FILED
NOT FOR PUBLICATION
NOV 30 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-56858
Plaintiff-Appellee, D.C. Nos. 3:16-cv-01561-CAB
3:96-cr-00331-CAB-1
v.
AARON SCOTT PRUETT, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Argued and Submitted October 5, 2017
Pasadena, California
Before: GRABER, MURGUIA, and CHRISTEN, Circuit Judges.
Defendant Aaron Scott Pruett timely appeals the district court’s denial of his
motion filed pursuant to 28 U.S.C. § 2255. Reviewing de novo, United States v.
Swisher, 811 F.3d 299, 306 (9th Cir. 2016) (en banc), we affirm.
Defendant pleaded guilty, in 1996, to armed bank robbery, in violation of 18
U.S.C. § 2113(a), (d), and to using and carrying a handgun during the robbery, in
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
violation of 18 U.S.C. § 924(c)(1). Because of two previous convictions for
robbery in violation of California Penal Code section 211, the court sentenced him
as a career offender under U.S.S.G. § 4B1.1. He now argues that, applying
Johnson v. United States, 135 S. Ct. 2551 (2015), the residual clauses of the then-
applicable versions of 18 U.S.C. § 924(c)(3) and U.S.S.G. § 4B1.2(1) are
unconstitutionally vague.
In 1990, we had held that a conviction for federal bank robbery qualifies as a
"crime of violence" because it "has as an element the use, attempted use, or
threatened use of physical force against the person of another." United States v.
Selfa, 918 F.2d 749, 751 (9th Cir. 1990). And in 1994, we had held that "a
violation of California Penal Code section 211 includes the element of threatened
use of physical force against the person of another." United States v. David H., 29
F.3d 489, 494 (9th Cir. 1994) (per curiam) (internal quotation marks omitted). In
other words, in 1996, Defendant’s armed robbery conviction and his previous
California robbery convictions met the definitions of "crime of violence" apart
from the residual clauses that he now challenges. See 18 U.S.C. § 924(c)(3)(A)
(1996) (defining "crime of violence" as a crime that "has as an element the use,
attempted use, or threatened use of physical force against the person or property of
another"); U.S.S.G. § 4B1.2(1)(i) (1996) (defining "crime of violence" as a crime
2
that "has as an element the use, attempted use, or threatened use of physical force
against the person of another"). There is no suggestion in the record that the
district court or the parties nevertheless considered the residual clauses.
Accordingly, this is not a situation in which "it is unclear from the record whether
the sentencing court relied on the residual clause." United States v. Geozos, 870
F.3d 890, 895 (9th Cir. 2017). Because his conviction and sentence did not
implicate the residual clauses, the Supreme Court’s later decisions concerning the
constitutionality of a residual clause are of no moment, and Defendant cannot
establish that his petition is timely under 28 U.S.C. § 2255(f)(3).
AFFIRMED.
3
FILED
United States v. Pruett, No. 16-56858
NOV 30 2017
CHRISTEN, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in the result. I respectfully depart from the majority because in my
view, the state of the law at the time a sentence is imposed does not always bear on
the timeliness of a criminal defendant’s challenge to his or her sentence. Were the
Supreme Court’s jurisprudence to evolve such that a defendant’s sentencing
enhancement under the pre-Booker career offender guideline could no longer be
supported by the force clause or the residual clause, that defendant should not be
precluded from§ 2255 relief on account of the clause ostensibly invoked at the time
of his or her sentencing. To illustrate, consider a hypothetical situation where:
The Supreme Court applies the categorical or modified categorical approach
to abrogate a longstanding holding of this court that a certain crime qualifies
as a crime of violence under the force clause of the career offender
guideline. Although an affected criminal defendant was sentenced—before
2005—under the force clause, she does not immediately file a § 2255 motion
because her crime remains a crime of violence under the residual clause.
Then the Supreme Court declares the residual clause of the pre-Booker
career offender guideline unconstitutionally vague,1 and the defendant brings
her first § 2255 motion.
I fear that the majority’s holding might be taken to suggest that because the
defendant’s crimes of conviction were undoubtedly crimes of violence under the
force clause at the time of sentencing, her sentence does not implicate the residual
1
This possibility was left open by Beckles v. United States, 137 S. Ct. 886
(2017).
clause and she may not benefit from the Supreme Court’s later decision
invalidating the residual clause. As I see it, the text of § 2255(f)(3) imposes no
such barrier to relief.2
I would dispose of this appeal on the grounds that Pruett has not
demonstrated that his sentence was “imposed in violation of the Constitution or
laws of the United States.” 28 U.S.C. § 2255(a). Pruett’s convictions under
California Penal Code § 211 and 18 U.S.C. § 2113(a),(d) all qualify as crimes of
violence under the force clause of U.S.S.G. § 4B1.2(1) because they have “as an
element the use, attempted use, or threatened use of physical force against the
person of another.” United States v. Chavez-Cuevas, 862 F.3d 729 (2017); United
States v. Selfa, 918 F.2d 749, 751 (9th Cir. 1990). For the same reason, his
conviction under 18 U.S.C. § 2113(a),(d) satisfies the predicate for criminal
liability under 18 U.S.C. § 924(c)(1). United States v. Wright, 215 F.3d 1020,
1028 (9th Cir. 2000). No intervening authority has undermined our holdings that
California robbery and federal armed robbery are crimes of violence under
U.S.S.G. § 4B1.2(1) and 18 U.S.C. § 924(c)(3)’s force clauses.
In sum, even if we assume, for the sake of argument, that the residual
2
The same argument applies to a conviction that could rest on either a force
clause or a residual clause.
2
clauses in U.S.S.G. § 4B1.2(1) and 18 U.S.C. § 924(c)(3) are indistinguishable
from the one invalidated in Johnson v. United States, 135 S. Ct. 2551, 2563 (2015),
Pruett is not entitled to relief under 28 U.S.C. § 2255(a) because his convictions
under California Penal Code § 211 and 18 U.S.C. § 2113(a),(d) remain crimes of
violence under this circuit’s case law.
3
United States v. Aaron Pruett
Combined Opinion