explaining that “there is no distinction between aiding-and-abetting liability and liability as a principal under federal law[,]” and holding that “aiding and abetting a crime of violence, such as -2- armed bank robbery, is also a crime of violence”
How later courts described this case
- explaining that “there is no distinction between aiding-and-abetting liability and liability as a principal under federal law[,]” and holding that “aiding and abetting a crime of violence, such as -2- armed bank robbery, is also a crime of violence”
- “We 18 therefore hold that, because armed bank robbery is categorically a crime of violence, a person who 19 aids or abets armed bank robbery falls, like a principal, within the scope of the definition of the 20 underlying offense and is deemed to have committed a crime of violence under § 924(c)'s elements 21 clause.”
- “We therefore hold that, because armed bank robbery is 6 categorically a crime of violence, a person who aids or abets armed bank robbery falls, like a 7 principal, within the scope of the definition of the underlying offense and is deemed to have 8 committed a crime of violence under § 924(c)’s elements clause.”
- “Even if Lewis and Young waived this argument, we may exercise our discretion to address it because the government argued the issue at length in its answering brief and our review does not prejudice the government.”
Written by the judges who cited it.
The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DERRICK YOUNG, No. 20-71740
Applicant,
v.
UNITED STATES OF AMERICA,
Respondent.
THOMAS LEWIS, No. 20-71741
Applicant,
v. OPINION
UNITED STATES OF AMERICA,
Respondent.
Application to File Second or Successive Motion
Under 28 U.S.C. § 2255
Argued and Submitted October 20, 2021
San Francisco, California
Filed January 18, 2022
2 YOUNG V. UNITED STATES
Before: Bridget S. Bade and Patrick J. Bumatay, Circuit
Judges, and Richard M. Berman, District Judge. *
Opinion by Judge Berman
SUMMARY **
Second or Successive 28 U.S.C. § 2255 Motions
The panel denied Thomas Lewis’s and Derrick Young’s
consolidated applications for permission to file second or
successive 28 U.S.C. § 2255 motions in which they sought
principally to be allowed to present their claim that armed
bank robbery is not a predicate crime of violence under 18
U.S.C. § 924(c) in light of United States v. Davis, 139 S. Ct.
2319 (2019), which held that the “residual clause” definition
of “crime of violence” in 18 U.S.C. § 924(c)(3)(B) is
unconstitutionally vague.
Lewis and Young pleaded guilty to, among other
offenses, use of a weapon in furtherance of a crime of
violence in violation of § 924(c).
Rejecting Lewis and Young’s argument that there is
ambiguity over whether the § 924(c) predicate is conspiracy
to commit armed bank robbery or armed bank robbery, the
*
The Honorable Richard M. Berman, United States District Judge
for the Southern District of New York, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
YOUNG V. UNITED STATES 3
panel wrote that the record is clear that armed bank robbery
is the predicate crime of violence.
The panel rejected Lewis and Young’s contention that
armed bank robbery under 18 U.S.C. § 2113 does not qualify
as a crime of violence post-Davis. Citing United States v.
Watson, 881 F.3d 782 (9th Cir. 2018) (per curiam), and
United States v. Burke, 943 F.3d 1236, the panel wrote that
armed bank robbery remains, post-Davis, a crime of violence
under 18 U.S.C. § 924(c)(3)(A)’s elements clause.
Lewis and Young contended that the superseding
indictment’s Count Two offense is aiding and abetting
armed bank robbery, and that aiding and abetting armed
bank robbery under 18 U.S.C. § 2 does not qualify as a crime
of violence under § 924(c) post-Davis. The panel
disagreed. The panel wrote, first, that there is ample
evidence in the record establishing that Lewis and Young
were charged and convicted of armed bank robbery as both
principals and as aiders and abettors. The panel wrote,
second, that there is no distinction between aiding-and-
abetting liability and liability as a principal under federal
law. The panel held that because armed bank robbery is
categorically a crime of violence, a person who aids or abets
armed bank robbery falls, like a principal, within the scope
of the definition of the underlying offense and is deemed to
have committed a crime of violence under § 924(c)’s
elements clause. In reaching this conclusion, the panel
joined sister circuits that have held, before and after Davis,
that aiding and abetting a crime of violence, such as armed
bank robbery, is also a crime of violence.
The panel considered whether Lewis and Young’s claim
“relies on” the rule articulated in Davis. Assuming without
deciding that Lewis and Young did not waive the argument
4 YOUNG V. UNITED STATES
that the “relies on” requirement in 28 U.S.C. § 2244(b)(2)(A)
applies only to petitions brought under 28 U.S.C. § 2254 by
persons in state custody, the panel held that a second or
successive § 2255 motion must rely on a new rule of
constitutional law. The panel also held that Lewis and
Young cannot, as a matter of law, establish the “relies on”
requirement. The panel explained that because Lewis and
Young’s claim that armed bank robbery is not a crime of
violence post-Davis is foreclosed by Ninth Circuit
precedent, and because they were convicted of crimes that
categorically qualify as predicate crime of violence under
§ 924(c)’s elements clause, the rule in Davis is inapposite.
COUNSEL
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.
YOUNG V. UNITED STATES 5
OPINION
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
1
See United States v. Lewis, 13-cr-00149 (D. Nev. June 26, 2018);
United States v. Lewis, 18-16412 (9th Cir. Dec. 20, 2018); United States
v. Lewis, 18-16412 (9th Cir. Feb. 27, 2019); Lewis v. United States,
No. 19-5401 (S. Ct. Oct. 7, 2019); United States v. Young, 13-cr-00149
(D. Nev. July 25, 2018); United States v. Young, 18-16602 (9th Cir. Dec.
20, 2018); United States v. Young, 18-16602 (9th Cir. Feb. 27, 2019);
Young v. United States, No. 19-5401 (S. Ct. Oct. 7, 2019).
2
Lewis’s and Young’s applications have been consolidated.
6 YOUNG V. UNITED STATES
a predicate crime of violence in light of the decision in
United States v. Davis, 139 S. Ct. 2319 (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.
I. Factual and Procedural Background
A
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
YOUNG V. UNITED STATES 7
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
8 YOUNG V. UNITED STATES
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.”
B
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 (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
YOUNG V. UNITED STATES 9
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, 139 S. Ct. 203 (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.
II. Legal Standard
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
3
Lewis’s and Young’s motions for reconsideration of this ruling
were also denied.
10 YOUNG V. UNITED STATES
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)).
III. Analysis
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.
A
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 bank robbery is the predicate crime of violence
for Lewis’s and Young’s § 924(c) convictions. Count Three
YOUNG V. UNITED STATES 11
of the superseding indictment clearly states that Lewis and
Young “brandish[ed] firearms, that is, two semi-automatic
handguns during and in relation to a crime of violence . . .
that is, Armed Bank Robbery.” And, as recounted above,
the district judge stated several times during Lewis’s plea
allocution that armed bank robbery was the predicate
offense. The same is true for Young’s plea allocution. When
the district judge asked how Young pleaded to the § 924(c)
count, he informed Young that the predicate “Crime of
Violence” was “Armed Bank Robbery.” Young replied that
he was “[g]uilty” of this charge.
Thus, we reject Lewis and Young’s
misnumbering/ambiguity argument as belied by the record. 4
4
We note, without deciding, that this claim may be subject to
dismissal under 28 U.S.C. § 2244(b)(1), which states that “[a] claim
presented in a second or successive habeas corpus application under
section 2254 that was presented in a prior application shall be
dismissed.” Whether dismissal under these circumstances is appropriate
under § 2255 is the subject of some disagreement among our sister
circuits. Compare In re Baptiste, 828 F.3d 1337, 1340 (11th Cir. 2016)
(“[W]e hold that § 2244(b)(1)’s mandate applies to applications for leave
to file a second or successive § 2255 motion presenting the same claims
we have already rejected . . . in a previous application.”), Gallagher v.
United States, 711 F.3d 315, 315 (2d Cir. 2013) (per curiam) (“We must
dismiss a claim that was presented in a prior motion under § 2255.”
(citing § 2244(b)(1))), and Taylor v. Gilkey, 314 F.3d 832, 836 (7th Cir.
2002) (“A claim presented in a second or successive habeas corpus
application under section [2255] that was presented in a prior application
shall be dismissed.” (alterations in original) (quoting § 2244(b)(1))), with
Williams v. United States, 927 F.3d 427, 436 (6th Cir. 2019) (“We . . .
hold that § 2244(b)(1) does not apply to federal prisoners . . . seeking
relief under § 2255.”). We do not reach this issue here.
12 YOUNG V. UNITED STATES
B
Lewis and Young also contend that “armed bank robbery
. . . . does not qualify as a crime of violence post-Davis.”
But as our decision in United States v. Watson makes clear,
this argument is simply wrong. In Watson, we held that
“armed bank robbery is a crime of violence under the
[elements] clause” of § 924(c)(3)(A), which is still valid
after Davis. See 881 F.3d at 784; see also United States v.
Burke, 943 F.3d 1236, 1238 (9th Cir. 2019) (“Although the
Supreme Court recently declared the residual clause
unconstitutionally vague [in Davis], that is of no
consequence to this appeal because [the crime at issue] is a
crime of violence under the elements clause.”). “There is
simply no room to find [armed bank] robbery . . . is anything
but a crime of violence under § 924(c)(3)(A)’s elements
clause following . . . Watson’s binding precedent.” Burke,
943 F.3d at 1239.
C
Lewis and Young also contend that “the Count Two
offense is aiding and abetting armed bank robbery,” and that
“[a]iding and abetting armed bank robbery under 18 U.S.C.
§ 2 does not qualify as a crime of violence under § 924(c)
post-Davis.” We disagree.
First, there is ample evidence in the record establishing
that Lewis and Young were charged and convicted of armed
bank robbery as both principals and as aiders and abettors.
The superseding indictment charged that Lewis and Young
were “aiding and abetting one another,” and that “by force,
violence, and intimidation, did take [over sixteen thousand
dollars] from the person and presence of the victim tellers at
Bank of America, . . . and in committing such offense, did
assault and put in jeopardy the life of another person by the
YOUNG V. UNITED STATES 13
use of dangerous weapons . . . in violation of . . . Sections
2113(a), 2113(d), and 2 [i.e., the aiding-and-abetting
statute].” Lewis’s and Young’s plea colloquies also reflect
their roles as principals and as aiders and abettors, as does
Young’s plea agreement, which states that during the
robbery Young “jumped the counter while making oral
demands for money,” took cash from the teller drawers, and
then “vaulted back over the counter and . . . ran out of the
bank.” Their respective Judgments of Conviction state that
they were convicted of both “Armed Bank Robbery and
Aiding and Abetting [pursuant to] 18 U.S.C. § 2113(a)(d)
and 2.”
Second, there is no distinction between aiding-and-
abetting liability and liability as a principal under federal
law. “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); see also
18 U.S.C. § 2(a); United States v. Garcia, 400 F.3d 816, 820
(9th Cir. 2005). Thus, to the extent Lewis and Young have
been found guilty of armed bank robbery under an aiding-
and-abetting theory, they are treated as if they committed the
offense as principals. See United States v. Henry, 984 F.3d
1343, 1356 (9th Cir.), cert. denied, 142 S. Ct. 376 (2021)
(“Defendants found guilty of armed bank robbery under . . .
[an] aiding-and-abetting theory are treated as if they
committed the offense as principals.”); see also Ortiz-
Magana v. Mukasey, 542 F.3d 653, 659 (9th Cir. 2008)
(stating that “aiding and abetting an [offense] is the
functional equivalent of personally committing that
offense”); United States v. Jones, 678 F.2d 102, 104 (9th Cir.
1982) (holding that “any person who aids or abets” a
violation of § 2113 “is punishable as a principal”); United
States v. Sannicandro, 434 F.2d 321, 324 (9th Cir. 1970)
14 YOUNG V. UNITED STATES
(“This circuit is committed to the view that whoever aids or
abets the commission of an offense against the United States
is punishable as a principal.”). As principals and as aiders
and abettors, they have committed a crime of violence. See
Ortiz-Magana, 542 F.3d at 659 (in assessing whether an
offense “falls within the scope of a crime of violence[,] . . .
there is no material distinction between an aider and abettor
and principals”).
We therefore hold that, because armed bank robbery is
categorically a crime of violence, a person who aids or abets
armed bank robbery falls, like a principal, within the scope
of the definition of the underlying offense and is deemed to
have committed a crime of violence under § 924(c)’s
elements clause. See Ortega-Lopez, 978 F.3d at 687 n.9.
In reaching this conclusion, we join our sister circuits
that have held, before and after Davis, that aiding and
abetting a crime of violence, such as armed bank robbery, is
also a crime of violence. See, e.g., United States v. Waite,
12 F.4th 204, 212, 219 (2d Cir. 2021) (holding that “even
after Davis[,] . . . aiding and abetting Hobbs Act robbery
categorically qualif[ies] as [a] crime[] of violence”); United
States v. Caldwell, 7 F.4th 191, 212–13 (4th Cir. 2021)
(holding that “aiding and abetting a crime of violence is also
categorically a crime of violence” and therefore a
“conviction for aiding and abetting § 2113 bank robbery can
still serve as a predicate for [a] § 924(c) conviction, even
after Davis” (citation omitted)); United States v. Richardson,
948 F.3d 733, 742 (6th Cir.), cert. denied, 141 S. Ct. 344
(2020) (holding that aiding and abetting Hobbs Act robbery
is a crime of violence under § 924(c)(3)(A)); United States
v. Garcia-Ortiz, 904 F.3d 102, 109 (1st Cir. 2018) (rejecting
argument that “a conviction for aiding and abetting a Hobbs
Act robbery cannot categorically constitute a ‘crime of
YOUNG V. UNITED STATES 15
violence’ under section 924’s [elements] clause” because an
aider and abettor is “‘punishable as a principal,’ and thus no
different for purposes of the categorical approach than one
who commits the substantive offense” (citation omitted));
United States v. Deiter, 890 F.3d 1203, 1214–16 (10th Cir.
2018) (holding that aiding and abetting armed bank robbery
is a crime of violence under the categorical approach); In re
Colon, 826 F.3d 1301, 1305 (11th Cir. 2016) (same).
D
Finally, we consider whether Lewis and Young’s claim
“relies on” the rule articulated in Davis. “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.’” Garcia, 923 F.3d at 1244
(alterations in original) (emphasis added) (quoting 28 U.S.C.
§ 2255(h)(2)). In this case, the parties do not dispute these
requirements. Instead, they dispute whether Lewis and
Young’s claim “relies on” the rule articulated in Davis.
Lewis and Young also argue for the first time in their
reply briefs that “Section 2255(h)(2) does not have a ‘relies
on’ requirement,” despite taking the opposite position earlier
in their opening briefs. They contend that
“§ 2244(b)(2)(A)’s ‘relies on’ requirement . . . . only applies
to petitions brought under § 2254 by [persons] in state
custody.”
16 YOUNG V. UNITED STATES
Assuming without deciding that Lewis and Young have
not waived this argument, we reject it. 5 Whether a claim
“relies on” a new constitutional rule is a “gatekeeping
requirement.” United States v. Dade, 6 F.4th 1013, 1018
(9th Cir. 2021). “If the record and legal background support
that the district court did not rely on [§ 924(c)’s] residual
clause when categorizing an offense as a crime of violence,
then a movant’s claim does not ‘rely on’ the new
constitutional rule announced.” Id. at 1018–19; see also
Garcia, 923 F.3d at 1244 (“Before a second or successive
application may be filed in the district court, the court of
appeals must certify that it relies on ‘a new rule, of
constitutional law . . . .’” (alterations and citation omitted)
(emphasis added)); Orona v. United States, 826 F.3d 1196,
1198 (9th Cir. 2016) (per curiam) (noting that the petitioner
had made the requisite “prima facie showing that the claim
he asserts in his proposed § 2255 motion relies on a new rule
of constitutional law” (citation and internal quotation marks
omitted)); United States v. Washington, 653 F.3d 1057, 1065
(9th Cir. 2011) (declining to certify § 2255(h) petition
because, in part, “Washington [did] not purport to rely on a
new rule of constitutional law” (citation and internal
quotation marks omitted)); United States v. Buenrostro, 638
F.3d 720, 721 (9th Cir. 2011) (“The plain text of the Anti-
Terrorism and Effective Death Penalty Act of 1996
(‘AEDPA’) precludes [petitioner] from filing a ‘second or
5
Even if Lewis and Young waived this argument, we may exercise
our discretion to address it because the government argued the issue at
length in its answering brief and our review does not prejudice the
government. See United States v. Ullah, 976 F.2d 509, 514 (9th Cir.
1992) (noting that “[w]e have discretion to review an issue not raised by
[an] appellant . . . when it is raised in the appellee’s brief” and also “may
review an issue if the failure to raise the issue properly did not prejudice
the defense of the opposing party” (first alteration and ellipses in
original) (citation omitted)).
YOUNG V. UNITED STATES 17
successive’ § 2255 motion unless he can show . . . that he
relies on a new rule of constitutional law . . . .”); United
States v. Lopez, 577 F.3d 1053, 1068 (9th Cir. 2009)
(rejecting § 2255(h) petition in part because the petitioner’s
claim “obviously [did] not rely on a new rule of
constitutional law”).
Lewis and Young cannot, as a matter of law, establish
the “relies on” requirement. Their claim that “armed bank
robbery is not a crime of violence post-Davis” is foreclosed
by Ninth Circuit precedent, notably United States v. Watson,
where we held that “armed bank robbery is a crime of
violence under the force [elements] clause [of
§ 924(c)(3)(A)].” 881 F.3d at 784. Similarly, in United
States v. Burke, we held that “[Davis] is of no consequence
to this appeal because . . . . bank robbery under 18 U.S.C.
§ 2113(a) . . . [i]s a crime of violence under § 924(c)(3)(A)’s
elements clause.” 943 F.3d at 1238–39. Lewis and Young
were convicted of crimes that categorically qualify as
predicate crimes of violence under § 924(c)’s elements
clause. As a result, the rule in Davis is inapposite to their
convictions, and their claim does not rely on it. See Dade,
6 F.4th at 1021 (holding that because the petitioner’s
conviction did not rest on § 924(c)’s residual clause, his
second or successive § 2255 motion did “not meet the
gatekeeping requirement” of reliance on a new rule of
constitutional law). 6
6
Our rule that a second or successive § 2255 motion must rely on a
new rule of constitutional law accords with other circuits. See United
States v. Peppers, 899 F.3d 211, 222 n.4 (3d Cir. 2018) (“Section
2255(h)(2) does not include the word ‘relies’ at all. . . . But that language
does appear in § 2244(b)(2)(A), and there is no principled reason for
treating the term differently between the two provisions of AEDPA when
both provisions are nearly identically worded and serve the same
18 YOUNG V. UNITED STATES
Lewis and Young’s claim is squarely foreclosed by
Ninth Circuit precedent and we cannot certify that their
claim “relies on” a new rule of constitutional law.
gatekeeping function . . . .”); Donnell v. United States, 826 F.3d 1014,
1016 (8th Cir. 2016) (“Section 2255(h)(2) says that a second or
successive motion must be certified ‘to contain’ a new rule of
constitutional law that has been made retroactive by the Supreme Court.
‘To contain’ means ‘to consist of wholly or in part,’ to ‘comprise,’ or to
‘include.’ Webster’s Third New International Dictionary 491 (2002).
Mere citation of a new rule in a successive motion is not sufficient to
justify certification. . . . The new rule must have a nexus to the right
asserted in the motion. . . . Section 2244(b)(2)(A) requires certification
that a claim ‘relies on’ a new rule, and it makes sense to interpret
§ 2255(h)(2) similarly despite a modest difference in wording.”); In re
Encinias, 821 F.3d 1224, 1225 n.2 (10th Cir. 2016) (per curiam)
(“Section 2255(h)(2) states that the claim for which authorization is
sought must ‘contain’ the new rule of constitutional law. We have taken
this to mean the claim must be ‘based upon’ or ‘rely on’ the new rule
cited by the movant.” (alterations and citation omitted)); Evans-Garcia
v. United States, 744 F.3d 235, 240 (1st Cir. 2014) (“[A] circuit court
should deny [§ 2255(h)] certification where it is clear as a matter of law,
and without the need to consider contested evidence, that the petitioner’s
identified constitutional rule does not apply to the petitioner’s situation.
To grant certification in such circumstances would be to send the district
court on a fool’s errand.”); In re Elwood, 408 F.3d 211, 213 (5th Cir.
2005) (per curiam) (“The standards for a successive § 2254 petition and
a successive § 2255 motion based on a new constitutional rule are
identical: the claims must rely on a new rule of constitutional law . . . .”
(citation and internal quotation marks omitted)); see also In re Rosado,
7 F.4th 152, 159 (3d Cir. 2021) (“[T]o rely on a rule, the prisoner must
ground his argument within the rule’s limits. He may not read it so
broadly that he ‘contradict[s] binding precedents’ or seeks a ‘facially
implausible’ extension of it.” (second alteration in original) (citation
omitted)).
YOUNG V. UNITED STATES 19
IV. Conclusion
For the foregoing reasons, Lewis’s and Young’s
consolidated applications to file a second or successive
motion under 28 U.S.C. § 2255 are DENIED.