UNITED STATES v. COLE (2021)

MEMORANDUM ***

Tierre Cole appeals the denial of his motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his 18 U.S.C. § 924(c) conviction and sentence. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review de novo both the denial of a § 2255 motion, United States v. Aguirre-Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010), and whether a prior conviction qualifies as a crime of violence under § 924(c), United States v. Begay, 934 F.3d 1033, 1037 (9th Cir. 2019).

Cole was convicted and sentenced under § 924(c) for the use of a firearm during and in relation to a crime of violence (Hobbs Act robbery, 18 U.S.C. § 1951) as a principal and as an aider and abettor. He argues that Hobbs Act robbery does not qualify as a crime of violence after United States v. Davis, ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019),¹ where the Supreme Court concluded that § 924(c)’s residual clause, § 924(c)(3)(B), was unconstitutionally vague.

Under either theory of liability for Hobbs Act robbery, Cole's conviction and sentence under § 924(c) are constitutional. United States v. Dominguez, 954 F.3d 1251, 1255 (9th Cir. 2020), recognized that Hobbs Act robbery qualifies as a crime of violence under § 924(c). And, for the purpose of determining whether an offense qualifies as a crime of violence under § 924(c), aiding and abetting Hobbs Act robbery is treated no differently than a substantive Hobbs Act robbery. See United States v. Hall, 845 Fed.Appx. 644, slip op. at 2-3 (9th Cir. 2021) (aiding and abetting Hobbs Act robbery qualifies as a crime of violence because “aiding and abetting liability does not alter the categorical approach analysis”); see also United States v. Henry, 984 F.3d 1343, 1356 (9th Cir. 2021) (defendants found guilty of armed bank robbery under an aiding and abetting theory are treated as principals). Thus, Cole's conviction and sentence under § 924(c) are constitutional.

AFFIRMED.

FOOTNOTES

1.   Cole may proceed with his appeal even though he waived the right to collaterally attack his sentence in his written plea agreement because he argues that his conviction and sentence are unconstitutional. See United States v. Torres, 828 F.3d 1113, 1125 (9th Cir. 2016); United States v. Barron, 172 F.3d 1153, 1160 (9th Cir. 1999) (en banc).