United States v. Dubarry

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT July 9, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 16-4067 (D.C. Nos. 2:16-CV-00260-DAK & MARK A. DUBARRY, 2:09-CR-00680-DAK-1) (D. Utah) Defendant - Appellant. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY _________________________________

Before LUCERO, HARTZ, and MORITZ, Circuit Judges. _________________________________

Mark A. Dubarry seeks a certificate of appealability (COA) to appeal the district court’s denial of his motion under 28 U.S.C. § 2255. He claims that his conviction under 18 U.S.C. § 924(c)(1)(A)—for which the predicate crime of violence was Hobbs Act robbery—is unconstitutional in light of the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015). We deny a COA and dismiss the appeal.

I. BACKGROUND

In 2009 Mr. Dubarry pleaded guilty in the United States District Court for the District of Utah to one count of Hobbs Act robbery, see 18 U.S.C. § 1951(a), and one

 This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

count of using or carrying a firearm during that robbery, see 18 U.S.C. § 924(c)(1)(A). He received a 180-month sentence—96 months for the robbery conviction and a consecutive 84 months for the § 924(c)(1)(A) conviction. As relevant here, § 924(c)(1)(A) provides:

[A]ny person who, during and in relation to any crime of violence . . . for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence . . . (ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years[.] § 924(c)(1)(A)(emphasis added). The term crime of violence for purposes of this

provision means an offense that is a felony and “(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” § 924(c)(3). The crime of violence underlying Mr. Dubarry’s § 924(c)(1)(A) conviction was the Hobbs Act robbery. (He does not dispute that the firearm was brandished.)

In Johnson v. United States, 135 S. Ct. 2551, 2257, 2563 (2015), the Supreme Court struck down the so-called “residual clause” in the Armed Career Criminal Act (ACCA) as unconstitutionally vague. That clause defines violent felony as a crime that “involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii) (internal quotation marks omitted).

Within one year of Johnson, Mr. Dubarry filed a pro se § 2255 motion to vacate his sentence. He argued that his conviction under § 924(c)(1)(A) should be vacated *3 because the definition of crime of violence in § 924(c)(3)(B)’s residual clause was unconstitutional under Johnson. The district court denied the motion, holding that it was barred by the one-year statute of limitations in 28 U.S.C. § 2255(f), and that Johnson did not restart the one-year period because the Supreme Court had not made Johnson retroactively applicable to cases on collateral review.1 Alternatively, the district court denied relief on the merits, concluding that Johnson’s reasoning regarding the ACCA’s residual clause was inapplicable to the residual clause of § 924(c)(3)(B). The court also denied a COA. Now with the assistance of appointed counsel, Mr. Dubarry seeks a COA from this court.

II. DISCUSSION

To obtain a COA, Mr. Dubarry need only make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To satisfy this standard, he must demonstrate that “jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

In his COA application and opening brief, Mr. Dubarry argues that his § 924(c) conviction should be vacated because § 924(c)(3)(B)’s residual clause is unconstitutionally vague, and because Hobbs Act robbery is not categorically a crime of

1 A few days after the district court denied Mr. Dubarry’s § 2255 motion, the Supreme Court made Johnson retroactively applicable to cases on collateral review. See Welch v. United States, 136 S. Ct. 1257, 1268 (2016).

violence under § 924(c)(3)(A)’s elements clause. We have recently addressed both of these issues in published decisions. In United States v. Salas, 889 F.3d 681, 684–86 (10th Cir. 2018), we held that § 924(c)(3)(B)’s definition of crime of violence is unconstitutional under Sessions v. Dimaya, 138 S. Ct. 1204, 1215–16 (2018), in which the Supreme Court extended Johnson’s reasoning to hold that this same definition in 18 U.S.C. § 16(b) was unconstitutionally vague. But in United States v. Melgar-Cabrera, 892 F.3d 1053 (10th Cir. 2018), we held that Hobbs Act robbery is categorically a crime of violence under the elements clause of § 924(c)(3)(A) because that clause requires the use of violent force, id. at 1064, and the force element in Hobbs Act robbery “can only be satisfied by violent force,” id. at 1064–65. As a result, a reasonable jurist could not debate that Mr. Dubarry’s Hobbs Act robbery conviction is a crime of violence under the elements clause.

Mr. Dubarry advances one argument not addressed in Melgar-Cabrera or elsewhere by this court: that Hobbs Act robbery does not satisfy § 924(c)(3)(A) “because it can be accomplished by threatening injury to intangible property, which does not require the use of any force at all.” Aplt. Opening Br. at 30. But the only cases he cites in support concern Hobbs Act extortion, not Hobbs Act robbery. See United States v. Arena, 180 F.3d 380, 385, 392 (2d Cir. 1999), abrogated in part on other grounds by Scheidler v. Nat’l Org. for Women, Inc., 537 U.S. 393, 403 n.8 (2003); United States v, Local 560 of the Int’l Bhd. of Teamsters, 780 F.2d 267, 281–82 (3d Cir. 1985); and United States v. Iozzi, 420 F.2d 512, 515 (4th Cir. 1970). And “[t]he Hobbs Act . . . is a divisible statute setting out two separate crimes—Hobbs Act robbery and Hobbs Act *5 extortion.” United States v. O’Connor, 874 F.3d 1147, 1152 (10th Cir. 2017). Mr. Dubarry does not argue that he was convicted of Hobbs Act extortion, and the cases he cites do not call into question Melgar-Cabrera’s holding that Hobbs Act robbery is categorically a crime of violence. We note that several district courts have rejected reliance on these same cases in support of the same argument. See United States v. McCallister, No. 15–0171 (ABJ), 2016 WL 3072237, at *8–9 (D.D.C. May 31, 2016) (unpublished); United States v. Clarke, 171 F. Supp. 3d 449, 453–54 & nn. 5–6 (D. Md. 2016); United States v. Hancock, 168 F. Supp. 3d 817, 822–23 & n.3 (D. Md. 2016).

We deny a COA and dismiss the appeal.

Entered for the Court

Harris L Hartz Circuit Judge