United States v. Brian Fierro ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 21 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-16058
Plaintiff-Appellee, D.C. Nos.
2:12-cv-02062-KJD
v. 2:09-cr-00240-KJD-PAL-1
BRIAN FIERRO,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Submitted May 18, 2021**
Before: CANBY, FRIEDLAND, and VANDYKE, Circuit Judges.
Federal prisoner Brian Fierro appeals from the district court’s judgment
denying his motion to vacate under 28 U.S.C. § 2255. We have jurisdiction under
28 U.S.C. § 2253. We review de novo the district court’s denial of a motion to
vacate under § 2255, United States v. Reves, 774 F.3d 562, 564 (9th Cir. 2014),
*
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).
and we affirm.
Appellant argues that Hobbs Act robbery under 18 U.S.C. § 1951 does not
constitute a crime of violence under the elements clause of 18 U.S.C. § 924(c).
This contention is foreclosed. See United States v. Dominguez, 954 F.3d 1251,
1260-61 (9th Cir. 2020) (reaffirming that Hobbs Act robbery qualifies as a crime
of violence under § 924(c)(3)(A)). Fierro asserts that Dominguez was wrongly
decided, but as a three-judge panel, we are bound by the decision. See Miller v.
Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc) (three-judge panel is bound
by circuit precedent unless that precedent is “clearly irreconcilable” with
intervening higher authority).
We treat Fierro’s arguments regarding the district court’s denial of his
motion to amend the § 2255 motion to plead claims under Rehaif v. United States,
139 S. Ct. 2191 (2019), as a motion to expand the certificate of appealability. So
treated, the motion is denied because Fierro has not shown that “jurists of reason
would find it debatable whether the [section 2255 motion] states a valid claim of
the denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” See 28 U.S.C.
§ 2253(c)(2); 9th Cir. R. 22-1(e); Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999); see also Gonzalez v.
Thaler, 565 U.S. 134, 140-41 (2012); Tate v. United States, 982 F.3d 1226, 1227-
2 20-16058
28 (9th Cir. 2020) (holding that Rehaif did not announce a new rule of
constitutional law); United States v. Villa-Gonzalez, 208 F.3d 1160, 1165 (9th Cir.
2000) (stating that the district court must make an independent determination of
whether § 2255(h) is satisfied).
AFFIRMED.
3 20-16058