FILED
NOT FOR PUBLICATION
APR 23 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-16166
Plaintiff-Appellee, D.C. Nos. 2:16-cv-01453-JAD
2:12-cr-00132-JAD-
v. CWH-3
MICHAEL HALL,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Argued and Submitted April 13, 2021
San Francisco, California
Before: McKEOWN, RAWLINSON, and BADE, Circuit Judges.
Michael Hall (Hall) appeals the district court’s order denying his motion to
vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (§ 2255).
Hall contends that the district court erred in holding that his conviction for robbery
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
in violation of the Hobbs Act was a crime of violence under 18 U.S.C. § 924(c).1
Contrary to the government’s assertions, Hall’s challenge to his sentence is
not barred by the collateral attack waiver in his plea agreement or his unconditional
guilty plea. See United States v. Torres, 828 F.3d 1113, 1125 (9th Cir. 2016)
(concluding that a waiver of appeal rights does “not apply if a defendant’s sentence
is illegal”) (citations and internal quotation marks omitted). The government
waived its procedural default argument by failing to raise it in the district court.
See United States v. Swisher, 811 F.3d 299, 307 (9th Cir. 2016) (en banc)
(explaining that “[a]lthough federal prisoners are generally barred from raising
claims on collateral review that they could have raised on direct appeal, the
government can waive a procedural default defense by failing to raise it”) (citations
omitted).2 Because there are no jurisdictional or procedural impediments to our
review, we have jurisdiction pursuant to 28 U.S.C. § 2253(a), and we affirm the
district court’s denial of Hall’s § 2255 motion.
Hall’s assertion that Hobbs Act robbery is not a crime of violence under 18
1
Hall also maintained that 18 U.S.C. § 924(c)(3)(B) (the residual clause)
was invalidated by Johnson v. United States, 576 U.S. 591 (2015). The
government has conceded that the residual clause is no longer valid in light of
United States v. Davis, 139 S. Ct. 2319 (2019).
2
The government abandoned its contention that Hall failed to timely file his
§ 2255 motion.
2
U.S.C. § 924(c)(3)(A) is foreclosed by our precedent. See United States v.
Dominguez, 954 F.3d 1251, 1261 (9th Cir. 2020) (affirming that “Hobbs Act
robbery is a crime of violence under 18 U.S.C. § 924(c)(3)(A)”).3
Hall’s contention that aiding and abetting Hobbs Act robbery is not a crime
of violence is also unavailing. “Aiding and abetting is not a separate offense; it is
simply one means of committing the underlying crime.” Ortega-Lopez v. Barr,
978 F.3d 680, 687 n.9 (9th Cir. 2020) (citation and internal quotation marks
omitted). Because Hobbs Act robbery is a crime of violence, see Dominguez, 954
F.3d at 1260-61, “[a] person who aids or abets [Hobbs Act robbery] falls, like a
principal, within the scope of the generic definition of the underlying offense.”
Ortega-Lopez, 978 F.3d at 687 n.9 (citation and internal quotation marks omitted).
Thus, Hall’s “aiding and abetting liability does not alter the categorical approach
analysis,” and he was properly sentenced under 18 U.S.C. § 924(c)(1)(A)(ii) for
committing a crime of violence. Id.; see also United States v. Henry, 984 F.3d
1343, 1356 (9th Cir. 2021) (stating that we have “repeatedly upheld § 924(c)
3
Hall contends that Dominguez was wrongly decided, and that it
contravenes United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc),
abrogated on other grounds by United States v. Stitt, 139 S. Ct. 399, 407 (2018),
and Descamps v. United States, 570 U.S. 254 (2013). However,“[o]ur circuit’s
published opinions on the law are authoritative once issued and remain binding on
subsequent panels of this court.” Langere v. Verizon Wireless Servs., LLC, 983
F.3d 1115, 1121 (9th Cir. 2020) (citation omitted).
3
convictions based on accomplice liability,” and recognizing that “the First, Third,
Sixth, Tenth, and Eleventh Circuits have all held that aiding and abetting Hobbs
Act robbery . . . is a crime of violence under § 924(c)(3)(A)”) (citations omitted).4
AFFIRMED.
4
The parties disagree whether Hall waived the issue of whether aiding and
abetting Hobbs Act robbery is a crime of violence. We exercise our discretion to
address this question of law. See Dominguez, 954 F.3d at 1256 (concluding that
“whether Hobbs Act robbery, attempted Hobbs Act robbery, and conspiracy to
commit Hobbs Act robbery are crimes of violence are pure questions of law, and
the government, which . . . fully briefed the issue, suffer[ed] no prejudice”)
(citation omitted); see also Community House, Inc. v. City of Boise, 623 F.3d 945,
968 (9th Cir. 2010) (explaining that “we may exercise our discretion to consider an
issue first raised on appeal if it is a pure question of law and the record is sufficient
to review the issue”) (citation and internal quotation marks omitted).
4