United States v. Bronson McShane

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 15 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-16906

Plaintiff-Appellee, D.C. Nos. 1:16-cv-00206-HG-RLP v. 1:08-cr-00736-HG-1

BRONSON MCSHANE, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the District of Hawaii Helen W. Gillmor, District Judge, Presiding

Submitted October 12, 2021** Honolulu, Hawaii

Before: O’SCANNLAIN, MILLER, and LEE, Circuit Judges.

Defendant-Appellant Bronson McShane appeals the district court’s denial of

his federal habeas petition challenging his conviction and sentence for use of a

firearm during and in relation to a crime of violence in violation of 18 U.S.C.

§ 924(c)(1)(B)(i). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we

* 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). affirm.

We review de novo a district court’s decision to deny a federal prisoner’s 28

U.S.C. § 2255 motion. United States v. Guess, 203 F.3d 1143, 1145 (9th Cir. 2000).

At the same time, we review the district court’s factual findings “for clear error.” Id.

1. McShane argues his § 924(c) conviction must be vacated because he

was convicted of only conspiracy to commit Hobbs Act robbery and not Hobbs Act

robbery itself. McShane argues that after Johnson v. United States, 576 U.S. 591

(2015) and United States v. Davis, 139 S. Ct 2319 (2019), conspiracy to commit

Hobbs Act robbery can no longer serve as the predicate “crime of violence” for a

§ 924(c) conviction. Because the residual clause definition of a “crime of violence”

is now void, he argues that the conspiracy to commit Hobbs Act robbery does not fit

the elements clause definition.

Despite some ambiguity in the record, the record as a whole appears to show

McShane was convicted of both conspiracy to commit Hobbs Act robbery and

Hobbs Act robbery itself. But we need not determine whether McShane was

convicted of Hobbs Act robbery because we have held that § 924(c) does not require

a conviction of a predicate offense, only underlying conduct of a predicate

offense. See United States v. Hunter, 887 F.2d 1001, 1003 (9th Cir. 1989) (per

curiam) (noting that a defendant charged with violating § 924(c) “must be proven to

have committed the underlying crime, but nothing in the statute or the legislative

2 history suggests he must be separately charged with and convicted of the underlying

offense”). Because the transcript from McShane’s change of plea hearing reflects

that McShane admitted to all the facts needed to prove Hobbs Act robbery,

McShane’s argument fails. See United States v. Dominguez, 954 F.3d 1251, 1262

(9th Cir. 2020) (holding attempted Hobbs Act robbery is a crime of violence under

the elements clause of § 924(c)).

2. McShane also argues that even if Hobbs Act robbery were the predicate

offense underlying his § 924(c) conviction, his § 924(c) conviction does not survive

Davis because his § 924(c) conviction was based on a Pinkerton theory of liability

for his coconspirator’s use of a firearm during Hobbs Act robbery. This argument

is foreclosed by our recent decision in United States v. Henry, 984 F.3d 1343 (9th

Cir. 2021). In that case we noted “Davis does not conflict with or undermine the

cases upholding § 924(c) convictions based on Pinkerton liability.” Id. at 1356.

3. McShane also argues that after Rosemond v. United States, 572 U.S. 65

(2014), only “foreknowledge”—not “foreseeability”—can hold a defendant liable

for a co-conspirator’s use of a firearm. “Rosemond raises some questions about

whether advance knowledge should be required for Pinkerton liability as well as for

aiding-and-abetting liability, but it does not hold that.” Henry, 984 F.3d at 1356-57.

Moreover, here, the transcript from McShane’s change of plea hearing reflects

McShane did have foreknowledge.

3 4. Lastly, McShane argues there is “no procedural impediment” to this court

granting the habeas relief he seeks. Because we conclude McShane is not entitled

to relief, we do not address these other arguments.

AFFIRMED.