United States v. Marcus Major

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 27, 2022
• Docket: 17-16764
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAY 27 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-16764

Plaintiff-Appellee, D.C. Nos. 1:17-cv-00360-LJO 1:07-cr-00156-LJO-1 v.

MARCUS MAJOR, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, District Judge, Presiding

Submitted May 18, 2022** Pasadena, California

Before: LEE and BRESS, Circuit Judges, and FITZWATER,*** District Judge.

* 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. 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

-2- 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

-3- 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.1

AFFIRMED.

1 We therefore have no need to reach the government’s argument that Major procedurally defaulted his claims.

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