Opposition Brief — Judel Espinoza-Gonzalez, Petitioner v. United States

No. 21-8201

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

JUDEL ESPINOZA-GONZALEZ, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

KENNETH A. POLITE, JR.

Assistant Attorney General

FRANCESCO VALENTINI

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether the district court correctly enforced petitioners’

knowing and voluntary waivers of their rights to collaterally

attack their convictions.

(I)

ADDITIONAL RELATED PROCEEDINGS

United States Court of Appeals (9th Cir.):

United States v. Espinoza-Gonzalez, No. 17-15778 (June 16,

2017) (order granting certificate of appealability)

United States v. Espinoza-Gonzalez, No. 17-15778 (Mar. 22,

2022)

United States v. Figueroa, No. 18-16151 (Oct. 1, 2020) (order

granting certificate of appealability)

United States v. Figueroa, No. 18-16151 (Mar. 23, 2022)

United States v. Goldstein, No. 17-16187 (Mar. 23, 2022)

United States v. Juarez, No. 18-16145 (Oct. 1, 2020) (order

granting certificate of appealability)

United States v. Juarez, No. 18-16145 (Mar. 23, 2022)

United States v. Rojo, No. 20-15708 (Oct. 1, 2020) (order

granting certificate of appealability)

United States v. Rojo, No. 20-15708 (Mar. 23, 2022)

United States District Court (Nev.):

United States v. Espinoza-Gonzalez, No. 2:12-cr-217 (Feb. 19,

2013) (judgment)

United States v. Espinoza-Gonzalez, No. 2:12-cr-217 (Apr. 6,

2017) (order denying motion to vacate)

United States v. Figueroa, No. 2:11-cr-91 (Aug. 28, 2012)

(judgment)

United States v. Figueroa, No. 2:11-cr-91 (May 23, 2018)

(order denying motion to vacate)

United States v. Goldstein, No. 2:10-cr-525 (Sept. 29, 2014)

(judgment)

United States v. Goldstein, No. 2:10-cr-525 (May 17, 2017)

(order denying motion to vacate)

(II)

United States v. Juarez, No. 2:11-cr-91 (June 19, 2012)

(judgment)

United States v. Juarez, No. 2:11-cr-91 (May 23, 2018) (order

denying motion to vacate)

United States v.

(judgment)

Rojo,

No.

2:12-cr-216

(Dec.

21,

2012)

United States v. Rojo, No. 2:12-cr-216 (Feb. 18, 2020) (order

denying motion to vacate)

(III)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 21-8201

JUDEL ESPINOZA-GONZALEZ, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINIONS BELOW

The opinions of the court of appeals (Pet. App. 1a-2a, 27a28a, 52a-53a, 72a-73a, 95a-96a) are not published in the Federal

Reporter but are reprinted at 2022 WL 848038 (petitioner Judel

Espinoza-Gonzalez); 2022 WL 861035 (petitioner Jose Figueroa);

2022

WL

861040

(petitioner

Frank

Goldstein);

2022

WL

861032

(petitioner Raymond Juarez); and 2022 WL 861039 (petitioner Jorge

Rojo). The orders of the district court denying motions for relief

under 28 U.S.C. 2255 in Espinoza-Gonzalez’s, Goldstein’s, and

Rojo’s cases (Pet. App. 5a-11a, 54a-58a, 99a-104a) are reprinted,

respectively, at 2017 WL 1347673, 2017 WL 2174949, and 2020 WL

2

821026; the orders of the district court denying motions for relief

under 28 U.S.C. 2255 in Figueroa’s and Juarez’s cases (Pet. App.

31a-36a, 76a-81a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered in EspinozaGonzalez’s case on March 22, 2022, and in Figueroa’s, Goldstein’s,

Juarez’s, and Rojo’s cases on March 23, 2022.

The petition for a

writ of certiorari was filed on June 17, 2022.

The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following guilty pleas pursuant to plea agreements in the

United

States

District

Court

for

the

District

of

Nevada,

petitioners were each convicted of carrying, using, brandishing,

discharging, or possessing a firearm during, in relation to, or in

furtherance of a crime of violence, in violation of 18 U.S.C.

924(c)(1), and other offenses.

The district court sentenced

petitioner Espinoza-Gonzalez to 181 months of imprisonment, to be

followed by five years of supervised release (Espinoza-Gonzalez

Judgment 3-4); petitioner Figueroa to 300 months of imprisonment,

to be followed by five years of supervised release (Figueroa

Judgment 2-3); petitioner Goldstein to 96 months of imprisonment,

to be followed by five years of supervised release (Goldstein

Judgment 2-3); petitioner Juarez to 230 months of imprisonment, to

be followed by five years of supervised release (Juarez Judgment

2-3); and petitioner Rojo to 181 months of imprisonment, to be

3

followed by five years of supervised release (Rojo Judgment 3-4).

Petitioners subsequently filed motions for postconviction relief

under 28 U.S.C. 2255.

(Pet.

App.

5a-11a,

The district court denied those motions

31a-36a,

54a-58a,

76a-81a,

99a-104a),

and

petitioners each obtained a certificate of appealability (COA),

either from the district court or the court of appeals (id. at 3a4a, 29a-30a, 58a, 74a-75a, 97a).

The court of appeals affirmed

the

of

district

court’s

postconviction relief.

denials

petitioners’

motions

for

Id. at 1a-2a, 27a-28a, 52a-53a, 72a-73a,

95a-96a.

1.

and

a.

robbed

Petitioners Espinoza-Gonzalez and Rojo kidnapped

a

drug

courier

at

gunpoint.

Espinoza-Gonzalez

Presentence Investigation Report (PSR) 6-8; Rojo PSR 6-7.

They

installed emergency lights and sirens in their car to trick the

drug courier into believing that the car was an unmarked police

vehicle.

Espinoza-Gonzalez PSR 7-8; Rojo PSR 5-6.

They then

stopped the drug courier in traffic, removed him from his car at

gunpoint,

placed

him

in

restraints,

carrying, and held him for ransom.

stole

the

drugs

he

was

Espinoza-Gonzalez PSR 7-8;

Rojo PSR 6-7.

After waiving indictment and being charged by information in

the District of Nevada, petitioners Espinoza-Gonzalez and Rojo

pleaded

guilty

to

charges

of

conspiring

to

commit

Hobbs

Act

robbery, in violation of 18 U.S.C. 1951; Hobbs Act robbery (or

aiding and abetting Hobbs Act robbery), in violation of 18 U.S.C.

4

1951 and 2; brandishing a firearm during and in relation to a crime

of

violence

(Hobbs

924(c)(1)(A)(ii)

Act

and

robbery),

2;

aiding

in

and

violation

abetting

of

18

U.S.C.

kidnapping,

in

violation of 18 U.S.C. 1201 and 2; and conspiring to possess with

intent to distribute 100 grams or more of heroin, in violation of

21 U.S.C. 841(a)(1), (b)(1)(B)(i), and 846.

See Pet. App. 13a,

106a. In their plea agreements, Espinoza-Gonzalez and Rojo waived,

among other rights, “the right to bring any collateral challenges,

including any claims under 28 U.S.C. § 2255, to [their] conviction,

sentence and the procedure by which the court adjudicated guilt

and imposed sentence, except non-waivable claims of ineffective

assistance of counsel.”

Id. at 18a; see id. at 112a.

The district

court sentenced Espinoza-Gonzalez and Rojo each to concurrent

terms of 97 months of imprisonment on the non-Section 924(c)

counts,

and

a

mandatory

consecutive

term

of

84

months

of

imprisonment on the Section 924(c) count, to be followed by five

years of supervised release.

Espinoza-Gonzalez Judgment 3-4; Rojo

Judgment 3-4.

b.

Petitioners

convenience stores.

Figueroa

and

Juarez

robbed

several

Figueroa PSR 5-6; Juarez PSR 5-7.

During

each robbery, Figueroa and Juarez brandished a firearm; during one

of them, Figueroa shot a store clerk in the abdomen.

Ibid.

After indictment by a federal grand jury in the District of

Nevada, petitioners Figueroa and Juarez each pleaded guilty to

charges of conspiring to commit Hobbs Act robbery, in violation of

5

18 U.S.C. 1951; six and four counts, respectively, of Hobbs Act

robbery (or aiding and abetting Hobbs Act robbery), in violation

of 18 U.S.C. 1951 and 2; and discharging a firearm during a crime

of

violence

(Hobbs

Act

robbery),

924(c)(1)(A)(iii) and 2.

in

violation

Pet. App. 38a, 83a.

of

18

U.S.C.

In their plea

agreements, Figueroa and Juarez waived, among other rights, “the

right to bring any collateral challenges, including any claims

under 28 U.S.C. § 2255, to [their] conviction, sentence and the

procedure

by

which

the

court

adjudicated

guilt

and

imposed

sentence, except non-waivable claims of ineffective assistance of

counsel.” Id. at 44a; see id. at 88a. The district court sentenced

Figueroa to concurrent terms of 180 months of imprisonment on the

non-Section 924(c) counts, and a mandatory consecutive term of 120

months of imprisonment on the Section 924(c) count, to be followed

by five years of supervised release.

court sentenced

Juarez

to

Figueroa Judgment 2-3.

concurrent

terms

of

110

The

months

of

imprisonment on the non-Section 924(c) counts, and a mandatory

consecutive term of 120 months of imprisonment on the Section

924(c) count, to be followed by five years of supervised release.

Juarez Judgment 2-3.

c.

Petitioner

Goldstein

approached

an

SUV

at

an

ATM,

pointed a gun at the driver, and ordered the driver to get out.

Pet. App. 62a.

Goldstein then drove the SUV to a pharmacy,

attempted to rob the pharmacy at gunpoint, fled the pharmacy

6

following a skirmish with a pharmacist, and was apprehended after

a police chase.

Id. at 62a-63a; see id. at 54a.

Following indictment by a federal grand jury in the District

of Nevada, petitioner Goldstein pleaded guilty to charges of

carjacking, in violation of 18 U.S.C. 2119; Hobbs Act robbery, in

violation of 18 U.S.C. 1951; and using and carrying a firearm

during and in relation to a crime of violence (Hobbs Act robbery),

in violation of 18 U.S.C. 924(c)(1)(A)(i).

Pet. App. 60a.

In his

plea agreement, Goldstein waived, among other rights, “the right

to bring any collateral challenges, including any claims under 28

U.S.C. § 2255, to his conviction, sentence and the procedure by

which the court adjudicated guilt and imposed sentence, except

non-waivable claims of ineffective assistance of counsel.”

70a.

Id. at

The district court sentenced him to concurrent terms of 36

months of imprisonment on the non-Section 924(c) counts, and a

mandatory consecutive term of 60 months of imprisonment on the

Section 924(c) count, to be followed by five years of supervised

release.

2.

Goldstein Judgment 2-3.

Petitioners

moved

to

vacate

their

Section

924(c)

convictions under 28 U.S.C. 2255, arguing that Hobbs Act robbery

-- the predicate offense on which their Section 924(c) convictions

rested -- is not a crime of violence.

55a-56a, 77a-78a, 102a-103a.

See Pet. App. 7a, 32a-33a,

Section 924(c)(3) defines “crime of

violence” as a felony offense that either “has as an element the

use, attempted use, or threatened use of physical force against

7

the person or property of another,” 18 U.S.C. 924(c)(3)(A), or,

“by its nature, involves a substantial risk that physical force

against the person or property of another may be used in the course

of committing the offense,” 18 U.S.C. 924(c)(3)(B).

Petitioners

asserted that Hobbs Act robbery does not qualify as a crime of

violence under either provision, relying primarily on this Court’s

decision in Johnson v. United States, 576 U.S. 591 (2015), which

held that the “residual clause” of the Armed Career Criminal Act

of 1984, 18 U.S.C. 924(e)(2)(B)(ii), is unconstitutionally vague,

576 U.S. at 596.

See Pet. App. 7a, 32a, 56a, 78a, 100a.

This

Court later held in United States v. Davis, 139 S. Ct. 2319 (2019),

that the crime of violence definition in Section 924(c)(3)(B) is

unconstitutionally vague as well.

Id. at 2336.

The district court denied petitioners’ Section 2255 motions.

Pet. App. 11a, 35a, 57a, 80a, 103a.

In each case, the court found

that Hobbs Act robbery is a crime of violence under 18 U.S.C.

924(c)(3)(A) because it “has as an element the use, attempted use,

or threatened use of physical force against the person or property

of another.”

Pet. App. 8a-9a, 35a, 56a-57a, 80a, 102a-103a.

Petitioners each obtained a COA, either from the district

court (Goldstein) or the court of appeals (Espinoza-Goldstein,

Figueroa, Juarez, Rojo), on the issue of whether Hobbs Act robbery

is a crime of violence under Section 924(c)(3).

29a, 58a, 74a, 97a.

Pet. App. 3a,

8

3.

The court of appeals affirmed the denial of petitioners’

Section 2255 motions in unanimous, unpublished decisions.

App. 1a-2a, 27a-28a, 52a-53a, 72a-73a, 95a-96a.

Pet.

In each case, the

court determined that the petitioner had “waived” his Section

924(c) claim “by the valid collateral attack waiver in [his] plea

agreement.”

Id. at 2a; see id. at 28a, 52a-53a, 73a, 96a.

And in

each case, the court rejected the petitioner’s reliance on an

“‘illegal sentence’ exception” to enforcing the collateral-attack

waiver, reasoning that such an exception “does not apply where, as

here, the challenge is to the validity of a conviction.”

Id. at

2a (citation omitted); see id. at 28a, 53a, 73a, 96a.

ARGUMENT

Petitioners contend (Pet. 10-15) that the district court

erroneously enforced the collateral-attack waivers in their plea

agreements.

The

court

of

appeals

correctly

determined

that

petitioners validly waived their rights to collaterally attack

their convictions under 18 U.S.C. 924(c), and its unpublished

dispositions do not conflict with any decision of this Court or

another court of appeals.

In any event, this case would be an

unsuitable vehicle for resolving the question presented because

petitioners’ collateral attacks under 18 U.S.C. 2255 lacked merit.

No further review is warranted.

1.

This Court has repeatedly recognized that a defendant

may validly waive constitutional and statutory rights as part of

a plea agreement so long as his waiver is knowing and voluntary.

9

See, e.g., Ricketts v. Adamson, 483 U.S. 1, 9-10 (1987) (waiver of

right to raise double-jeopardy defense); Town of Newton v. Rumery,

480

U.S.

386,

389,

398

(1987)

(waiver

of

right

to

file

constitutional tort action). As a general matter, statutory rights

are

subject

to

waiver

in

the

absence

of

indication” to the contrary from Congress.

Mezzanatto, 513 U.S. 196, 201 (1995).

fundamental

waived.

protections

afforded

by

some

“affirmative

United States v.

Likewise, even the “most

the

Constitution”

may

be

Ibid.

In accord with those principles, the courts of appeals have

uniformly held that a defendant’s voluntary and knowing waiver in

a plea agreement of the right to appeal is enforceable. 1

As the

courts

benefit

of

appeals

have

recognized,

appeal

waivers

defendants by providing them with “an additional bargaining chip

in negotiations with the prosecution.”

257 F.3d 14, 22 (1st Cir. 2001).

United States v. Teeter,

Appeal waivers correspondingly

See United States v. Teeter, 257 F.3d 14, 21-23 (1st

Cir. 2001); United States v. Riggi, 649 F.3d 143, 147-150 (2d Cir.

2011); United States v. Khattak, 273 F.3d 557, 560-562 (3d Cir.

2001); United States v. Marin, 961 F.2d 493, 495-496 (4th Cir.

1992); United States v. Melancon, 972 F.2d 566, 567-568 (5th Cir.

1992) (per curiam); United States v. Toth, 668 F.3d 374, 377-378

(6th Cir. 2012); United States v. Woolley, 123 F.3d 627, 631 (7th

Cir. 1997); United States v. Andis, 333 F.3d 886, 889-890 (8th

Cir.) (en banc), cert. denied, 540 U.S. 997 (2003); United States

v. Navarro-Botello, 912 F.2d 318, 320-322 (9th Cir. 1990), cert.

denied, 503 U.S. 942 (1992); United States v. Hernandez, 134 F.3d

1435, 1437 (10th Cir. 1998); United States v. Bushert, 997 F.2d

1343, 1347-1350 (11th Cir. 1993), cert. denied, 513 U.S. 1051

(1994); United States v. Guillen, 561 F.3d 527, 529-532 (D.C. Cir.

2009).

1

10

benefit the government by enhancing the finality of judgments and

discouraging meritless appeals.

See, e.g., United States v.

Guillen, 561 F.3d 527, 530 (D.C. Cir. 2009); United States v.

Andis, 333 F.3d 886, 889-890 (8th Cir.) (en banc), cert. denied,

540 U.S. 997 (2003); Teeter, 257 F.3d at 22.

Collateral-review

waivers have the same benefits. See, e.g., DeRoo v. United States,

223 F.3d 919, 923 (8th Cir. 2000) (“The ‘chief virtues’ of a plea

agreement

* * *

are promoted by waivers of collateral appeal

rights as much as by waivers of direct appeal rights.

Waivers

preserve the finality of judgments and sentences, and are of value

to the accused to gain concessions from the government.”) (citation

omitted).

These cases illustrate the mutual benefits of appeal and

collateral-attack

waivers.

In

Figueroa’s,

Juarez’s,

and

Goldstein’s cases, the government agreed to dismiss additional

Section

924(c)

charges,

each

consecutive prison sentences.

al.

Indictment

924(c)(1)(A).

2-8;

of

which

carried

mandatory

Pet. App. 38a, 60a, 83a; Juarez et

Goldstein

Indictment

2;

see

18

U.S.C.

And in all five cases, the government stipulated to

base offense levels under the Sentencing Guidelines, agreed that

petitioners were entitled to a three-level reduction in their

offense level for acceptance of responsibility, and promised to

make the motions needed to implement that reduction.

13a-16a, 39a-42a, 64a-66a, 85a-86a, 108a-110a.

Pet. App.

11

2.

The court of appeals correctly enforced petitioners’

agreements not to collaterally attack the result of those bargains.

Pet. App. 1a-2a, 27a-28a, 52a-53a, 72a-73a, 95a-96a.

Petitioners

contend (Pet. 10-12) that collateral-attack waivers cannot be

enforced

against

“jurisdictional

challenges”

Section 2255 motions here raise such challenges.

and

that

their

To support those

contentions, petitioners rely on this Court’s decisions in Class

v. United States, 138 S. Ct. 798 (2018), Blackledge v. Perry, 417

U.S. 21 (1974), and Menna v. New York, 423 U.S. 61 (1975) (per

curiam).

But that reliance is misplaced.

In Class, the defendant entered into a plea agreement that

waived the defendant’s right to appeal certain categories of claims

but “said nothing about the right to raise on direct appeal a claim

that the statute of conviction was unconstitutional.”

at 802.

the

138 S. Ct.

This Court made clear that the defendant’s challenge to

constitutionality

contradict the terms of

of

the

statute

* * *

of

conviction

did

“not

the written plea agreement” and

did “not fall within any of the categories of claims that [the

defendant’s] plea agreement forbids him to raise on direct appeal.”

Id. at 804-805.

The Court held that, in the absence of such an

express waiver, the defendant’s “guilty plea by itself” did not

bar him from “challenging the constitutionality of the statute of

conviction on direct appeal.”

Id. at 803.

Nothing in Class calls

into question a defendant’s ability to expressly waive his right

to collaterally attack his conviction -- including based on claims

12

that his conduct no longer constitutes a federal offense -- where

the waiver is otherwise knowing and voluntary.

This Court’s decisions in Blackledge and Menna did not involve

express appeal or collateral-attack waivers at all.

The Court

simply held that guilty pleas alone do not automatically waive

certain categories of claims implicating “the right not to be haled

into court.”

62.

Blackledge, 417 U.S. at 30; see Menna, 423 U.S. at

Those cases therefore “do not address express waivers of

appeal and collateral-attack rights,” which are “enforceable even

against a so-called ‘jurisdictional’ challenge.”

Oliver v. United

States,

see

951

F.3d

841,

845

(7th

Cir.

2020);

id.

at

847

(enforcing collateral-attack waiver to bar Section 2255 challenge

to Section 924(c) conviction). 2 Nor can petitioners even show that

statutory claims like theirs -- which assert that Hobbs Act robbery

does not satisfy the “crime of violence” definition in 18 U.S.C.

924(c)(3)(A) -- are the sorts of claims that would be preserved

even in a case involving an unconditional plea.

See Grzegorczyk

v. United States, 142 S. Ct. 2580, 2580 (2022) (statement of

Kavanaugh, J., respecting denial of certiorari) (explaining that

court

of

appeals

“correctly

concluded

that

the

defendant’s

unconditional guilty plea precluded any argument based on

* * *

new caselaw”); id. at 2582 (Sotomayor, J., dissenting) (describing

Petitioners’ reliance (Pet. 10) on United States v. St.

Hubert, 909 F.3d 335 (11th Cir. 2018), cert. denied, 139 S. Ct.

1394 (2019), is misplaced for the same reason.

See id. at 344

(holding that petitioner did not waive appeal right merely “by

pleading guilty”).

2

13

defendant’s

claim

that

crime

did

not

qualify

under

Section

924(c)(3)(A)).

Petitioners also suggest (Pet. 12-13) that their claims fall

within a purported exception to collateral-attack waivers for

“illegal conviction[s].”

As an initial matter, that suggestion

runs counter to the plain language of petitioners’ plea agreements.

Because plea agreements are “essentially contracts,” Puckett v.

United

States,

556

U.S.

129,

137

(2009),

courts

begin

their

analysis of a plea agreement by “examin[ing] first the text of the

contract,” United States v. Gebbie, 294 F.3d 540, 545 (3d Cir.

2002).

The

agreements

in

these

cases

expressly

state

that

petitioners waived “the right to bring any collateral challenges,

including any claims under 28 U.S.C. § 2255, to [their] conviction,

sentence and the procedure by which the court adjudicated guilt

and imposed sentence, except non-waivable claims of ineffective

assistance of counsel.”

(emphasis added).

Pet. App. 18a, 44a, 70a, 88a, 112a

That waiver squarely encompasses petitioners’

claim that Hobbs Act robbery does not qualify as a crime of

violence under 18 U.S.C. 924(c)(3).

In any event, while the Ninth Circuit has articulated an

exception to appeal and collateral-attack waivers for illegal

sentences, see United States v. Torres, 828 F.3d 1113, 1124-1125

(2016), the court has properly recognized that no such exception

applies to illegal convictions.

the

control

of

the

parties

Whereas “the sentence is beyond

and

their

plea

agreement,”

such

14

“uncertainty does not exist for convictions,” the contours of which

“are fully known when the defendant pleads guilty and waives his

appellate rights.”

United States v. Goodall, 21 F.4th 555, 563

(9th Cir. 2021), cert. denied, 142 S. Ct. 2666 (2022).

there

always

remains

a

chance

the

law

could

“Although

change

in

the

defendant’s favor, the defendant knowingly and voluntarily assumes

that risk because he receives a presumably favorable deal under

existing law.”

Id. at 563-564; see Brady v. United States, 397

U.S. 742, 757 (1970) (“[A] voluntary plea of guilty intelligently

made in the light of the then applicable law does not become

vulnerable because later judicial decisions indicate that the plea

rested on a faulty premise.”).

Petitioners’ collateral-attack

waivers thus permissibly bar their Section 2255 motions claiming

that their Section 924(c) convictions are “illegal.”

3.

Petitioners

err

in

asserting

(Pet.

Pet. 12. 3

12-13)

that

the

decisions below conflict with decisions from the Second, Sixth,

and Tenth Circuits.

The decisions below do not conflict with the Second Circuit’s

decision in United States v. Borden, 16 F.4th 351 (2021).

There,

the government had “consented to [the defendant’s] request to

Petitioners briefly request that the Court “grant,

vacate, and remand for consideration of the miscarriage of justice

exception to enforcing the waiver in Petitioners’ cases.” Pet.

15. But the applicability of that exception was not pressed to or

passed upon by the court of appeals in any of petitioners’ cases.

Nor would the court have recognized such an exception had

petitioners argued for it. See Oliver, 951 F.3d at 847 (rejecting

similar argument).

3

15

vacate [his] § 924(c) conviction notwithstanding the existence of

a valid appeal waiver that purported to foreclose his request.”

Id. at 355.

The court recognized that the government “could have

sought to enforce the waiver provision” but opted not to do so.

Id. at 355 n.1; see Wood v. Milyard, 566 U.S. 463, 474 (2012)

(recognizing that government may waive reliance on procedural

defense).

different

And the court enforced an appeal waiver relating to a

issue

where

the

government

Borden, 16 F.4th at 355-356.

had

sought

enforcement.

Because the government here has

sought to enforce petitioners’ collateral-attack waivers rather

than consenting to vacatur of their Section 924(c) convictions,

the Ninth Circuit’s decisions in these cases are consistent with

Borden.

The decisions below are similarly consistent with those of

the Sixth Circuit.

In Portis v. United States, 33 F.4th 331

(2022), the Sixth Circuit -- like the Ninth Circuit here -enforced collateral-attack waivers that barred defendants’ Section

2255 motions seeking vacatur of their Section 924(c) convictions

following this Court’s decision in Davis.

Id. at 334-339.

The

Sixth Circuit explained that “[t]he principle that future changes

in law do not vitiate collateral-challenge waivers is mainstream,”

with “[a]ll circuits

bargaining law.”

* * *

follow[ing] this principle of plea-

Id. at 335-336.

The earlier Sixth Circuit

decisions upon which petitioners rely (Pet. 13) are inapposite.

United States v. McBride, 826 F.3d 293, 294-295 (6th Cir. 2016),

16

cert. denied, 137 S. Ct. 830 (2017), did not involve an express

appeal waiver or collateral-attack waiver, see id. at 294-295, and

United States v. Caruthers, 458 F.3d 459 (6th Cir.), cert. denied,

549 U.S. 1088 (2006), adopted an exception to appeal waivers for

illegal sentences but did not address whether any such exception

would

go

beyond

the

Ninth

Circuit’s

to

allow

challenges

to

convictions, see id. at 471-472.

Nor have petitioners identified any conflict between the

Tenth and Ninth Circuits.

The Tenth Circuit’s decision in United

States v. Shipp, 589 F.3d 1084 (2009), did not involve a plea

agreement at all. Rather, the court simply concluded that Chambers

v. United States, 555 U.S. 122 (2009), applied retroactively on

collateral review.

Shipp, 589 F.3d at 1091.

Finally, while

petitioners assert (Pet. 13) that the decisions below conflict

with

the

Ninth

Circuit’s

conflict

would

not

“own

warrant

precedent,”

this

Court’s

any

intra-circuit

intervention.

See

Wisniewski v. United States, 353 U.S. 901, 902 (1957) (per curiam).

4.

In any event, this case would be an unsuitable vehicle

for resolving the question presented because petitioners would not

be entitled to relief even in the absence of their collateralattack waivers.

Petitioners’ convictions for Hobbs Act robbery

qualify as crimes of violence under Section 924(c)(3)(A).

As noted, Section 924(c)(3)(A) defines “crime of violence” to

include a felony that “has as an element the use, attempted use,

or threatened use of physical force against the person or property

17

of another.”

18 U.S.C. 924(c)(3)(A).

Hobbs Act robbery requires

the “unlawful taking or obtaining of personal property” from

another “by means of actual or threatened force, or violence, or

fear of injury, immediate or future, to his person or property.”

18 U.S.C. 1951(b)(1).

Those requirements match the definition of

a crime of violence in Section 924(c)(3)(A).

See, e.g., United

States v. Hill, 890 F.3d 51, 57 (2d Cir. 2018) (observing that the

elements of Hobbs Act robbery “would appear, self-evidently, to

satisfy” the definition of “crime of violence”), cert. denied, 139

S. Ct. 844 (2019).

Every court of appeals to have considered the issue has

recognized

robbery. 4

that

Section

924(c)(3)(A)

encompasses

Hobbs

Act

And this Court has consistently denied petitions for a

writ of certiorari challenging the circuits’ consensus on the

application of Section 924(c)(3)(A) to Hobbs Act robbery. 5

See, e.g., United States v. García-Ortiz, 904 F.3d 102,

109 (1st Cir. 2018), cert. denied, 139 S. Ct. 1208 (2019); Hill,

890 F.3d at 56-60 (2d Cir.); United States v. Scott, 14 F.4th 190,

195 n.1 (3d Cir. 2021); United States v. Mathis, 932 F.3d 242,

265-266 (4th Cir.), cert. denied, 140 S. Ct. 639, and 140 S. Ct.

640 (2019); United States v. Buck, 847 F.3d 267, 274-275 (5th

Cir.), cert. denied, 137 S. Ct. 2231, and 138 S. Ct. 149 (2017);

United States v. Richardson, 948 F.3d 733, 741-742 (6th Cir.),

cert. denied, 141 S. Ct. 344 (2020); United States v. Rivera, 847

F.3d 847, 848-849 (7th Cir.), cert. denied, 137 S. Ct. 2228 (2017);

Diaz v. United States, 863 F.3d 781, 783 (8th Cir. 2017); United

States v. Tuan Ngoc Luong, 965 F.3d 973, 990 (9th Cir. 2020), cert.

denied, 142 S. Ct. 336 (2021); United States v. Melgar-Cabrera,

892 F.3d 1053, 1060-1066 (10th Cir.), cert. denied, 139 S. Ct. 494

(2018); Brown v. United States, 942 F.3d 1069, 1075 (11th Cir.

2019) (per curiam).

5

See, e.g., Felder v. United States, 142 S. Ct. 597 (2021)

(No. 21-5461); Lavert v. United States, 142 S. Ct. 578 (2021) (No.

4

18

The circuits’ uniform determination that Hobbs Act robbery

categorically requires the use, attempted use, or threatened use

of force is fortified by this Court’s decision in Stokeling v.

United States, 139 S. Ct. 544 (2019), which identified common-law

robbery as the “quintessential” example of a crime that requires

the

use

or

threatened

use

of

physical

(discussing

definition

of

“violent

force.

felony”

Id.

in

18

at

551

U.S.C.

21-5057); Ross v. United States, 142 S. Ct. 493 (2021) (No. 215664); Hall v. United States, 142 S. Ct. 492 (2021) (No. 21-5644);

Moore v. United States, 142 S. Ct. 252 (2021) (No. 21-5066); Copes

v. United States, 142 S. Ct. 247 (2021) (No. 21-5028); Council v.

United States, 142 S. Ct. 243 (2021) (No. 21-5013); Fields v.

United States, 141 S. Ct. 2828 (2021) (No. 20-7413); Thomas v.

United States, 141 S. Ct. 2827 (2021) (No. 20-7382); Walker v.

United States, 141 S. Ct. 2823 (2021) (No. 20-7183); Usher v.

United States, 141 S. Ct. 1399 (2021); Steward v. United States,

141 S. Ct. 167 (2020) (No. 19-8043); Terry v. United States, 141

S. Ct. 114 (2020) (No. 19-1282); Hamilton v. United States, 140 S.

Ct. 2754 (2020) (No. 19-8188); Diaz-Cestary v. United States, 140

S. Ct. 1236 (2020) (No. 19-7334); Walker v. United States, 140 S.

Ct. 979 (2020) (No. 19-7072); Tyler v. United States, 140 S. Ct.

819 (2020) (No. 19-6850); Hilario-Bello v. United States, 140 S.

Ct. 473 (2019) (No. 19-5172); Nelson v. United States, 140 S. Ct.

469 (2019) (No. 19-5010); Apodaca v. United States, 140 S Ct. 432

(2019) (No. 19-5956); Young v. United States, 140 S. Ct. 262 (2019)

(No. 19-5061); Durham v. United States, 140 S. Ct. 259 (2019) (No.

19-5124); Munoz v. United States, 140 S. Ct. 182 (2019) (No. 189725); Lindsay v. United States, 140 S. Ct. 155 (2019) (No. 189064); Hill v. United States, 140 S. Ct. 54 (2019) (No. 18-8642);

Greer v. United States, 139 S. Ct. 2667 (2019) (No. 18-8292); Rojas

v. United States, 139 S. Ct. 1324 (2019) (No. 18-6914); Foster v.

United States, 139 S. Ct. 789 (2019) (No. 18-5655); Desilien v.

United States, 139 S. Ct. 413 (2018) (No. 17-9377); Ragland v.

United States, 138 S. Ct. 1987 (2018) (No. 17-7248); Robinson v.

United States, 138 S. Ct. 1986 (2018) (No. 17-6927); Chandler v.

United States, 138 S. Ct. 1281 (2018) (No. 17-6415); Middleton v.

United States, 138 S. Ct. 1280 (2018) (No. 17-6343); Jackson v.

United States, 138 S. Ct. 977 (2018) (No. 17-6247); Garcia v.

United States, 138 S. Ct. 641 (2018) (No. 17-5704).

19

924(e)(2)(B)(i)).

The elements of common-law robbery track the

elements of Hobbs Act robbery in relevant respects.

See id. at

550 (observing that common-law robbery was an “unlawful taking” by

“force or violence,” meaning force sufficient “‘to overcome the

resistance encountered’”) (citation omitted). 6

Some (but not all) petitioners now contend (Pet. 3-5) that

the crime of violence underlying their Section 924(c) convictions

was

“aiding

and

abetting

Hobbs

Act

robbery,”

as

opposed

to

committing Hobbs Act robbery as a principal. 7 Petitioners’ Section

2255 motions, however, characterized the offense underlying their

Section 924(c) convictions as “Hobbs Act robbery” or “interference

with commerce by robbery,” without advancing any argument specific

to aiding and abetting Hobbs Act robbery.

See Espinoza-Gonzalez,

D. Ct. Docs. 84 at 3-4, 85 at 3-4, 13-22; Figueroa, D. Ct. Docs.

80 at 3-4, 93 at 13-22; Juarez, D. Ct. Docs. 82 at 3-4, 92 at 1222; Rojo, D. Ct. Docs. 87 at 3-4, 88 at 13-22.

And in denying

petitioners’ Section 2255 motions, the district court did not

discuss, much less resolve, any aiding-and-abetting theory.

Pet.

App. 5a-11a, 31a-36a, 54a-58a, 76a-81a, 99a-104a.

This Court’s decision in United States v. Taylor, 142 S.

Ct. 2015 (2022), is not to the contrary. While the Court there

held that attempted Hobbs Act robbery is not a crime of violence

under Section 924(c)(3)(A), it expressly distinguished “completed

Hobbs Act robbery.” Taylor, 142 S. Ct. at 2020.

7

Petitioner Goldstein, who committed his crime alone,

does not contend that he was convicted of aiding and abetting Hobbs

Act robbery. See Pet. App. 60a.

6

20

That theory, moreover, lacks merit.

Petitioners’ Hobbs Act

robbery offenses qualify as crimes of violence under Section

924(c)(3)(A) regardless of whether petitioners were liable for

those offenses as a principal or as an aider and abettor.

When a

defendant is charged with an offense under an aiding-and-abetting

theory, the government must prove that either the defendant or one

of his accomplices committed each of the elements of the underlying

offense and that the defendant was “punishable as a principal” for

that offense because he took active and intentional steps to

facilitate the crime.

18 U.S.C. 2(a); see Rosemond v. United

States, 572 U.S. 65, 70-74 & n.6 (2014).

Because the government

must prove that the crime occurred, if the substantive crime “has

as an element the use, attempted use, or threatened use of physical

force

against

the

person

or

property

of

another,”

18

U.S.C.

924(c)(3)(A), then a conviction for aiding and abetting that crime

necessarily includes proof of that force element.

Indeed, every

court of appeals to have considered the question has determined

that aiding and abetting a crime that has a requisite element of

the use of force under Section 924(c)(3)(A) and similar provisions

qualifies as a crime of violence. 8

And this Court has consistently

See, e.g., García-Ortiz, 904 F.3d at 109 (1st Cir.)

(aiding and abetting Hobbs Act robbery); United States v. Caldwell,

7 F.4th 191, 212-213 (4th Cir. 2021) (aiding and abetting bank

robbery); Richardson, 948 F.3d at 741-742 (6th Cir.) (aiding and

abetting Hobbs Act robbery); United States v. Brown, 973 F.3d 667,

697 (7th Cir. 2020) (aiding and abetting Hobbs Act robbery), cert.

denied, 141 S. Ct. 1253 (2021), 142 S. Ct. 243, 142 S. Ct. 245,

and 142 S. Ct. 248 (2021), and 142 S. Ct. 932 (2022); Kidd v.

8

21

declined to review petitions for a writ of certiorari contending

that aiding and abetting Hobbs Act robbery is not a crime of

violence under Section 924(c)(3)(A). 9

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

KENNETH A. POLITE, JR.

Assistant Attorney General

FRANCESCO VALENTINI

Attorney

NOVEMBER 2022

United States, 929 F.3d 578, 581 (8th Cir. 2019) (per curiam)

(aiding

and

abetting

armed

robbery

involving

controlled

substances), cert denied, 140 S. Ct. 894 (2020); Young v. United

States, 22 F.4th 1115, 1123 (9th Cir. 2022) (aiding and abetting

armed bank robbery); United States v. Deiter, 890 F.3d 1203, 12141216 (10th Cir.) (aiding and abetting bank robbery), cert. denied,

139 S. Ct. 647 (2018); In re Colon, 826 F.3d 1301, 1305 (11th Cir.

2016) (aiding and abetting Hobbs Act robbery); United States v.

McGill, 815 F.3d 846, 944 (D.C. Cir. 2016) (per curiam) (aiding

and abetting murder), cert. denied, 138 S. Ct. 57, and 138 S. Ct.

58 (2017).

9

See, e.g., Hall v. United States, 142 S. Ct. 492 (2021)

(No. 21-5644); Gordon v. United States, 142 S. Ct. 491 (2021) (No.

21-5589); Council v. United States, 142 S. Ct. 243 (2021) (No. 215013); Stallworth v. United States, 141 S. Ct. 2524 (2021) (No.

20-6563); Deiter v. United States, 139 S. Ct. 647 (2018) (No. 186464); Ragland v. United States, 138 S. Ct. 1987 (2018) (No. 177248); Stephens v. United States, 138 S. Ct. 502 (2017) (No. 175186).