22 F.4th 1115
9th Cir.2022Background
- Lewis and Young were indicted and pleaded guilty to armed bank robbery (18 U.S.C. § 2113) and to brandishing a firearm in relation to a crime of violence (18 U.S.C. § 924(c)); plea colloquies and judgments reflect both principal and aiding-and-abetting liability.
- A superseding indictment misnumbered counts, leading defendants to argue ambiguity over whether the § 924(c) predicate was conspiracy or substantive armed bank robbery.
- They previously filed § 2255 motions challenging their § 924(c) convictions; those motions were denied, relying in part on Ninth Circuit precedent holding armed bank robbery is a crime of violence under the elements clause.
- After United States v. Davis (declaring § 924(c)(3)(B)’s residual clause void), Lewis and Young sought permission to file second or successive § 2255 motions, arguing Davis undermined their § 924(c) predicates.
- The district court and Ninth Circuit panel held the record shows the § 924(c) predicate was armed bank robbery, that armed bank robbery (and aiding-and-abetting it) remains a crime of violence under the elements clause, and that their claims do not “rely on” Davis for § 2255(h)(2) certification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ambiguity in superseding indictment as to §924(c) predicate | Misnumbering of counts created ambiguity; predicate could be conspiracy | Plea colloquies, indictments, and judgments show substantive armed bank robbery was the predicate | No ambiguity; record shows armed bank robbery was the §924(c) predicate |
| Is armed bank robbery a "crime of violence" after Davis? | Davis invalidated residual clause; therefore §2113 robbery no longer a §924(c) predicate | Ninth Circuit precedent (Watson, Burke) treats armed bank robbery as a crime of violence under the elements clause | Armed bank robbery is a crime of violence under §924(c)(3)(A)’s elements clause |
| Does aiding-and-abetting armed bank robbery qualify as a crime of violence? | Conviction under §2 (aiding-and-abetting) is distinct and not a §924(c) predicate post-Davis | Aiding-and-abetting is not a separate offense; aider is punishable as principal and falls within elements clause | Aiding-and-abetting is treated as committing the underlying offense and thus is a crime of violence |
| Does the claim “rely on” Davis so as to allow a successive §2255? | Davis is a new constitutional rule undermining predicate; §2255(h)(2) certification should follow | The convictions rest on the elements clause and binding circuit precedent, so the claim does not rely on Davis | Claim does not ‘‘rely on’’ Davis; applicants fail §2255(h)(2) gatekeeping and authorization to file is denied |
Key Cases Cited
- United States v. Davis, 139 S. Ct. 2319 (2019) (Supreme Court invalidating §924(c)(3)(B)’s residual clause as unconstitutionally vague)
- United States v. Watson, 881 F.3d 782 (9th Cir. 2018) (armed bank robbery qualifies as a crime of violence under §924(c)(3)(A) elements clause)
- United States v. Burke, 943 F.3d 1236 (9th Cir. 2019) (Davis does not affect offenses that qualify under the elements clause)
- United States v. Dade, 6 F.4th 1013 (9th Cir. 2021) (explaining §2255(h)(2) gatekeeping: claim must rely on a new constitutional rule)
- Garcia v. United States, 923 F.3d 1242 (9th Cir. 2019) (setting AEDPA standard for certifying second or successive §2255 motions)
- Ortega-Lopez v. Barr, 978 F.3d 680 (9th Cir. 2020) (aiding-and-abetting is a means of committing the underlying offense; aider is punishable as principal)