Reply Brief — Judel Espinoza-Gonzalez, Petitioner v. United States
Supreme Court briefNov 21, 2022
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No. 21-8201
In The Supreme Court 0f The United States
Judel Espinoza-Gonzalez, Jose Figueroa, Frank Goldstein,
Raymond Juarez, and Jorge Rojo,
v.
Petitioners,
United States of America,
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit
Joint Reply Brief in Support of Petition for Writ of Certiorari
RENE L. VALLADARES
Federal Public Defender
*Wendi L. Overmyer
Cristen C. Thayer
Lauren Torre
Assistant Federal Public Defenders
Office of the Federal Public Defender
411 E. Bonneville, Ste. 100
Las Vegas, Nevada 89101
(702) 388-6577
Wendi_Overmyer@fd.org
Cristen_Thayer@fd.org
Lauren_Torre@fd.org
*Lead Counsel for Petitioners
Dated: November 21, 2022
Table of Contents
Table of Contents ........................................................................................................... ii
Table of Authorities ...................................................................................................... iii
Reply Brief for Petitioners ............................................................................................. 1
I. Petitioners raise a jurisdictional claim that is not subject to waiver. .............. 1
II.Goodall conflicts with other Circuit holdings. ................................................... 5
II.Petitioners are entitled to relief because neither aiding and abetting nor
completed Hobbs Act robbery are crimes of violence......................................... 8
Conclusion .................................................................................................................... 14
ii
Table of Authorities
Federal Cases
Blackledge v. Perry,
417 U.S. 21 (1974) ............................................................................................... 2, 3
Borden v. United States,
141 S. Ct. 1817 (2021) .................................................................................... passim
Boston v. United States,
939 F.3d 1266 (11th Cir. 2019) .................................................................... 9-10, 10
Class v. United States,
138 S. Ct. 798 (2018) ....................................................................................... 1, 2, 3
Deroo v. United States,
223 F.3d 919 (8th Cir. 2000) ............................................................................... 4, 5
In re Colon,
826 F.3d 1301 (11th Cir. 2016) ............................................................................. 10
Johnson v. United States,
576 U.S. 591 (2015) ................................................................................................. 4
Menna v. New York,
423 U.S. 61 (1975) (per curiam) .......................................................................... 2, 3
Newton v. Rumery,
480 U.S. 386 (1987) ................................................................................................. 4
Portis v. United States,
33 F.4th 331 (6th Cir. 2022) ................................................................................... 6
Ricketts v. Adamson,
483 U.S. 1 (1987) ..................................................................................................... 4
Rosemond v. United States,
572 U.S. 65 (2014) ................................................................................................... 9
Stokeling v. United States,
139 S. Ct. 544 (2019) ............................................................................................... 8
iii
United States v. Andis,
333 F.3d 886 (8th Cir. 2003) (en banc) ............................................................... 4, 5
United States v. Borden,
16 F.4th 351 (2d Cir. 2021) ..................................................................................... 7
United States v. Bushert,
997 F.2d 1343 (11th Cir. 1993) ............................................................................... 4
United States v. Caruthers,
458 F.3d 459 (6th Cir. 2006) ................................................................................... 6
United States v. Davis,
139 S. Ct. 2319 (2019) ......................................................................................... 1, 2
United States v. Du Bo,
186 F.3d 1177 (9th Cir. 1999) ............................................................................... 12
United States v. Goodall,
21 F.4th 555 (9th Cir. 2021) ................................................................................... 2
United States v. Guillen,
561 F.3d 527 (D.C. Cir. 2009) ............................................................................. 4, 5
United States v. Henry,
984 F.3d 1343 (9th Cir. 2021) ............................................................................... 12
United States v. Hernandez,
134 F.3d 1435 (10th Cir. 1998) ............................................................................... 4
United States v. Khattak,
273 F.3d 557 (3d Cir. 2001) .................................................................................... 4
United States v. Loumoli,
13 F.4th 1006 (10th Cir. 2021) ............................................................................... 8
United States v. Marin,
961 F.2d 493 (4th Cir. 1992) ................................................................................... 4
United States v. McBride,
826 F.3d 293 (6th Cir. 2016) ................................................................................... 6
United States v. Melancon,
972 F.2d 566 (5th Cir. 1992) (per curiam) ............................................................. 4
iv
United States v. Mezzanatto,
513 U.S. 196 (1995) ............................................................................................. 4, 5
United States v. Navarro-Botello,
912 F.2d 318 (9th Cir. 1990) ................................................................................... 4
United States v. Riggi,
649 F.3d 143 (2d Cir. 2011) .................................................................................... 4
United States v. Shipp,
589 F.3d 1084 (10th Cir. 2009) ............................................................................... 7
United States v. Spatig,
870 F.3d 1079 (9th Cir. 2017) ............................................................................... 12
United States v. Taylor,
142 S. Ct. 2015 (2022) ............................................................................................. 9
United States v. Teeter,
257 F.3d 14 (1st Cir. 2001) ................................................................................. 4, 5
United States v. Thornsbury,
670 F.3d 532 (4th Cir. 2012) ................................................................................... 5
United States v. Torres,
828 F.3d 1113 (9th Cir. 2016) ................................................................................. 5
United States v. Toth,
668 F.3d 374 (6th Cir. 2012) ................................................................................... 4
United States v. Woolley,
123 F.3d 627 (7th Cir. 1997) ................................................................................... 4
Federal Statutes
18 U.S.C. § 2 ............................................................................................................. 8, 9
18 U.S.C. § 924 .................................................................................................... passim
18 U.S.C. § 1951 ............................................................................................................ 8
28 U.S.C. § 2255 ........................................................................................................... 8
v
Reply Brief for Petitioners
I.
Petitioners raise a jurisdictional claim that is not subject to waiver.
At issue is whether a plea agreement’s general collateral-attack waiver can
bar a jurisdictional challenge to a conviction for a non-existent federal offense.
Joint Petition (Pet.) at 10-12. The Ninth Circuit’s holding below, that such
challenges are inherently waived by a general collateral-attack waiver, conflicts
with this Court’s holding in Class v. United States, 138 S. Ct. 798 (2018). Class
held that a defendant cannot inherently waive a constitutional challenge to the
government’s lack of jurisdiction to prosecute. Id. at 804.
Under the government’s argument, Petitioners would not be barred from
challenging the constitutionality of 18 U.S.C. § 924(c) itself, but are barred from
receiving the relief afforded by United States v. Davis, 139 S. Ct. 2319 (2019). which
held the charged conduct is not a § 924(c) offense. Government Brief in Opposition
(Gov. Br.) at 11-12. This Court has rejected such argument. Class clarified that
“where on the face of the record the court had no power to enter the conviction or
impose the sentence” the challenge cannot be inherently waived. Class, 138 S. Ct.
at 804.
To avoid Class, the government argues inconsistently that the Petitioners
“expressly waive[d]” the right to challenge “that [their] conduct no longer
constitutes a federal offense,” and conversely that the Petitioners merely raise a
“statutory claim.” Gov. Br. at 12-13. Neither assertion is correct.
1
First, like Class, the Petitioners’ constitutional claim for prosecution of a nonfederal offense is not expressly waived in the general collateral-attack waiver:
[Petitioners’] challenge does not in any way deny [they] engaged in the
conduct to which [they] admitted. Instead, like the defendants in
Blackledge and Menna, [they] seek to raise a claim which, “judged on
its face” based upon the existing record, would extinguish the
government's power to “constitutionally prosecute” the defendant[s] if
the claim were successful.
Class, 138 S. Ct. at 805 (citing Blackledge v. Perry, 417 U.S. 21 (1974); Menna v.
New York, 423 U.S. 61 (1975) (per curiam)). Because such a claim does “not
contradict the terms of the indictment or the written plea agreement” nor could
“have been ‘cured’ through a new indictment,” it is not inherently waived. Id. As
this Court further explained in Class:
“[T]he claims at issue here do not fall within any of the categories of
claims that Class’ plea agreement[‘s appellate waiver] forbids him to
raise on direct appeal. They challenge the Government’s power to
criminalize Class’ (admitted) conduct. They thereby call into question
the Government's power to constitutionally prosecute him. A guilty
plea does not bar a direct appeal in these circumstances.”
Id. (internal quotations and citations omitted).
Second, the Petitioners’ challenge does not simply ask for relief from new
caselaw that changed a statutory enhancement or sentencing guideline after
conviction “in the defendant’s favor.” Gov. Br. at 14 (quoting United States v.
Goodall, 21 F.4th 555, 563 (9th Cir. 2021), cert. denied, 142 S. Ct. 2666 (2022)).
Rather, this Court holds that Petitioners’ § 924(c) convictions are not federal
offenses because they rely on the void residual clause. Davis, 139 S. Ct. 2319.
Under the Menna-Blackledge doctrine, “a plea of guilty to a charge does not waive a
2
claim that—judged on its face—the charge is one which the [government] may not
constitutionally prosecute.” Class, 138 S. Ct. at 803-04 (quoting Menna, 423 U.S. at
63). Thus, as in Class, “the terms of any plea-agreement provision waiving the
right to appeal or to collaterally attack the sentence” did not “expressly refer to a
waiver of the appeal right” for claims the “court had no power to enter the
conviction or impose the sentence.” Id. at 807.
Despite Class’s discussion of and reliance on Blackledge, 417 U.S. 21, and
Menna, 423 U.S. 61, the government claims these cases do not apply to general
waivers of collateral-attack rights. Gov. Br. at 12. Yet Class reaffirmed the Menna-
Blackledge doctrine by holding a written plea-agreement waiver cannot inherently
waive the right to challenge “the Government’s power to ‘constitutionally prosecute’
him.” Class, 138 S. Ct. at 804-05 (citation omitted).
The government also implies that whether a plea agreement’s appellate
waiver bars review here turns on the particular bargains the parties reached. Gov.
Br. at 10. 1 But there is no dispute that plea agreements generally can benefit the
parties. Rather, the question at hand involves conduct that does not constitute a
1 The government improperly includes alleged facts of the individual cases,
relying on presentence reports rather than the limited facts admitted in the
respective plea agreements. Gov. Br. at 3-6. The crime-of-violence categorical
approach, however, examines only the elements required for a crime of violence
under 18 U.S.C. § 924(c)—how the particular offense was committed makes no
difference. Borden v. United States, 141 S. Ct. 1817, 1822 (2021) (“[T]he facts of a
given case are irrelevant” to categorical analysis. The focus is instead on “whether
the elements of the statute of conviction meet the federal standard.”). Petitioners
thus ask this Court to disregard the government’s insertion of irrelevant facts into
the categorical analysis.
3
§ 924(c) offense and was thus prosecuted without subject-matter jurisdiction. Pet. at
10-11. A particular plea agreement’s benefits do not alter this Court’s precedent
that a jurisdictional claim cannot be waived.
The government cites several cases on an undisputed issue—plea agreement
appellate waivers are permissible sometimes. Gov. Br. at 9-10 and n.1. 2 The
government fails to discuss, however, these cases reiterate that appellate waivers
“are subject to a general exception under which the court of appeals retains
2 The government’s cited cases at Gov. Br. 9-10 and n.1 do not involve
challenges to prosecutions for conduct not constituting a federal offense, and the
cases predate Johnson v. United States, 576 U.S. 591 (2015). See, e.g., United
States v. Mezzanatto, 513 U.S. 196, 201 (1995) (waiver of evidence rule precluding
use of plea statements at trial where defendant withdrew guilty plea); Ricketts v.
Adamson, 483 U.S. 1, 9-10 (1987) (waiver of right to raise double-jeopardy defense
following breach of guilty plea); Newton v. Rumery, 480 U.S. 386, 389, 398 (1987)
(waiver of right to file civil tort action); United States v. Toth, 668 F.3d 374, 377-78
(6th Cir. 2012) (waiver of challenge to denial of motion to withdraw plea); United
States v. Riggi, 649 F.3d 143, 147-50 (2d Cir. 2011) (waiver of challenge to guideline
manual error); United States v. Guillen, 561 F.3d 527, 529-32 (D.C. Cir. 2009)
(waiver of challenge to within-guideline range sentence); United States v. Andis,
333 F.3d 886, 889-90 (8th Cir. 2003) (en banc) (waiver of challenge to supervision
conditions); United States v. Teeter, 257 F.3d 14, 21-23 (1st Cir. 2001) (waiver not
enforceable due to insufficient colloquy); United States v. Khattak, 273 F.3d 557,
560-62 (3d Cir. 2001) (waiver of challenge to downward departure); Deroo v. United
States, 223 F.3d 919, 923 (8th Cir. 2000) (counsel was not ineffective for plea
agreement appellate waiver where state convictions barred federal possession of
ammunition); United States v. Hernandez, 134 F.3d 1435, 1437 (10th Cir. 1998)
(waiver of challenge to two-level sentencing enhancement); United States v.
Woolley, 123 F.3d 627, 631 (7th Cir. 1997) (waiver of challenge to upward
departure); United States v. Bushert, 997 F.2d 1343, 1347-50 (11th Cir. 1993)
(waiver of challenge to government’s failure to move for substantial assistance
reduction); United States v. Marin, 961 F.2d 493, 495-96 (4th Cir. 1992) (waiver of
challenge to upward departure); United States v. Melancon, 972 F.2d 566, 567-68
(5th Cir. 1992) (per curiam) (waiver of challenge to sentencing range); United States
v. Navarro-Botello, 912 F.2d 318, 320-22 (9th Cir. 1990) (waiver of challenge to
high-end sentence).
4
inherent power to relieve the defendant of the waiver.” United States v. Teeter, 257
F.3d 14, 25-26 (1st Cir. 2001). For example, a defendant may not waive rights that
“irreparably discredit[ ] the federal courts.” United States v. Mezzanatto, 513 U.S.
196, 204 (1995) (internal quotations and citations omitted). A waiver may also be
set aside where a miscarriage of justice would result. See, e.g., United States v.
Guillen, 561 F.3d 527, 531 (D.C. Cir. 2009); United States v. Andis, 333 F.3d 886,
891 (8th Cir. 2003); Teeter, 257 F.3d at 25. And, most importantly here, appellate
waivers do not bar challenges to illegal, unconstitutional sentences. See, e.g.,
United States v. Torres, 828 F.3d 1113, 1124-25 (9th Cir. 2016); United States v.
Thornsbury, 670 F.3d 532, 539–40 (4th Cir. 2012); Andis, 333 F.3d at 891. The same
limitations for appellate waiver apply in the collateral review context. Deroo v.
United States, 223 F.3d 919, 923 (8th Cir. 2000) (finding appellate waiver of
collateral-attack rights “are not absolute”).
The government’s position precludes enforcement of this Court’s precedent as
to non-waivable issues by placing such power solely within the government’s
discretion. Yet the government’s brief illustrates it has selectively chosen not to
enforce appellate waivers in several challenges to illegal § 924(c) convictions. Gov.
Br. at 14–16. Providing relief from unconstitutional prosecutions rests with the
federal courts—it is not subject to the inconsistent and arbitrary whims of a
government prosecutor. Petitioners, therefore, ask this Court to grant review.
II.
Goodall conflicts with other Circuit holdings.
Petitioners do not err in asserting that the Ninth Circuit’s decisions below
conflict with other Circuit decisions. While the decisions cited in the Petition do not
5
explicitly answer the question before this Court, the principles and holdings support
Petitioners’ argument that challenges to illegal sentences encompass illegal
convictions and that Goodall errantly made a distinction without a difference.
First, Petitioners cite Sixth Circuit case law that recognizes waivers can be
invalid or inapplicable under similar theories. Pet. at 13; United States v. McBride,
826 F.3d 293, 295 (6th Cir. 2016) (reviewing a challenge to defendant’s career
offender designation under Johnson v. United States, 576 U.S. 591 (2015) for plain
error after finding the challenge could not be waived or intentionally relinquished
based on a change in law post-sentence); United States v. Caruthers, 458 F.3d 459,
472 (6th Cir. 2006) (“an appellate waiver does not preclude an appeal asserting that
the statutory-maximum sentence has been exceeded.”). While these cases do not
address an appellate waiver’s impact on an illegal conviction, they found that
challenges to a sentence’s constitutionality could not be waived. And because an
illegal sentence and illegal conviction are inextricably linked these holdings conflict
with Goodall.
While the government cites Portis v. United States, 33 F.4th 331 (6th Cir.
2022), this decision presents the same legal problems as Goodall. There, the Sixth
Circuit held appellate “waivers of the right to bring postconviction challenges
remain enforceable after changes in law.” Portis, 33 F.4th at 335. Portis did not
address the link between sentences and convictions, it instead read the statutory
maximum exception to the plea agreement waiver as referring only to the law at the
time of sentencing. Id. at 337 (“[t]he only fair reading of a ‘statutory maximum’
6
carve-out that comes with a collateral-attack waiver is that it applies only to
sentences that exceed the statutory maximum at the time of the sentence”). The
critical issue here is that an illegal sentence exception to plea agreement waivers
cannot exist alongside a bar of illegal convictions when a sentence and conviction
are bundled together on collateral attack. Thus, the issue is not whether future
changes in the law vitiate collateral challenge waivers as addressed in Portis.
Second, Petitioners cite United States v. Borden, 16 F.4th 351 (2d Cir. 2021)
(recognizing the defendant waived his right to appeal his convictions, but the
government chose not to enforce that waiver as to a § 924(c) conviction based on
conspiracy to commit Hobbs Act robbery), as one example where a court has vacated
§ 924(c) convictions that rest on non-qualifying predicates post-Davis. See Pet. at
13. Petitioners do not argue that Borden addresses whether a waiver provision
should apply to a § 924(c) challenge. Borden is, however, an example of the
government’s selective enforcement of appellate waivers when defendants
collaterally attack § 924(c) convictions and sentences.
Third, Petitioners cited United States v. Shipp, 589 F.3d 1084, 1091 (10th
Cir. 2009), for its holding that a defendant incorrectly sentenced as an armed career
criminal received “a punishment that the law cannot impose upon him . . . his due
process rights were violated . . . result[ing] in a complete miscarriage of justice.”
Based on this holding, the Tenth Circuit understands that collateral relief is
necessary when a predicate offense does not qualify under the categorical approach
and that the “punishment” or sentence is intertwined with the unlawful predicate.
7
However, this holding is contradicted by its more recent rejection of “the
government’s assertion that a collateral challenge to a conviction should be treated
as a challenge to the defendant’s sentence because a successful attack on a
conviction necessarily invalidates the sentence.” United States v. Loumoli, 13 F.4th
1006, 1009–10 (10th Cir. 2021) (the term “sentence” does not include convictions
under 28 U.S.C. § 2255). Thus, the Tenth Circuit, like the Ninth, has made
inconsistent rulings as to the relationship between sentences and convictions in the
§ 2255 context. This Court’s clarification is necessary to address the contradictions
between and within the Circuits as to permissible § 2255 challenges in the Davis
context.
II.
Petitioners are entitled to relief because neither aiding and abetting nor
completed Hobbs Act robbery are crimes of violence.
For a predicate offense to qualify under § 924(c)’s force clause, the offense
must have “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). This
means the offense must necessarily require two elements: (1) violent physical force
capable of causing physical pain or injury to another person or property, Stokeling
v. United States, 139 S. Ct. 544, 554 (2019) (citing Johnson v. United States, 559
U.S. 133, 140 (2010)); and (2) the use of force must be intentional and not merely
reckless or negligent, Borden v. United States, 141 S. Ct. 1817 (2021).
A.
Aiding and Abetting Hobbs Act Robbery
Aiding and abetting Hobbs Act robbery (18 U.S.C. § 1951 and § 2) does not
qualify as a § 924(c) predicate because it does not categorically require, as an
8
element, the intentional use of violent physical force against a person or property of
another.
The government claims that because completed Hobbs Act robbery qualifies
as a crime of violence, it follows that aiding and abetting does too. The government
argues “because [it] must prove that the crime occurred” and “if the substantive
crime” satisfies the force clause then a “conviction for aiding and abetting that
crime necessarily includes proof of that force element.” Gov. Br. at 20. This flawed
categorical analysis fails to differentiate between the statutory elements the
government must prove to convict a defendant of aiding and abetting and the
completed crime.
To establish guilt for aiding and abetting a federal offense under 18 U.S.C. §
2, a defendant need only facilitate commission of the offense—the defendant need
not participate in every element of the offense. Rosemond v. United States, 572
U.S. 65, 73 (2014). And this Court recently held, “[t]he elements clause does not ask
whether the defendant committed a crime of violence or attempted to commit one.
It asks whether the defendant did commit a crime of violence… .” United States v.
Taylor, 142 S. Ct. 2015, 2022 (2022) (emphasis added). Thus, the courts must
consider whether an aider and abettor—not the principal—is required to necessarily
“use” force under its statutory elements.
Several scenarios illustrate aiding and abetting robbery without the use,
attempted use, or threatened use of force. A defendant need not even be present
during the substantive offense to be convicted of aiding and abetting. Boston v.
9
United States, 939 F.3d 1266, 1272 (11th Cir. 2019) (Pryor, J., concurring). Indeed,
“a defendant could aid and abet a robbery without ever using, threatening, or
attempting any force at all,” including: “lending the principal some equipment,
sharing some encouraging words, or driving the principal somewhere.” In re Colon,
826 F.3d 1301, 1306 (11th Cir. 2016) (Martin, J., dissenting); see also Boston, 939
F.3d at 1272 (Pryor, J., concurring) (providing an example of serving as the getaway
driver to principal). Aiding and abetting merely requires the defendant to aid or
abet one element of Hobbs Act robbery, which does not encompass the use,
attempted use, or threatened use of violent physical force against another person.
Thus, aiding and abetting Hobbs Act robbery does not qualify under § 924(c)’s
elements clause.
Further, the elements for aiding and abetting Hobbs Act robbery do not
require the necessary mens rea under the force clause—intent to use physical force
to harm another. The only element of aiding and abetting that mentions mens rea
is the third element—intent to facilitate Hobbs Act robbery. See Ninth Circuit
Manual of Model Criminal Jury Instructions, § 4.1 Aiding and Abetting (Sept.
2022). But this element does not render the offense a crime of violence. The
statutory elements of the predicate offense must require intent to harm another to
satisfy the force clause—meaning there must be a “conscious object (not the mere
recipient) of the force.” Borden, 141 S. Ct. at 1826. It is thus not the resulting
harm that is dispositive, but whether the statute requires the defendant to
specifically intend to harm another. Id. at 1831 n.8. It is insufficient under the
10
elements clause for an offense to merely require intentional performance of a
particular act. Id. at 1826.
Borden narrowed application of § 924(c)’s mandatory penalties by
“demand[ing] that the perpetrator direct his action at, or target, another
individual,” consciously intending harm to another. Borden, 141 S. Ct. at 1825–27.
Someone who does not intend a resulting harm from his conduct and does not “pay
[]sufficient attention to the potential application of force” therefore does “not use[]
force ‘against’ another person in the targeted way that clause requires.” Id. at 1827.
Borden, therefore, limits the severe § 924(c) penalty to “the special danger”
associated with a “small percentage of repeat offenders” who pose “uncommon
danger”—not “ordinary offenders” who engage in dangerous and ill-advised conduct.
Id. at 1822–23, 1830–31, 1834 (cleaned up). Thus, under Borden, the government
cannot bootstrap intent to commit a crime to mean all acts of aiding and abetting
include violent force. 3
Because aiding and abetting Hobbs Act robbery’s elements require neither
violent physical force nor the necessary intent to use physical force to harm another,
this offense is overbroad and does not qualify as a predicate crime of violence under
18 U.S.C. § 924(c).
3 The government’s cited cases, Gov. Br. at 20–21, n.8, finding aiding and
abetting is a crime of violence either pre-date Borden or fail to analyze its holding’s
effect on this accessory offense. The lesser culpability and intent of aiding and
abetting require a separate analysis from the completed offense. See Borden, 141 S.
Ct. at 1823 n.3.
11
B.
Completed Hobbs Act robbery
Completed Hobbs Act robbery is not a qualifying crime of violence because its
elements do not meet the necessary intent required by Borden. 4 Completed Hobbs
Act robbery’s elements require acting knowingly or willingly. United States v. Du
Bo, 186 F.3d 1177, 1179 (9th Cir. 1999). While Borden, 141 S. Ct. at 1826, held that
a “knowing” mens rea is sufficient under the force clause, the Ninth Circuit’s
definition of “knowing” deviates from this Court’s precedent.
The Ninth Circuit’s definition of knowingly has not required the defendant to
know a particular “result is practically certain to follow from his conduct” as this
Court requires under the force clause. Borden, 141 S. Ct. at 1823. Instead, the
Ninth Circuit recently held “[a] defendant acts knowingly when ‘the defendant is
aware of the act and does not act through ignorance, mistake, or accident.” United
States v. Henry, 984 F.3d 1343, 1358 (9th Cir.), cert. denied, 142 S. Ct. 376 (2021).
Nor does the Ninth Circuit’s knowingly definition require the government to prove
the defendant “[made] a deliberate choice with full awareness of consequent harm.”
Borden, 141 S. Ct. at 1823. Instead, the Ninth Circuit holds “‘knowingly’ does not
necessarily have ‘any reference to a culpable state of mind.’” United States v.
Spatig, 870 F.3d 1079, 1083 (9th Cir. 2017). Thus, the Ninth Circuit’s definition of
4 The government cites pre-Borden circuit decisions holding Hobbs Act
robbery was a crime of violence under § 924(c)’s force clause. Gov. Br. at 17, n.4. In
doing so, the government fails to acknowledge that no circuit has yet considered
Borden’s impact on categorical analysis for Hobbs Act robbery.
12
knowingly—under which Petitioners were convicted—is inconsistent with this
Court’s definition of the knowingly mens rea required for § 924(c)’s force clause.
The critical question is not whether a defendant’s prior actions did cause
harm, but whether the statute requires that—when he acted—he intended to harm
another. Borden, 141 S. Ct. at 1831 & n.8. The force clause does not reach conduct
where the defendant “fail[ed] to perceive the possible consequence of his behavior.”
Id. at 1824. The offense must instead require a “deliberate choice with full
awareness of consequent harm . . . against” the object of the intentional act. Id. at
1825–26, 1830.
For Hobbs Act robbery, the perpetrator can be convicted for a deliberate
choice to intimidate another without full awareness of consequent harm. For
example, where a victim has a heart attack before handing over his wallet, the
perpetrator would satisfy the elements of Hobbs Act robbery. Not only is this not
use of violent physical force against another, but the perpetrator would not have
known or intended the physical harm. In such cases, the resulting harm would at
best be reckless—which does not suffice, as it is neither purposeful nor knowing. By
“demand[ing] that the perpetrator direct his action at, or target, another
individual,” consciously intending harm to another, Borden narrowed the
application of § 924(c)’s mandatory penalties. Borden, 141 S. Ct. at 1825–27.
Apart from mens rea, the elements of completed Hobbs Act robbery do not
match the force clause requirements because they include: threats to property,
which do not necessarily require violent physical force; fear of future economic loss
13
or damage to intangible property, which do not necessarily require violent physical
force; or merely the fear of personal injury—not the threat of violent physical force
as argued in Petitioners’ briefing below. For these reasons, completed Hobbs Act
robbery is not a qualifying crime of violence.
***
The government’s analysis of the predicates at issue is inaccurate considering
this Court’s recent caselaw. Taylor and Borden do not permit Petitioners’
convictions under § 924(c) for a non-federal offense to be sustained. Petitioners’
collateral attacks are meritorious and require relief.
Conclusion
Petitioners ask the Court to grant this joint petition for a writ of certiorari.
Dated: November 21, 2022.
Respectfully submitted,
RENE L. VALLADARES
Federal Public Defender
/s/ Wendi L. Overmyer
Wendi L. Overmyer
Assistant Federal Public Defender
Office of the Federal Public Defender
411 E. Bonneville, Ste. 250
Las Vegas, Nevada 89101
(702) 388-6577
Wendi_Overmyer@fd.org
Lead Counsel for Petitioners
/s/ Cristen C. Thayer
Cristen C. Thayer
Assistant Federal Public Defender
Office of the Federal Public Defender
411 E. Bonneville, Ste. 250
14
Las Vegas, Nevada 89101
(702) 388-6577
Cristen_Thayer@fd.org
/s/ Lauren B. Torre
Lauren B. Torre
Assistant Federal Public Defender
Office of the Federal Public Defender
411 E. Bonneville, Ste. 250
Las Vegas, Nevada 89101
(702) 388-6577
Lauren_Torre@fd.org
15
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