United States v. Otis Mobley

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 17 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-17241

Plaintiff-Appellee, D.C. Nos. 4:16-cv-03588-YGR 4:12-cr-00235-YGR-2 v.

OTIS MOBLEY, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California Yvonne Gonzalez Rogers, District Judge, Presiding

Submitted July 14, 2020** San Francisco, California

Before: TALLMAN and HUNSAKER, Circuit Judges, and SILVER,*** District Judge.

Otis Mobley appeals the district court’s denial of his motion under 28 U.S.C. § 2255 to set aside his sentence. We have jurisdiction under 28 U.S.C. § 2253(a)

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Roslyn O. Silver, United States District Judge for the District of Arizona, sitting by designation.

and 28 U.S.C. § 1291, and we dismiss the appeal.

Mobley pleaded guilty to violations of 18 U.S.C. §§ 111(b) and 924(c) after attempting to rob a federal agent at gunpoint during a grenade-launcher-sale gone wrong. See United States v. Mobley, 803 F.3d 1105, 1107 (9th Cir. 2015). He was sentenced to 114 months’ imprisonment: 30 months for § 111(b) and 84 months consecutive for § 924(c). Mobley moved under § 2255 to vacate his sentence, contending that § 111(b) cannot constitute a “crime of violence” under § 924(c) in light of the Supreme Court’s decision in United States v. Davis, 139 S. Ct. 2319 (2019), which struck down § 924(c)(3)(B) (the “residual clause”) as unconstitutionally vague. The government claims Mobley’s sentence can be justified under § 924(c)(3)(A) (the “elements clause”) which defines as a crime of violence any felony that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”

Mobley’s collateral-attack waiver is valid, but it does not prevent us from looking at the merits of Mobley’s petition to see if his sentence is “illegal” after Davis. See United States v. Torres, 828 F.3d 1113, 1125 (9th Cir. 2016). The waiver question thus collapses into the merits: if Mobley’s sentence is illegal, his waiver is no bar to the suit; if his sentence remains valid, the waiver bars the petition. The government concedes this point in its brief.

We review the district court’s denial of Mobley’s § 2255 petition de novo, *3 see United States v. Fultz, 923 F.3d 1192, 1194 (9th Cir. 2019), along with its determination that a crime is categorically violent, see United States v. Begay, 934 F.3d 1033, 1037 (9th Cir. 2019). The legality of Mobley’s sentence is controlled by United States v. Juvenile Female, 566 F.3d 943 (9th Cir. 2009). We held there that § 111(b) is categorically violent; that is, that every violation of § 111(b) necessarily entails the use of force against a person, or the threat or attempt of the same. Id. at 947–48. That holding binds us. See United States v. Shelby, 939 F.3d 975, 978 (9th Cir. 2019) (later panel may decline to apply prior holding only if it is “clearly irreconcilable with a subsequent Supreme Court decision”) (internal quotation marks omitted).

Because § 111(b) is categorically violent, Mobley’s sentence is justified under § 924(c)’s elements clause. We therefore enforce his collateral-attack waiver.

DISMISSED.