United States v. Michael Jay ( 2017 )

FILED
NOT FOR PUBLICATION
NOV 30 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-16138
Plaintiff-Appellee, D.C. Nos.
1:16-cv-00107-LEK-KJM
v. 1:10-cr-00174-LEK-01
MICHAEL JAY,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Argued and Submitted October 10, 2017
Honolulu, Hawaii
Before: SCHROEDER, D.W. NELSON, and McKEOWN, Circuit Judges.
Defendant-Appellant Michael Jay appeals the district court’s denial of his
motion under 28 U.S.C. § 2255 challenging his sentence following his guilty plea
to Hobbs Act Robbery, in violation of 18 U.S.C. §§ 1951 and 2; using a firearm
during and in relation to a crime of violence, in violation of 18 U.S.C. §§
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
924(c)(1)(B)(i) and 2; and being a felon in possession of a firearm, in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2). Our appellate jurisdiction rests on 28
U.S.C. §§ 1291 and 2255, and we AFFIRM.
Jay contends Hobbs Act Robbery is not a “crime of violence” within the
meaning of 18 U.S.C. § 924(c). Our Court has held it is. See United States v.
Selfa, 918 F.2d 749 (9th Cir. 1990). Jay asks, however, that we overrule Selfa and
the cases following it. We cannot do so. We are bound by Circuit precedent
unless overruled or undermined by an en banc decision of this Court or a decision
of the United States Supreme Court. See Miller v. Gammie, 335 F.3d 889, 899-900
(9th Cir. 2003).
Jay suggests Moncrieffe v. Holder, 133 S.Ct. 1678 (2013) is such
intervening higher authority. But Moncrieffe does no more than require us to look
to the least of the conduct proscribed by the statute, not to the conduct the
defendant actually committed, and determine “whether even those acts are
encompassed by the generic federal offense.” Moncrieffe, 133 S.Ct. at 1684(citations omitted); see also Selfa, 918 F.2d at 751 (holding “the elements of the
crimes of which the defendant was previously convicted, and not the particular
conduct of the defendant on the day the crimes were committed,” controls the
Court’s analysis). Under Selfa and the language of the statute, Hobbs Act Robbery
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requires force or intimidation and does not countenance violation by means of
conduct that is essentially passive. See 18 U.S.C. § 1951(b)(1) (defining “robbery”
as “the unlawful taking or obtaining of personal property from the person or in the
presence of another, against his will, by means of actual or threatened force, or
violence, or fear of injury, immediate or future, to his person or property”); Selfa,
918 F.2d at 751 (“intimidation,” defined as willfully taking or attempting to take in
such a way “that would put an ordinary, reasonable person in fear of bodily harm,”
meets the requirement of a “threatened use of physical force”) (internal quotation
marks and citations omitted).
Jay’s challenge to his designation as a Career Offender under the Guidelines
also fails. Jay’s argument that the Career Offender provision’s residual clause is
void for vagueness is foreclosed by Beckles v. United States, 137 S.Ct. 886, 890
(2017). The district court correctly held that Jay’s prior convictions for Assault in
the First Degree were crimes of violence so he was properly sentenced as a career
offender under U.S.S.G. § 4B1.1.
AFFIRMED.
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