United States v. Johnson ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 10, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 17-3136
v. (D.C. Nos. 5:16-CV-04096-SAC &
5:96-CR-40082-SAC-2)
DERRICK V. JOHNSON, (D. Kan.)
Defendant - Appellant.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before PHILLIPS, McKAY, and O’BRIEN, Circuit Judges.
_________________________________
Derrick Johnson, a federal prisoner, seeks a certificate of appealability (COA)
to challenge the district court’s denial of his 28 U.S.C. § 2255 motion to vacate his
18 U.S.C. § 924(c) convictions. We deny Johnson’s request.
BACKGROUND
In 1998, Johnson pleaded guilty to three counts of Hobbs Act robbery in
violation of 18 U.S.C. § 1951 and two counts of unlawfully carrying and using a
firearm during and in relation to a crime of violence in violation of 18 U.S.C.
*
This order is not binding precedent, except under the doctrines of law of the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.
§ 924(c). Based on Johnson’s total offense level and criminal-history category, the
District of Kansas sentenced him to 468 months’ imprisonment.
On June 13, 2016, Johnson moved to vacate his sentence under 28 U.S.C.
§ 2255 in light of Johnson v. United States, 135 S. Ct. 2551 (2015), which held that
18 U.S.C. § 924(c)(3)(B)’s residual clause is unconstitutionally vague. In his motion,
he argued that Hobbs Act robbery doesn’t categorically qualify as a crime of violence
under 18 U.S.C. § 924(c)(3)(A)’s force (or elements) clause. The district court denied
Johnson’s § 2255 motion, concluding that Hobbs Act robbery does categorically
qualify as a crime of violence under § 924(c)(3)(A)’s force (or elements) clause.
Johnson now appeals.
DISCUSSION
Before Johnson’s appeal may proceed, he must obtain a COA. 28 U.S.C.
§ 2253(c)(1)(B). We will issue a COA only where “the applicant has made a
substantial showing of the denial of a constitutional right.” Id. at § 2253(c)(2). To
make such a showing, “[t]he petitioner must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, the relevant legal
question is whether Hobbs Act robbery categorically qualifies as a crime of violence.
That it does.
We answered this question in United States v. Melgar-Cabrera, 892 F.3d 1053
(10th Cir. 2018). There, we held that Hobbs Act robbery categorically qualifies as a
“crime of violence” under § 924(c)(3)(A)’s elements clause because it includes the
2
use or threatened use of violent force as an element of the crime. Melgar-Cabrera,
892 F.3d at 1065-66. Accordingly, we concluded that the invalidation of the residual
clause, § 924(c)(3)(B), does not change Hobbs Act robbery’s status as a crime of
violence. Id. at 1060 n.4. Johnson correctly concedes that this holding precludes the
relief he seeks.
Still, he argues we should grant him a COA because the Supreme Court
granted certiorari in Stokeling v. United States, 138 S. Ct. 1438, 86 U.S.L.W. 3492
(Apr. 2, 2018) (No. 17-5554), which he contends leaves Melgar-Cabrera debatable.
Unfortunately for Johnson, Stokeling did not go as he had hoped. The Supreme Court
held that “physical force” in the elements clause “encompasses the degree of force
necessary to commit common-law robbery.” Stokeling v. United States, 139 S. Ct.
544, 555 (Jan. 15, 2019). With this, our holding in Melgar-Cabrera remains intact.
See Melgar-Cabrera, 892 F.3d at 1064 (recognizing that Hobbs Act robbery tracks
the elements of “common-law robbery,” and that common-law robbery’s “force”
element “has traditionally been identified as violent force” (internal quotation marks
omitted)).
With this controlling precedent, reasonable jurists could not debate that Hobbs
Act robbery is a crime of violence under § 924(c)(3)(A). Johnson’s challenge to his
§ 924(c) convictions is therefore fruitless.
3
CONCLUSION
Accordingly, we deny Johnson a COA and DISMISS the appeal.
Entered for the Court
Gregory A. Phillips
Circuit Judge
4