United States v. Tierre Cole

Opinion

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JUN 1 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS UNITED STATES OF AMERICA, No. 20-16006

Plaintiff-Appellee, D.C. Nos. 2:16-cv-01377-KJD 2:14-cr-00344-KJD- v. PAL-1 District of Nevada, TIERRE COLE, Las Vegas

Defendant-Appellant. ORDER

Before: HAWKINS and MILLER, Circuit Judges, and MORRIS,* District Judge.

The memorandum disposition filed on May 18, 2021, is amended as follows:

Page 3, line 3–4: Citation to United States v. Hall is changed to <845 F. App’x 644,

645 (9th Circ. 2021) (unpublished)>

The amended memorandum disposition will be filed concurrently with this

order.

Appellant’s unopposed motion for an extension of time to file a petition for

panel rehearing/rehearing en banc [Dkt. Entry No. 32] is GRANTED. The petition

for panel rehearing/rehearing en banc shall be filed on or before July 16, 2021.

* The Honorable Brian M. Morris, United States District Judge for the District of Montana, sitting by designation. NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 1 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-16006

Plaintiff-Appellee, D.C. Nos. 2:16-cv-01377-KJD v. 2:14-cr-00344-KJD-PAL-1

TIERRE COLE, AMENDED MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Kent J. Dawson, District Judge, Presiding

Submitted May 14, 2021** San Francisco, California

Before: HAWKINS and MILLER, Circuit Judges, and MORRIS,*** 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 Brian M. Morris, Chief United States District Judge for the District of Montana, sitting by designation. Tierre Cole 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) conviction and sentence. We have

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

We review de novo both the denial of a § 2255 motion, United States v.

Aguirre-Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010), and whether a prior

conviction qualifies as a crime of violence under § 924(c), United States v. Begay,

934 F.3d 1033, 1037 (9th Cir. 2019).

Cole was convicted and sentenced under § 924(c) for the use of a firearm

during and in relation to a crime of violence (Hobbs Act robbery, 18 U.S.C. § 1951)

as a principal and as an aider and abettor. He argues that Hobbs Act robbery does

not qualify as a crime of violence after United States v. Davis, 139 S. Ct. 2319

(2019),1 where the Supreme Court concluded that § 924(c)’s residual clause, §

924(c)(3)(B), was unconstitutionally vague.

Under either theory of liability for Hobbs Act robbery, Cole’s conviction and

sentence under § 924(c) are constitutional. United States v. Dominguez, 954 F.3d

1251, 1255 (9th Cir. 2020), recognized that Hobbs Act robbery qualifies as a crime

1 Cole may proceed with his appeal even though he waived the right to collaterally attack his sentence in his written plea agreement because he argues that his conviction and sentence are unconstitutional. See United States v. Torres, 828 F.3d 1113, 1125 (9th Cir. 2016); United States v. Barron, 172 F.3d 1153, 1160 (9th Cir. 1999) (en banc).

2 of violence under § 924(c). And, for the purpose of determining whether an offense

qualifies as a crime of violence under § 924(c), aiding and abetting Hobbs Act

robbery is treated no differently than a substantive Hobbs Act robbery. See United

States v. Hall, 845 F. App’x 644, 645 (9th Cir. 2021) (unpublished) (aiding and

abetting Hobbs Act robbery qualifies as a crime of violence because “aiding and

abetting liability does not alter the categorical approach analysis”); see also United

States v. Henry, 984 F.3d 1343, 1356 (9th Cir. 2021) (defendants found guilty of

armed bank robbery under an aiding and abetting theory are treated as principals).

Thus, Cole’s conviction and sentence under § 924(c) are constitutional.

AFFIRMED.