United States v. Marcus Major ( 2022 )

FILED
NOT FOR PUBLICATION
MAY 27 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-16764
Plaintiff-Appellee, D.C. Nos. 1:17-cv-00360-LJO
1:07-cr-00156-LJO-1
v.
MARCUS MAJOR, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted May 18, 2022**
Pasadena, California
Before: LEE and BRESS, Circuit Judges, and FITZWATER,*** 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 Sidney A. Fitzwater, United States District Judge for the
Northern District of Texas, sitting by designation.
Marcus Major (“Major”) 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) convictions and
sentences. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.
We review de novo the district court’s denial of a § 2255 motion, and we
review the district court’s factual findings for clear error. United States v. Guess, 203
F.3d 1143, 1145 (9th Cir. 2000).
1. We do not reach the government’s argument that we should dismiss in
part the certificate of appealability (“COA”) as improvidently granted. See Phelps v.
Alameda, 366 F.3d 722, 726 (9th Cir. 2004) (“[M]erits panels are not required to
examine allegedly defective COAs in the face of jurisdictional challenges.”).
2. It is apparent from the record that Major’s § 924(c) convictions are
predicated on Hobbs Act robbery, not conspiracy to commit Hobbs Act robbery. But
Major contends that, after United States v. Davis, 139 S. Ct. 2319 (2019), his Hobbs
Act robbery convictions are invalid predicate crimes of violence for a § 924(c)
conviction because they are based on either a Pinkerton or an aiding-and-abetting
theory of liability. This argument is foreclosed by our precedents. See Young v.
United States, 22 F.4th 1115, 1122-23 (9th Cir. 2022) (explaining that “there is no
distinction between aiding-and-abetting liability and liability as a principal under
federal law[,]” and holding that “aiding and abetting a crime of violence, such as
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armed bank robbery, is also a crime of violence”); United States v. Henry, 984 F.3d
1343, 1355-56 (9th Cir. 2021) (rejecting argument that § 924(c) conviction was
invalid if predicate offense was based on Pinkerton liability).
Borden v. United States, 141 S. Ct. 1817 (2021) (plurality opinion), is not
clearly irreconcilable with these binding precedents. See United States v. Boitano, 796
F.3d 1160, 1164 (9th Cir. 2015) (recognizing that three-judge panel may not overrule
a prior panel opinion absent clearly irreconcilable, intervening higher authority). In
Borden the Court held that a criminal offense that requires only a mens rea of
recklessness cannot qualify as a “violent felony” under the force (or elements) clause
of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i). Borden, 141 S. Ct.
at 1821-22, 1834. But the Court did not address whether § 924(c) convictions can be
predicated on crime-of-violence convictions that are based on a Pinkerton or an
aiding-and-abetting theory of liability. The Court explicitly stated in Borden that it
was not addressing accessory liability. Id. at 1823 n.3 (stating that the Court had “no
occasion to address” inchoate crimes, such as conspiracy, or aiding-and-abetting
liability).
3. Major has also briefed the uncertified issue of whether after Davis, Hobbs
Act robbery—committed as a principal—is a valid predicate crime of violence for a
§ 924(c) conviction. Construing this argument as a motion to expand the COA, see
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Ninth Cir. R. 22-1(e); Mardesich v. Cate, 668 F.3d 1164, 1169 n.4 (9th Cir. 2012), we
deny the motion because Major has not “made a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2); 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 § 924(c)(3)(A)). Regardless, Borden confirmed preexisting Ninth
Circuit precedent that mere recklessness is not sufficient under the force clause,
United States v. Grajeda, 581 F.3d 1186, 1191 (9th Cir. 2009), and Hobbs Act
robbery in all events requires a greater mens rea than recklessness, Dominguez, 954
F.3d at 1261.
Because Hobbs Act robbery is a crime of violence, regardless of the theory of
liability that Major’s convictions are based on, we affirm the district court’s denial of
Major’s § 2255 motion.1
AFFIRMED.
1
We therefore have no need to reach the government’s argument that Major
procedurally defaulted his claims.
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