United States v. Ted Esteban

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 26 2021 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-17240

Plaintiff-Appellee, D.C. Nos.

1:16-cv-00228-SOM-KSC

v. 1:02-cr-00540-SOM-1

TED S. ESTEBAN, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Hawaii Susan O. Mollway, District Judge, Presiding

Submitted January 20, 2021** Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges.

Ted S. Esteban appeals from the district court’s judgment denying his 28 U.S.C. § 2255 motion to vacate his conviction and sentence. We have jurisdiction under 28 U.S.C. § 2253. Reviewing de novo, see United States v. Reves, 774 F.3d 562, 564 (9th Cir. 2014), we affirm.

*

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).

Esteban challenges his conviction and sentence under 18 U.S.C.

§ 924(c)(1)(B)(i) for using a short-barreled shotgun during a crime of violence. Esteban’s contention that Hobbs Act robbery, 18 U.S.C. § 1951, is not a crime of violence for purposes of 18 U.S.C. § 924(c)(3)(A) is foreclosed. 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 the elements clause of § 924(c)(3)). Esteban asserts that Dominguez was wrongly decided, but as a three-judge panel, we are bound by the decision. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc) (three-judge panel is bound by circuit precedent unless that precedent is “clearly irreconcilable” with intervening higher authority).

We deny Esteban’s request for initial hearing en banc. See Fed. R. App. P.

35(b), (c).

AFFIRMED.

2 17-17240