16, 1999) (unpublished mem. disp.).

A panel of the Ninth Circuit criticized Mendez because it announced the rule "without any analysis of the elements of robbery as defined in the Hobbs Act." United States v. Chandler, 743 F.3d 648, 658 (9th Cir. 2014), vacated, ___ U.S. ___, 135 S. Ct. 2926 (2015) (vacating and remanding in light of Johnson). Mendez might be "illogical" or "questionable." Chandler, 743 F.3d at 658. But, even if it is, that does not mean this Court can ignore it.

Under the Ninth Circuit's ruling in Mendez, a Hobbs Act robbery is a crime of violence under the force clause, § 924(c)(3)(A). Johnson has no bearing on § 924(c)(3)(A). If Mendez is still good law, it defeats Acton's § 2255 motion.

C. As to Robbery, Mendez Remains the Law in the Ninth Circuit

Acton's conviction under § 924(c) is not subject to challenge if the portion of Mendez holding a Hobbs Act robbery to be a crime of violence under § 924(c)(3)(A) is still the law of the Ninth Circuit. Generally, a published decision of the Ninth Circuit Court of Appeals is binding authority that "must be followed unless and until overruled by a body competent to do so." Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001). Neither the Ninth Circuit nor the Supreme Court has overruled any part of Mendez.

But a published decision loses its precedential force when subsequent binding precedent has "undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable." Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012) (en banc) (quoting Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc); Hart, 266 F.3d at 1170; Jeffries v. Wood, 114 F.3d 1484, 1489 (9th Cir. 1997) (en banc)), overruled in part by Gonzalez, 677 F.3d at 389 n.4. In that case, district courts must instead "consider themselves bound by the intervening higher authority and reject the prior opinion . . . as having been effectively overruled." Gonzalez, 677 F.3d at 389 n.4.

Because Mendez has not been overruled, the question is whether it is "clearly irreconcilable" with any of the more recent decisions that Acton invokes: Mathis v. United States, ___ U.S. ___, 136 S. Ct. 2243 (2016); Descamps v. United States, ___ U.S. ___, 133 S. Ct. 2276 (2013); Johnson v. United States, 559 U.S. 133 (2010) ("Johnson I"); Leocal v. Ashcroft, 543 U.S. 1 (2003); and the various circuit decisions applying these cases. See generally Mot. § 2255 at 10-18.

1. Mendez Can Be Reconciled With Mathis and Descamps

Mendez was decided many years before the Supreme Court clarified, in Descamps and again in Mathis, that "the first task for a sentencing court faced with an alternatively phrased statute is . . . to determine whether its listed items are elements or means." Mathis, 136 S. Ct. at 2256. The distinction between elements and means is important because it indicates whether a particular statute indivisibly defines a single crime, merely citing different ways of proving its elements, or, instead, whether a statute defines more than one crime, each with its own discrete set of elements. Whether a statute defines one crime that can be committed by various means or two or more crimes with different sets of elements matters a lot in categorical analysis; every means of committing a particular crime must qualify as a "crime of violence" if any means of committing it is to be one. See Mathis, 136 S. Ct. at 2248-49, 2256; Almanza-Arenas v. Lynch, 815 F.3d 469, 476-79 (9th Cir. 2015) (en banc); Ramirez v. Lynch, 810 F.3d 1127, 1134-38 (9th Cir. 2016). When a statute is divisible, therefore, not every conviction incurred under the statute must have the use or attempted or threatened use of physical force as an element.

As related to the Hobbs Act, for instance, if the Act is indivisible, every instance of violating the Act must involve force. And plainly it doesn't; extortion under color of official right, for instance, is committed by inducing a victim to part with property by wrongfully threatening to use an office to the victim's detriment. Force need not be involved. See, e.g., 18 U.S.C. § 1951(b)(2). But if the Hobbs Act is divisible—say, into robbery or extortion—then a Hobbs Act robbery might be a "crime of violence" while a Hobbs Act extortion is not.

Mendez contains some language suggesting the Hobbs Act is indivisible. The court says the Act "defines a crime using several permutations, any one of which constitutes the same offense." Mendez, 992 F.2d at 1490 (emphasis added). Taken literally, this statement would seem to mean that § 1951(a) is indivisible, at least as to some of the terms used in the subsection.

But the reasoning of the opinion suggests this statement should not be taken literally:

A person may be convicted for violating § 1951 if he interferes with interstate commerce by robbery, extortion, attempting or conspiring to rob or extort, or committing or threatening violence in furtherance of a plan or purpose to violate the statute. Thus the question arises whether every permutation of § 1951 must be a "crime of violence" to find categorically that a § 1951 offense is a "crime of violence," or whether a categorical finding requires only that the particular permutation for which the defendant is convicted be a "crime of violence."

Further, Mendez concluded that the Hobbs Act defines more than one crime. The court stated that, "where a defendant has been convicted under a statute describing crimes [plural] of both violence and non-violence, we need only find that the charged crime for which the defendant was convicted constitutes a 'crime of violence' to conclude categorically that the charged offense may serve as a predicate for a § 924(c) violation." Mendez, 992 F.2d at 1491. The court went on to discuss only robbery, not extortion, and it considered robbery and conspiracy to rob separately. Since the court did not consider extortion at all, it necessarily (albeit implicitly) concluded it did not matter whether extortion was a crime of violence or not.

Therefore, Mendez tacitly held that § 1951(a) of the Hobbs Act is divisible and that robbery and extortion and conspiracy to commit robbery are separate crimes. See Mendez, 992 F.2d at 1490-91 (discussing United States v. Potter, 895 F.2d 1231 (9th Cir. 1990) (construing Cal. Penal Code § 261(a)(2)), and United States v. Selfa, 918 F.2d 749 (9th Cir. 1990) (construing first and second paragraphs of 18 U.S.C. § 2113(a)); see also Callanan v. United States, 364 U.S. 587, 595-97 (1961) (holding that Hobbs Act conspiracy is separate crime from substantive offenses but declining to consider whether the "repetitive" nature of "some of the substantive sections" indicates they are "variants in phrasing of the same delict").

If Mendez had reasoned or assumed that some robberies under the Hobbs Act may be violent and others non-violent, it would indeed be irreconcilable with Mathis and Descamps. But it is only necessary to translate Mendez's terms into the contemporary terminology and read the opinion as holding, in part, that 18 U.S.C. § 1951(a) is divisible. Mathis and Descamps do not "undercut the theory or reasoning underlying [Mendez] in such a way that the cases are clearly irreconcilable." Gonzalez, 677 F.3d at 389 n.4.

2. Mendez Can Be Reconciled With Johnson I (2010)

Johnson I holds that a crime cannot be characterized as a "violent felony" unless its elements require proof the defendant used "violent force—that is, force capable of causing physical pain or injury to another person." Johnson I, 559 U.S. at 140 (emphasis in original). A crime that may be proved by showing only a use of "force" in the common-law sense, which includes a mere offensive touch, does not require "violent force" and so cannot be a "violent felony." Id. at 139.

Every federal appellate court that has considered the issue after Johnson I has held that a Hobbs Act robbery necessarily requires proof of the use or attempted or threatened use of physical force against the person or property of another within the meaning of § 924(c)(1)(A). See, e.g., United States v. Rivera, 847 F.3d 847, 848-49 (7th Cir. 2017); United States v. Gooch, 850 F.3d 285, 290-92 (6th Cir.), cert. denied, No. 16-9008 (U.S. June 5, 2017); United States v. Hill, 832 F.3d 135, 138-39 (2d Cir. 2016); United States v. House, 825 F.3d 381, 387 (8th Cir. 2016); In re St. Fleur, 824 F.3d 1337, 1340 (11th Cir. 2016). As the United States points out, the traditional concept of robbery is closely related to physical violence. Black's Law Dictionary "defines 'physical force' as '[f]orce consisting in a physical act, esp. a violent act directed against a robbery victim." Resp. to § 2255 Mot. (Doc. 117) at 12 (quoting Johnson I, 559 U.S. at 139 (emphasis added) (quoting Black's Law Dict. 717 (9th ed. 2009)). The current federal generic definition of robbery does not mention force per se, but it consists of "aggravated larceny, containing at least the elements of misappropriation of property under circumstances involving immediate danger to the person." United States v. Becerril-Lopez, 541 F.3d 881, 891 (9th Cir. 2008) (emphasis altered) (quoting United States v. Santiesteban-Hernandez, 469 F.3d 376, 380 (5th Cir. 2006), abrogated in part by United States v. Rodriguez, 711 F.3d 541, 554-55 (5th Cir. 2013) (en banc)).

Seeking to avoid the weight of this authority, Acton cites cases interpreting statutes containing similar language and holding that a de minimis use of force satisfies their "use of force" elements. See, e.g., United States v. Parnell, 818 F.3d 974, 978-82 (9th Cir. 2016). But Acton does not cite a case, and the Court is not aware of one, holding that a purse-snatching type of robbery—for instance, running past a pizza delivery driver and grabbing a collection pouch out of his hands—meets the definition of a Hobbs Act robbery. If and when that happens, Mendez might no longer be reconcilable with Johnson I. See Howard, 650 Fed. Appx. at 468 n.1 (citing United States v. Dominguez-Maroyoqui, 748 F.3d 918, 921 (9th Cir. 2014), and reserving the issue). But, so far as Acton can show, that day has not arrived.

Acton also cites cases sustaining convictions for extortion under the Hobbs Act even where no violent physical force is involved. See Mot. § 2255 at 15 (citing United States v. Villalobos, 748 F.3d 953 (9th Cir. 2014); United States v. Sturm, 870 F.2d 769 (1st Cir. 1989)). One can argue that the Hobbs Act's definitions of robbery and extortion overlap with each other and differ significantly from traditional definitions. Hobbs Act robbery reaches the act of taking another's property by threatening future injury to the property of an absent family member. That is more typical of extortion than robbery. See, e.g., 3 Wayne R. LaFave, Substantive Criminal Law § 20.3(a) intro., at 172-73 (2d ed. 2003); § 20.3(d), at 186-87; 20.4(a)(4) & n.16 at 200-03; § 20.4(b), at 203-04 & n.31.1 (2d ed. 2003 & Supp. 2016-2017) (citing Becerril-Lopez, 541 F.3d at 891). But the difference between Hobbs Act robbery and Hobbs Act extortion lies in robbery's requirement that the defendant take or obtain property "from the person or in the presence of another" and "against his will," by means that may include actual or threatened force, violence, or "fear of injury." The quoted phrases—none of which appear in the definition of extortion—show that physical force is always involved in robbery, a fact that distinguishes robbery from extortion under the Hobbs Act.

Johnson I is not "clearly irreconcilable" with the Mendez court's holding that Hobbs Act robbery has, as an element, the use or attempted or threatened use of physical force against the person or property of another.

3. Mendez Can Be Reconciled With Leocal

Finally, Acton argues that the Hobbs Act fails to meet the mens rea requirement of Leocal v. Ashcroft, 543 U.S. 1 (2003). Analogizing bank robbery under 18 U.S.C. § 2113 to the Hobbs Act, see United States v. Holloway, 309 F.3d 649, 651-52 (9th Cir. 2002), he also argues that intimidation would suffice to meet the elements of robbery and that intimidation requires only that the victim experience it, not that the defendant intend to cause it. See Mot. § 2255 at 15-18.

On these points, the Court disagrees. Intimidation facilitates a taking when it is perceived as a threat to use physical force. Acton is correct that a victim's perception of a threat does not always mean the defendant made a threat. But the Hobbs Act requires proof that a defendant obtain property "by robbery or extortion." 18 U.S.C. § 1951(a) (emphasis added). The statute requires proof, in other words, of goal-driven behavior by the defendant, be it a deployment of force or violence or intimidating threat, for the purpose of compelling or inducing someone to give up property. Such conduct falls within the highest form of intent required by Leocal: the use (or attempted or threatened use) of violence or unlawful threats as a means to an end. See Leocal, 543 U.S. at 9. Leocal is easily reconciled with Mendez.

D. Conclusion: Acton's Motion is Controlled By Mendez

As explained above, the question is whether Mendez is "clearly irreconcilable" with subsequent Supreme Court decisions. The answer to that question is at least "not clearly enough." Its manner of analysis may have been incomplete or even incorrect, but it is not so clearly incomplete or incorrect that this Court is bound to overlook it. Therefore, the Court must follow it.

Because Mendez holds that a Hobbs Act robbery is a crime of violence under § 924(c)(3)(A), and because Johnson could only be pertinent to § 924(c)(3)(B), Johnson does not support relief for Acton. His § 2255 motion must be denied. There is no need to consider the United States' procedural defenses.

IV. Certificate of Appealability

A certificate of appealability is not warranted. Even if Mendez is no longer good law, that fact would not help Acton to show that he was deprived of a constitutional right. See 28 U.S.C. § 2253(c)(2). And even if § 924(c)(3)(B) is unconstitutional in light of Johnson II, Johnson II has no bearing on § 924(c)(3)(A) or Mendez. Reasonable jurists would find no basis for further proceedings. A COA is denied.

Accordingly, IT IS HEREBY ORDERED:

1. Acton's motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255 (Doc. 114) is DENIED;

2. A certificate of appealability is DENIED. The clerk shall immediately process the appeal if Acton files a Notice of Appeal.

3. The clerk shall ensure that all pending motions in this case and in CV 16-77-M-DLC are terminated and shall close the civil file by entering judgment in favor of the United States and against Acton.

DATED this 7^th day of December, 2017.

/s/_________

Dana L. Christensen, Chief Judge

United States District Court