United States v. Anthony Jordan ( 2017 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
MAR 14 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 15-10156
Plaintiff-Appellee, D.C. No. 2:13-cr-00221-APG-CWH-1
v.
MEMORANDUM*
ANTHONY JORDAN,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Argued and Submitted February 16, 2017
San Francisco, California
Before: W. FLETCHER, FUENTES,** and RAWLINSON, Circuit Judges.
Defendant Anthony Jordan appeals his convictions for aiding and abetting
the use, carry, or brandishing of a firearm during and in relation to three bank
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Julio M. Fuentes, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
robberies, in violation of 18 U.S.C. § 924(c)(1)(A) and 18 U.S.C. § 2. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
First, Jordan challenges the sufficiency of the evidence supporting his
firearm convictions under § 924(c). We review de novo challenges to the
sufficiency of the evidence supporting a conviction. United States v. Bennett, 621
F.3d 1131, 1135 (9th Cir. 2010). We “view[] the evidence produced at trial in the
light most favorable to the prosecution” and consider whether the evidence “is
sufficient to allow any rational juror to conclude that the government has carried its
burden of proof.” United States v. Nevils, 598 F.3d 1158, 1169 (9th Cir. 2010) (en
banc).
Jordan argues that the government failed to prove that he had foreknowledge
that his co-robber would use, carry, or brandish a firearm during the course of the
robberies. Viewing the evidence in the light most favorable to the government, a
rational juror could find beyond a reasonable doubt that Jordan had the requisite
knowledge. Jordan’s partner in the robberies, Marquee Munerlyn, testified that
Jordan knew Munerlyn would carry, and possibly brandish, a firearm. In addition,
the jury heard evidence that Jordan had participated in six earlier robberies with
Munerlyn and that Munerlyn had carried a gun during all of the robberies and
brandished a gun during some of them. This evidence was sufficient to sustain
Jordan’s convictions under § 924(c).
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Second, Jordan argues that bank robbery under 18 U.S.C. § 2113(a) is not
categorically a crime of violence within the meaning of § 924(c)(3)(A) and that his
§ 924(c) convictions must therefore be set aside.1 Because Jordan failed to object
before the district court to the use of his bank robbery convictions as predicate
crimes for the § 924(c) charges, we review for plain error. See United States v.
Gonzalez-Aparicio, 663 F.3d 419, 426 (9th Cir. 2011) (applying the plain error
standard where the defendant failed to object to the characterization of his prior
conviction as a “crime of violence”). Under the plain error standard, “the appellant
must show that: (1) there was error; (2) the error committed was plain; (3) the error
affected substantial rights; and (4) the error seriously affected the fairness,
integrity, or public reputation of judicial proceedings.” Id. at 428. In order for an
error to be plain, it must at least be “clear under current law.” United States v.
Olano, 507 U.S. 725, 734 (1993).
Under our current case law, § 2113(a) bank robbery categorically qualifies
as a “crime of violence” under § 924(c)(3)(A). See United States v. Wright, 215
F.3d 1020, 1028 (9th Cir. 2000); United States v. Selfa, 918 F.2d 749, 751 (9th Cir.
1990). Johnson v. United States, 559 U.S. 133 (2010), Johnson v. United States,
1
Because we conclude that Jordan’s bank robbery convictions qualify as
crimes of violence under the “elements clause” of § 924(c)(3), we need not reach
his argument that the “residual clause,” § 924(c)(3)(B), is unconstitutionally vague.
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135 S. Ct. 2551 (2015), and Mathis v. United States, 136 S. Ct. 2243 (2016), have
not so clearly displaced our earlier precedents as to warrant plain error reversal.
Finally, Jordan argues that his 730-month sentence violates the Eighth
Amendment’s prohibition on cruel and unusual punishment. We review de novo
the constitutionality of a sentence under the Eighth Amendment. United States v.
Hungerford, 465 F.3d 1113, 1116 (9th Cir. 2006). Jordan’s argument is foreclosed
by circuit precedent. Id. at 1118.
AFFIRMED.
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