Paul Gray v. United States ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 24 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL DEMETRIUS LAMAR GRAY, No. 18-56507
AKA Paul Gray,
D.C. Nos. 2:16-cv-09680-CBM
Petitioner-Appellant, 2:95-cr-00160-CBM-1
v.
MEMORANDUM*
UNITED STATES OF AMERICA,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, District Judge, Presiding
Submitted November 12, 2020**
Pasadena, California
Before: CHRISTEN and WATFORD, Circuit Judges, and ROSENTHAL, ***
District Judge.
Paul Gray timely appeals from the district court’s denial of his motion to
vacate his sentence under 28 U.S.C. § 2255. We have jurisdiction under 28 U.S.C.
*
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 Lee H. Rosenthal, Chief United States District Judge for the
Southern District of Texas, sitting by designation.
§ 2253(a), and, reviewing de novo, United States v. Swisher, 811 F.3d 299, 306 (9th
Cir. 2016) (en banc), we affirm.
1. The predicate offense for Gray’s § 924(c) convictions, aggravated postal
robbery in which he placed a mail carrier’s “life in jeopardy by the use of a
dangerous weapon,” in violation of 18 U.S.C. § 2114(a), is a crime of violence.1 The
term “rob” in § 2114(a) means common-law robbery, Carter v. United States, 530
U.S. 255, 267 n.5 (2000), and common-law robbery is a crime of violence, Stokeling
v. United States, 139 S. Ct. 544, 555 (2019). Additionally, robbery that puts a “life
in jeopardy by the use of a dangerous weapon” means “a holdup involving the use
of a dangerous weapon actually so used . . . that the life of the person being robbed
is placed in an objective sta[t]e of danger.” Wagner v. United States, 264 F.2d 524,
530 (9th Cir. 1959); see also United States v. Bain, 925 F.3d 1172, 1177 (9th Cir.
2019). Putting a life in an objective state of danger requires the intentional use,
attempted use, or threatened use of physical force, which makes it a crime of
violence. 18 U.S.C. § 924(c)(3)(A). The Supreme Court’s decision in United States
v. Davis, 139 S. Ct. 2319 (2019), that § 924(c)’s residual clause is unconstitutionally
vague, does not compel a different result. See United States v. Burke, 943 F.3d 1236,
1
Because § 2114(a) is divisible, we use the modified categorical approach to determine the
specific offense of conviction. See Descamps v. United States, 570 U.S. 254, 261–63 (2013).
2
1238 (9th Cir. 2019) (noting that Davis “is of no consequence” to the court’s analysis
of predicate offenses under the elements clause of § 924(c)).
2. Gray’s § 924(c) convictions are not invalid because the jury was instructed
that liability for the predicate offenses of aggravated postal robbery could be based
on Pinkerton or aiding and abetting. A defendant found guilty based on aiding and
abetting or Pinkerton liability is treated as if that defendant had committed the
offense as a principal. See 18 U.S.C. § 2(a); Ortiz-Magana v. Mukasey, 542 F.3d
653, 659 (9th Cir. 2008); United States v. Allen, 425 F.3d 1231, 1234 (9th Cir. 2005).
We have previously upheld § 924(c) convictions based on Pinkerton and aiding and
abetting in United States v. Gadson, 763 F.3d 1189, 1214–17 (9th Cir. 2014)
(conspiracy to distribute, and possession with intent to distribute, controlled
substances), Allen, 425 F.3d at 1233–34 (bank robbery), and United States v.
Johnson, 886 F.2d 1120, 1121–23 (9th Cir. 1989) (conspiracy to possess with intent
to distribute cocaine). See also Rosemond v. United States, 572 U.S. 65, 67 (2014)
(a defendant may be convicted under § 924(c) for aiding and abetting an armed drug
sale if he “actively participated” in the predicate offense with “advance knowledge
that a confederate would use or carry a gun during the crime’s commission”). Since
Davis, we have sustained § 924(c) convictions for robbery as a crime of violence.
See United States v. Dominguez, 954 F.3d 1251, 1260–62 (9th Cir. 2020) (Hobbs
Act robbery); Burke, 943 F.3d at 1238 (armed robbery involving controlled
3
substances). Davis does not compel a different result or a reexamination of
Pinkerton or aiding-and-abetting liability when, as here, the defendant was convicted
of the underlying substantive crimes of violence as well as conspiracy. Gray’s
§ 924(c) convictions remain valid.
AFFIRMED.
4