United States v. Pamela McGowan

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 31, 2019
• Docket: 18-35402
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 31 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-35402

Plaintiff-Appellee, D.C. Nos. 3:17-cv-00406-BR 3:10-cr-00487-BR-2 v.

PAMELA MARIE MCGOWAN, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Oregon Anna J. Brown, District Judge, Presiding

Argued and Submission Deferred April 19, 2019 Submitted July 10, 2019 San Francisco, California

Before: HAWKINS and M. SMITH, Circuit Judges, and LYNN,** District Judge.

Pamela McGowan appeals the district court’s denial of her 28 U.S.C. § 2255

motion. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. McGowan concedes that her claim under Dean v. United States, 137 S. Ct.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Barbara M. G. Lynn, Chief United States District Judge for the Northern District of Texas, sitting by designation. 1170 (2017), was not filed within one year of when her conviction became final, as

required by 28 U.S.C. § 2255(f)(1). She argues, however, that her motion is timely

under § 2255(f)(3) because Dean applies retroactively to cases on collateral

review. We expressly rejected that argument in Garcia v. United States, 923 F.3d

1242, 1246 (9th Cir. 2019). We therefore deny McGowan’s Dean claim as time-

barred.

2. McGowan also argues that her prior conviction for armed bank robbery does

not qualify as a crime of violence under 18 U.S.C. § 924(c). That argument fails,

however, because we have held that armed bank robbery is a crime of violence

under § 924(c)’s force clause. See United States v. Watson, 881 F.3d 782, 784 (9th

Cir. 2018). The Supreme Court’s recent decision in United States v. Davis, 139 S.

Ct. 2319, 2336 (2019), which held that § 924(c)’s residual clause is

unconstitutionally vague, does not affect our decision in Watson. See Watson, 881

F.3d at 784 (“We need not address the residual clause because we conclude that the

relevant offense of armed bank robbery is a crime of violence under the force

clause.”). McGowan contends that Watson was wrongly decided, but because a

three-judge panel of this court is generally bound by existing Ninth Circuit

precedent subject to limited exceptions not applicable here, see Miller v. Gammie,

335 F.3d 889, 899–900 (9th Cir. 2003), we must abide by the decision.

AFFIRMED.