United States v. Rojas ( 2018 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 4, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-2065
(D.C. Nos. 1:16-CV-00675-MCA-KBM
DANIEL ROJAS, and 1:05-CR-01618-MCA-1)
(D. N.M.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, McKAY, and O’BRIEN, Circuit Judges.
_________________________________
Daniel Rojas, a federal prisoner, seeks to challenge the district court’s
dismissal of his 28 U.S.C. § 2255 motion. Exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm the district court.
BACKGROUND
On June 26, 2005, a federal grand jury indicted Rojas with two counts of
robbery under the Hobbs Act, that is, interfering with commerce by threats or
violence, in violation of 18 U.S.C. § 1951(a); two counts of using and carrying a
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
firearm during and in relation to a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii); and one count of being a felon in possession of a firearm and
ammunition, in violation of 18 U.S.C. § 922(g)(1). Rojas pleaded guilty to one count
of Hobbs Act robbery, interfering with commerce by threats or violence, in violation
of 18 U.S.C. § 1951(a), and one count of using and carrying a firearm during or in
relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). The
government dismissed the remaining counts. The district court sentenced him to
twenty-four years of imprisonment.
On June 24, 2016, Rojas filed a 28 U.S.C. § 2255 petition to set aside and
correct his sentence. He asked the district court to set aside his 24-year prison term,
which the district court had imposed “after finding that he discharged a firearm
during an alleged crime of violence, a Hobbs Act robbery, in violation of 18 U.S.C.
§ 924(c)(1)(A)(iii).” R. vol. II at 32. He contended his prison term should be set
aside because “Hobbs Act robbery [] qualif[ies] as a crime of violence only by using
the definition in [18 U.S.C.] § 924(c)(3)(B)’s residual clause.” Id. And under
Johnson v. United States, 135 S. Ct. 2551 (2015), he contended, § 924(c)(3)(B)’s
residual clause is unconstitutionally vague.
He also contended that Hobbs Act robbery doesn’t qualify as a crime of
violence under § 924(c)(3)(A), which requires that the predicate felony have “as an
element the use, attempted use, or threatened use of physical force against the person
or property of another.” It doesn’t so qualify, he argued, (1) because Hobbs Act
robbery is just common-law robbery that affects interstate commerce, and common-
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law robbery can be committed without using violent force; (2) because Hobbs Act
robbery can be committed by causing fear of injury without a threat of physical force,
i.e. by exposing a victim to hazardous chemicals; and (3) because Hobbs Act robbery
can be committed by creating fear of economic harm or other harm to intangible
property, which would not entail the use or threatened use of violent physical force.
The district court denied Rojas’s motion for two reasons. First, it refused to
extend Johnson’s holding to invalidate § 924(c)(3)(B)’s residual clause. Second, it
concluded that Hobbs Act robbery qualifies as a crime of violence under
§ 924(c)(3)(A), the elements (or force) clause. The district court granted Rojas a
certificate of appealability, determining that he had made a substantial showing of a
denial of a constitutional right. Rojas now appeals.
DISCUSSION
“We review de novo the district court’s interpretation of § 924(c) and its legal
conclusion that a particular offense constitutes a crime of violence.” United States v.
Melgar-Cabrera, 892 F.3d 1053, 1060 (10th Cir. 2018) (citing United States v.
Serafin, 562 F.3d 1105, 1107 (10th Cir. 2009)). On appeal, Rojas contends: (1) that
the district court erred when it found that Rojas pleaded guilty to a crime of violence
under § 924(c)(3)(A); (2) that Hobbs Act robbery isn’t a crime of violence under
§ 924(c)(3)(A), the elements clause, because Hobbs Act robbery “can be committed
by putting someone in ‘fear of injury, immediate or future, to his person or
property,’” Appellant’s Opening Br. at 12; and (3) that after Johnson, Rojas’s
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§ 924(c) conviction violates the Due Process Clause because § 924(c)(3)(B)’s
residual clause is unconstitutionally vague.
We need only address Rojas’s second argument.1 In Melgar-Cabrera, we held
that Hobbs Act robbery is a crime of violence under § 924(c)(3)(A), the elements
clause. 892 F.3d at 1064–66. Despite this holding, Rojas filed a letter contending that
Melgar-Cabrera didn’t address the fear-of-injury-to-property argument that he
advances now. But a panel of this court recently applied Melgar-Cabrera’s holding
to Rojas’s property argument.
In United States v. Dubarry, 2018 WL 3342275, at *2 (10th Cir. July 9, 2018),
a federal prisoner advanced Rojas’s same argument. There, the prisoner contended
“that Hobbs Act robbery does not satisfy § 924(c)(3)(A) ‘because it can be
accomplished by threatening injury to intangible property, which does not require the
use of any force at all.’” 2018 WL 3342275, at *2. The Dubarry panel explained that
Melgar-Cabrera “held that Hobbs Act robbery is categorically a crime of violence
under the elements clause of § 924(c)(3)(A) because that clause requires the use of
violent force, and the force element in Hobbs Act robbery ‘can only be satisfied by
violent force.’” Id. (quoting Melgar-Cabrera, 892 F.3d at 1065). And it explained
that Hobbs Act robbery “is a divisible statute setting out two separate crimes—Hobbs
Act robbery and Hobbs Act extortion.” Id. (quoting United States v. O’Connor, 874
F.3d 1147, 1152 (10th Cir. 2017)). So, the panel determined, Hobbs Act robbery is
1
In United States v. Salas, 889 F.3d 681, 687–88 (10th Cir. 2018), we
invalidated § 924(c)(3)(B)’s residual clause as unconstitutionally vague.
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categorically a crime of violence notwithstanding the prisoner’s property argument.
Id.
Like Dubarry, Rojas doesn’t “argue that he was convicted of Hobbs Act
extortion, and the cases he cites do not call into question Melgar-Cabrera’s holding
that Hobbs Act robbery is categorically a crime of violence.” Id. So we agree with
the Dubarry and Melgar-Cabrera panels that Hobbs Act robbery is categorically a
crime of violence under § 924(c)(3)(A).
CONCLUSION
We affirm the district court.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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