United States v. Bronson McShane ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 15 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-16906
Plaintiff-Appellee, D.C. Nos.
1:16-cv-00206-HG-RLP
v. 1:08-cr-00736-HG-1
BRONSON MCSHANE,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Hawaii
Helen W. Gillmor, District Judge, Presiding
Submitted October 12, 2021**
Honolulu, Hawaii
Before: O’SCANNLAIN, MILLER, and LEE, Circuit Judges.
Defendant-Appellant Bronson McShane appeals the district court’s denial of
his federal habeas petition challenging his conviction and sentence for use of a
firearm during and in relation to a crime of violence in violation of 18 U.S.C.
§ 924(c)(1)(B)(i). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we
*
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).
affirm.
We review de novo a district court’s decision to deny a federal prisoner’s 28
U.S.C. § 2255 motion. United States v. Guess, 203 F.3d 1143, 1145 (9th Cir. 2000).
At the same time, we review the district court’s factual findings “for clear error.” Id.
1. McShane argues his § 924(c) conviction must be vacated because he
was convicted of only conspiracy to commit Hobbs Act robbery and not Hobbs Act
robbery itself. McShane argues that after Johnson v. United States, 576 U.S. 591(2015) and United States v. Davis, 139 S. Ct 2319 (2019), conspiracy to commit
Hobbs Act robbery can no longer serve as the predicate “crime of violence” for a
§ 924(c) conviction. Because the residual clause definition of a “crime of violence”
is now void, he argues that the conspiracy to commit Hobbs Act robbery does not fit
the elements clause definition.
Despite some ambiguity in the record, the record as a whole appears to show
McShane was convicted of both conspiracy to commit Hobbs Act robbery and
Hobbs Act robbery itself. But we need not determine whether McShane was
convicted of Hobbs Act robbery because we have held that § 924(c) does not require
a conviction of a predicate offense, only underlying conduct of a predicate
offense. See United States v. Hunter, 887 F.2d 1001, 1003 (9th Cir. 1989) (per
curiam) (noting that a defendant charged with violating § 924(c) “must be proven to
have committed the underlying crime, but nothing in the statute or the legislative
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history suggests he must be separately charged with and convicted of the underlying
offense”). Because the transcript from McShane’s change of plea hearing reflects
that McShane admitted to all the facts needed to prove Hobbs Act robbery,
McShane’s argument fails. See United States v. Dominguez, 954 F.3d 1251, 1262
(9th Cir. 2020) (holding attempted Hobbs Act robbery is a crime of violence under
the elements clause of § 924(c)).
2. McShane also argues that even if Hobbs Act robbery were the predicate
offense underlying his § 924(c) conviction, his § 924(c) conviction does not survive
Davis because his § 924(c) conviction was based on a Pinkerton theory of liability
for his coconspirator’s use of a firearm during Hobbs Act robbery. This argument
is foreclosed by our recent decision in United States v. Henry, 984 F.3d 1343 (9th
Cir. 2021). In that case we noted “Davis does not conflict with or undermine the
cases upholding § 924(c) convictions based on Pinkerton liability.” Id. at 1356.
3. McShane also argues that after Rosemond v. United States, 572 U.S. 65(2014), only “foreknowledge”—not “foreseeability”—can hold a defendant liable
for a co-conspirator’s use of a firearm. “Rosemond raises some questions about
whether advance knowledge should be required for Pinkerton liability as well as for
aiding-and-abetting liability, but it does not hold that.” Henry, 984 F.3d at 1356-57.
Moreover, here, the transcript from McShane’s change of plea hearing reflects
McShane did have foreknowledge.
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4. Lastly, McShane argues there is “no procedural impediment” to this court
granting the habeas relief he seeks. Because we conclude McShane is not entitled
to relief, we do not address these other arguments.
AFFIRMED.
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