Young v. United States
| Decision Date | 18 January 2022 |
| Docket Number | No. 20-71741,No. 20-71740,20-71740 |
| Citation | 22 F.4th 1115 |
| Parties | Derrick YOUNG, Applicant, v. UNITED STATES of America, Respondent. Thomas Lewis, Applicant, v. United States of America, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Cristen C. Thayer, Assistant Federal Public Defender; Rene L. Valladares, Federal Public Defender; Office of the Federal Public Defender, Las Vegas, Nevada; for Applicants.
Elizabeth O. White, Appellate Chief; Nicholas A. Trutanich, United States Attorney; United States Attorney's Office, Reno, Nevada; for Respondent.
Before: Bridget S. Bade and Patrick J. Bumatay, Circuit Judges, and Richard M. Berman, District Judge.**
Derrick Young pleaded guilty, pursuant to a plea agreement, to armed bank robbery in violation of 18 U.S.C. § 2113, and use of a weapon in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c). Young's co-defendant, Thomas Lewis, pleaded guilty to conspiracy to commit armed bank robbery in violation of 18 U.S.C. §§ 371, 2113 ; armed bank robbery in violation of 18 U.S.C. § 2113 ; and use of a weapon in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c). Both men received prison sentences of over 100 months.
Lewis and Young have filed eight challenges to their convictions and sentences (four challenges each), in the form of habeas petitions, applications for certificates of appealability, motions for reconsideration, and petitions for writ of certiorari in the U.S. Supreme Court. All their challenges have been unsuccessful.1
On June 19, 2020, Lewis and Young filed applications seeking permission to file second or successive motions under 28 U.S.C. § 2255.2 They seek principally to be allowed to present their claim that armed bank robbery is not a predicate crime of violence in light of the decision in United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), which held that the "residual clause" definition of "crime of violence" in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague. See Davis , 139 S. Ct. at 2324, 2336.
For the reasons set forth below, we find that both Lewis and Young were convicted of armed bank robbery, that armed bank robbery is a crime of violence under the still-valid "elements clause" of 18 U.S.C. § 924(c)(3)(A), and that aiding and abetting a crime of violence is also a crime of violence. Relatedly, we find that Lewis and Young have not met the requirements for filing a second or successive motion under 28 U.S.C. § 2255 because, under Ninth Circuit precedent, their claim does not "rely on" a new rule of constitutional law.
In 2013, a grand jury returned an indictment charging Lewis and Young (along with a third co-defendant) with the following offenses: (1) "COUNT ONE (Armed Bank Robbery)"; and (2) "COUNT TWO (Use of a Weapon in Furtherance of a Crime of Violence) ... that is, Armed Bank Robbery as Charged in Count One." The grand jury later returned a superseding indictment adding a count of "Conspiracy to Commit Armed Bank Robbery," which was designated as Count One in the superseding indictment. The counts for armed bank robbery and use of a weapon in furtherance of a crime of violence became Count Two and Count Three, respectively.
The superseding indictment reads as follows: (1) "COUNT ONE (Conspiracy to Commit Armed Bank Robbery)"; (2) "COUNT TWO (Armed Bank Robbery)"; and (3) "COUNT THREE (Use of a Weapon in Furtherance of a Crime of Violence) ... that is, Armed Bank Robbery as Charged in Count One [sic]." Through inadvertence, the wording of Count Three was not revised to reflect that the armed bank robbery count had become Count Two.
Count Two of the superseding indictment charges that Lewis, Young, and their co-defendant, "aiding and abetting one another, by force, violence and intimidation," stole over sixteen thousand dollars from a Bank of America in Las Vegas, Nevada, while brandishing handguns, "in violation of Title 18, United States Code, Sections 2113(a), 2113(d) and 2." Section 2113 is the federal bank robbery statute. Section 2 refers to the federal aiding-and-abetting statute, which makes an aider and abettor derivatively a principal. "Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal." 18 U.S.C. § 2(a).
Young entered into a plea agreement and at the plea allocution testified that with respect to Count Two, "[he] took money belonging to the Bank of America; ... [he] use[d] [ ] force, violence, [ ] or intimidation in doing so; [and] ... [he] intentionally made a display of force that reasonably caused the victim or victims ... to fear bodily harm." With respect to Count Three, Young admitted that "[he] committed the crime of Armed Bank Robbery as charged in Count Two of the Indictment [and] ... [he] knowingly brandished a handgun during and in [ ] relation to the crime of Armed Bank Robbery charged in Count Two." In his plea agreement, Young admitted and declared under penalty of perjury that the facts underlying Counts Two and Three were true, including that he "brandished [a] semi-automatic pistol[ ]," jumped over the bank's counter "while making oral demands for money," and took "cash and two electronic tracking devices."
Lewis pleaded guilty on what was to be his second day of trial, without entering into a plea agreement. At the plea allocution, Lewis engaged in a lengthy colloquy with the district judge, repeatedly acknowledging that he understood the nature of the charges against him and the effect of the guilty plea and admitted to the factual basis for his guilt. He testified, among other things, that on the day of the robbery he "went into the Bank of America armed, demandin[g] money." He stated that he displayed his firearm to people inside the bank in a threatening manner "to obtain their cooperation." He testified that he was with Young in the bank when Young took the money and that he assisted Young in taking the money, confirming that he was "aiding and abetting" Young and used "violence or intimidation in doing so." Finally, he admitted that he committed the crime of armed bank robbery as a predicate offense for the § 924(c) violation, and that he "knowingly brandish[ed] the handgun during and in relationship to the robbery."
Lewis's and Young's respective judgments set forth their convictions of "Armed Bank Robbery and Aiding and Abetting."
In 2016, Lewis and Young filed their first motions pursuant to 28 U.S.C. § 2255. They challenged their § 924(c) weapons convictions based upon the decision in Johnson v. United States , 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), arguing, among other things, that the superseding indictment was ambiguous about whether the predicate offense for the § 924(c) charge was conspiracy to commit armed bank robbery or armed bank robbery, and that conspiracy is not a valid § 924(c) predicate.
The district court denied the motions. The district court explained there was no actual "confusion" about which offense was charged as the § 924(c) predicate crime of violence, concluding that the failure of the superseding indictment to reflect the revised count numbers did "not render the statute of conviction ambiguous" because there "was never any suggestion" that conspiracy was the predicate offense and it was clear that substantive armed bank robbery was the predicate.
The district court also held that Lewis's and Young's first habeas challenges were "foreclosed" by United States v. Watson , 881 F.3d 782 (9th Cir. 2018) (per curiam), cert. denied , ––– U.S. ––––, 139 S. Ct. 203, 202 L.Ed.2d 139 (2018), which established that "armed bank robbery under federal law is a crime of violence under [the elements clause of] 18 U.S.C. § 924(c)." Lewis and Young later petitioned this court for certificates of appealability, which were denied.3 Lewis and Young then filed a petition for writ of certiorari to the Supreme Court, which was denied.
We evaluate Lewis's and Young's consolidated applications to file second or successive § 2255 motions under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Under AEDPA, permitting a prisoner "to file a second or successive federal habeas corpus petition is not the general rule, it is the exception, and an exception that may be invoked only when the demanding standard set by Congress is met." Garcia v. United States , 923 F.3d 1242, 1243–44 (9th Cir. 2019) (citation omitted). "Before a second or successive application may be filed in the district court, the court of appeals must certify that it relies on ‘[1] a new rule, [2] of constitutional law, [3] made retroactive to cases on collateral review by the Supreme Court, [4] that was previously unavailable.’ " Id. at 1244 (alterations in original) (quoting 28 U.S.C. § 2255(h)(2) ).
Before turning to the question of whether Lewis and Young's claim "relies on" a new rule of constitutional law established in Davis , we address the issues of whether there was any ambiguity in the superseding indictment, whether armed bank robbery is a crime of violence, and the meaning of aiding and abetting.
Lewis and Young argue, as they did in their first § 2255 motions, that because of Count Three's mis-reference to Count One there is "ambiguity over whether the § 924(c) predicate is conspiracy to commit armed bank robbery or armed bank robbery." We disagree. As the government argues, the district court "squarely found" that Lewis's and Young's § 924(c) convictions were predicated on armed bank robbery and not on conspiracy. Thus, the district court rejected this argument in deciding Lewis's and Young's first § 2255 motions, concluding armed bank robbery clearly was the predicate offense for the § 924(c) convictions.
We too reject this argument because the record is clear that armed...
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