Paul Gray v. United States

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 24, 2020
• Docket: 18-56507
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 24 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PAUL DEMETRIUS LAMAR GRAY, No. 18-56507 AKA Paul Gray, D.C. Nos. 2:16-cv-09680-CBM Petitioner-Appellant, 2:95-cr-00160-CBM-1

v. MEMORANDUM* UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California Consuelo B. Marshall, District Judge, Presiding

Submitted November 12, 2020** Pasadena, California

Before: CHRISTEN and WATFORD, Circuit Judges, and ROSENTHAL, *** District Judge.

Paul Gray timely appeals from the district court’s denial of his motion to

vacate his sentence under 28 U.S.C. § 2255. We have jurisdiction under 28 U.S.C.

* 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 Lee H. Rosenthal, Chief United States District Judge for the Southern District of Texas, sitting by designation. § 2253(a), and, reviewing de novo, United States v. Swisher, 811 F.3d 299, 306 (9th

Cir. 2016) (en banc), we affirm.

1. The predicate offense for Gray’s § 924(c) convictions, aggravated postal

robbery in which he placed a mail carrier’s “life in jeopardy by the use of a

dangerous weapon,” in violation of 18 U.S.C. § 2114(a), is a crime of violence.1 The

term “rob” in § 2114(a) means common-law robbery, Carter v. United States, 530

U.S. 255, 267 n.5 (2000), and common-law robbery is a crime of violence, Stokeling

v. United States, 139 S. Ct. 544, 555 (2019). Additionally, robbery that puts a “life

in jeopardy by the use of a dangerous weapon” means “a holdup involving the use

of a dangerous weapon actually so used . . . that the life of the person being robbed

is placed in an objective sta[t]e of danger.” Wagner v. United States, 264 F.2d 524,

530 (9th Cir. 1959); see also United States v. Bain, 925 F.3d 1172, 1177 (9th Cir.

2019). Putting a life in an objective state of danger requires the intentional use,

attempted use, or threatened use of physical force, which makes it a crime of

violence. 18 U.S.C. § 924(c)(3)(A). The Supreme Court’s decision in United States

v. Davis, 139 S. Ct. 2319 (2019), that § 924(c)’s residual clause is unconstitutionally

vague, does not compel a different result. See United States v. Burke, 943 F.3d 1236,

1 Because § 2114(a) is divisible, we use the modified categorical approach to determine the specific offense of conviction. See Descamps v. United States, 570 U.S. 254, 261–63 (2013).

2 1238 (9th Cir. 2019) (noting that Davis “is of no consequence” to the court’s analysis

of predicate offenses under the elements clause of § 924(c)).

2. Gray’s § 924(c) convictions are not invalid because the jury was instructed

that liability for the predicate offenses of aggravated postal robbery could be based

on Pinkerton or aiding and abetting. A defendant found guilty based on aiding and

abetting or Pinkerton liability is treated as if that defendant had committed the

offense as a principal. See 18 U.S.C. § 2(a); Ortiz-Magana v. Mukasey, 542 F.3d

653, 659 (9th Cir. 2008); United States v. Allen, 425 F.3d 1231, 1234 (9th Cir. 2005).

We have previously upheld § 924(c) convictions based on Pinkerton and aiding and

abetting in United States v. Gadson, 763 F.3d 1189, 1214–17 (9th Cir. 2014)

(conspiracy to distribute, and possession with intent to distribute, controlled

substances), Allen, 425 F.3d at 1233–34 (bank robbery), and United States v.

Johnson, 886 F.2d 1120, 1121–23 (9th Cir. 1989) (conspiracy to possess with intent

to distribute cocaine). See also Rosemond v. United States, 572 U.S. 65, 67 (2014)

(a defendant may be convicted under § 924(c) for aiding and abetting an armed drug

sale if he “actively participated” in the predicate offense with “advance knowledge

that a confederate would use or carry a gun during the crime’s commission”). Since

Davis, we have sustained § 924(c) convictions for robbery as a crime of violence.

See United States v. Dominguez, 954 F.3d 1251, 1260–62 (9th Cir. 2020) (Hobbs

Act robbery); Burke, 943 F.3d at 1238 (armed robbery involving controlled

3 substances). Davis does not compel a different result or a reexamination of

Pinkerton or aiding-and-abetting liability when, as here, the defendant was convicted

of the underlying substantive crimes of violence as well as conspiracy. Gray’s

§ 924(c) convictions remain valid.

AFFIRMED.