United States v. Myers

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 27, 2019
• Docket: 18-5109
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT November 27, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 18-5109 (D.C. Nos. 4:15-CV-00215-CVE-PJC & KALEB JERMAINE MYERS, a/k/a 4:12-CR-00196-CVE-2) Gurillo, (N.D. Okla.)

Defendant - Appellant. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before BRISCOE, McHUGH, and MORITZ, Circuit Judges. _________________________________

Defendant Kaleb Jermaine Myers seeks a certificate of appealability (“COA”) to

appeal the district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or

correct his sentence. See 28 U.S.C. § 2253(c)(1)(B) (“Unless a circuit justice or judge

issues a certificate of appealability, an appeal may not be taken to the court of appeals

from . . . the final order in a proceeding under section 2255.”). Myers also has an

outstanding motion for remand. We deny the request for a COA and the motion for

remand.

* This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. A. The Certificate of Appealability

A jury convicted Myers of two counts of possessing and brandishing a firearm in

furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c); each count alleged

Hobbs Act robbery in violation of 18 U.S.C. § 1951 as the underlying crime of violence.

Myers, relying on United States v. Johnson, 576 U.S. ---, 135 S. Ct. 2551 (2015),

challenges his conviction. He argues that Hobbs Act robbery is not a crime of violence

under § 924(c)’s elements clause because it is “indivisible,” and the least-culpable

conduct does not meet the requirements of a crime of violence. See Aplt.’s Br. at 15–18.

He requests this court issue a COA on this issue.

No “jurist[] of reason” would conclude that Myers’ petition states a valid claim.

Slack v. McDaniel, 529 U.S. 473, 484 (2000). As Myers himself acknowledges, this court

has previously held that Hobbs Act robbery satisfies § 924(c)’s elements clause. See

Aplt.’s Br. at 19, citing Melgar-Cabrera, 892 F.3d 1053, 1064 (10th Cir. 2018). Myers

argues that United States v. Davis, --- U.S. ---, 139 S. Ct. 2319 (2019) qualifies as

“intervening Supreme Court authority” contrary to that prior decision, and that we may

therefore reevaluate Melgar-Cabrera. Aplt.’s Br. at 20. Specifically, Myers argues that

Davis, which also dealt with § 924(c) and Hobbs Act robbery, “appears to have

suggested” that all of the defendants’ § 924(c) convictions in Davis were in question. Id.

But Davis holds only that § 924(c)(3)(B)’s residual clause is unconstitutionally

vague. It does not even “appear to suggest” that Hobbs Act robbery is not a crime of

violence under the elements clause. An examination of the record in Davis makes clear

that the Hobbs Act robbery count at issue there, Count 7, could be a predicate crime of

2 violence under § 924(c). See United States v. Davis, 903 F.3d 483, 485 (5th Cir. 2018)

aff’d in part, vacated in part 139 S. Ct. 2319 (2019). However, aiding and abetting a

conspiracy to commit Hobbs Act robbery was only covered by the residual clause. Id.

Because one count was vacated, the defendants were entitled to a full resentencing.

Davis, --- U.S. ---, 139 S. Ct. at 2336. This procedural posture does not cause us to read

Davis as support for concluding that Hobbs Act robbery is not a crime of violence under

§ 924(c).

And even if Davis “appeared to suggest” that Hobbs Act robbery might not be a

crime of violence under § 924(c)(3)(A), and we could reconsider Melgar-Cabrera, we

would reach the same conclusion: Hobbs Act robbery is a crime of violence under the

elements clause of § 924(c), and the “elements versus means” argument Myers puts

forward does not change that analysis. See, e.g., United States v. Jefferson, 911 F.3d

1290, 1296–98 (10th Cir. 2018) (rejecting the same argument Myers makes) petition for

cert. filed, (U.S. May 17, 2019) (No. 18–9325) and United States v. Nguyen, 744 F.

App’x 550, 552 (10th Cir. 2018); see also United States v. Harris, 761 F. App’x 852, 854

(10th Cir. 2019) (rejecting the argument that Stokeling v. United States, --- U.S. ---, 138

S. Ct. 1438 (2018) had any impact on Melgar-Cabrera, and denying a COA on those

grounds); accord United States v. Johnson, 765 F. App’x 415, 416 (10th Cir. 2019).

Melgar-Cabrera is still binding precedent on this court, and, therefore, Myers has not

identified a viable constitutional challenge of his sentence.

3 B. The Motion for Remand

Myers has also filed a motion for remand, arguing: (1) that the district court

should consider in the first instance whether Davis impacts the § 924(c) counts; (2) that

the district court should consider the application of the First Step Act to Myers’ § 924(c)

counts; (3) that additional ineffective assistance of counsel claims may have been

overlooked, and (4) appointing the same Federal Public Defender’s Office to brief the

§ 924(c) issue that represented Myers at trial created a conflict of interest precluding

amendment of Myers’ § 2255 motion to include additional claims.

Whatever the merits of these arguments, we cannot remand what is not before us.

Myers’ request for a COA addressed the Davis issue, and we have properly considered it.

That question need not return to the district court for it to examine in the first instance.

The rest of Myers’ arguments are not presented on appeal. His notice of appeal does

include the district court’s dismissal of his other ineffective assistance of counsel claims,

but as the motion for remand acknowledges, its articulated claim is new; and on his

conflict of counsel issue, nothing was presented to the district court.1 See Kibbe v.

Williams, 392 F. App’x 648, 651 (10th Cir. 2010) (“[w]e possess jurisdiction to address

only those issues raised in the notice of appeal”) (citing Foote v. Spiegel, 188 F.3d 1416,

1422 (10th Cir. 1997)); see also United States v. VanDeMerwe, 527 F. App’x 745, 749

1 As to the First Step Act, we agree: the district court is the proper entity to consider modifying Myers’ sentence. However, our remanding this matter is not the appropriate vehicle. See 18 U.S.C. § 3582(c)(1)(B); see also United States v. White, 765 F.3d 1240, 1244 (10th Cir. 2014) (“[a] district court is authorized to modify a Defendant’s sentence only in specified instances where Congress has expressly granted the court jurisdiction to do so”) (quoting United States v. Blackwell, 81 F.3d 945, 947 (10th Cir. 1996)). 4 (10th Cir. 2013) (“[The defendant] did not make these arguments before the district court.

They may not, therefore, form the basis of a request for a COA.”); Parker v. Workman,

149 F. App’x 753, 755 (10th Cir. 2005) (“[w]e . . . decline to issue a COA based on an

argument that was not raised below”).

For these reasons, Myers’ request for a COA is DENIED, his motion for remand is

DENIED, and this matter is DISMISSED.

Entered for the Court

Mary Beck Briscoe Circuit Judge