                                                                                      FILED
                                                                          United States Court of Appeals
                         UNITED STATES COURT OF APPEALS                           Tenth Circuit

                               FOR THE TENTH CIRCUIT                             August 7, 2018
                           _________________________________
                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                             No. 17-5055
                                                   (D.C. Nos. 4:16-CV-00256-JHP-PJC &
 VERNON JAMES HILL,                                       4:12-CR-00050-JHP-1)
                                                                (N.D. Okla.)
          Defendant - Appellant.
                         _________________________________

               ORDER DENYING CERTIFICATE OF APPEALABILITY
                      _________________________________

Before LUCERO, HARTZ, and MORITZ, Circuit Judges.
                  _________________________________

          Vernon Hill requests a certificate of appealability (COA) so he can appeal the

denial of his 28 U.S.C. § 2255 motion. Hill has not shown reasonable jurists could

debate the district court’s decision to deny his claims, so we deny a COA and dismiss his

appeal.

       I. Background

       Hill and several co-defendants were indicted for crimes related to a string of bank

and pharmacy robberies in Tulsa, Oklahoma. The indictment charged Hill with four

offenses:


       
         This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    Count One: conspiracy to commit Hobbs Act robbery, 18 U.S.C. § 1951, listing

       overt acts related to robberies of IBC Bank, Metro Pharmacy, and Arvest Bank1;

    Count Two: Hobbs Act robbery of IBC Bank;

    Count Five: Hobbs Act robbery of Metro Pharmacy;

    Count Six: using, carrying, and brandishing a firearm during a crime of violence,

       18 U.S.C. § 924(c)(1)(A)(ii), based on the Metro Pharmacy robbery described in

       Count Five.

A jury convicted Hill of all counts and we affirmed his convictions on appeal, see United

States v. Hill, 604 F. App’x 759, 762 (10th Cir. 2015) (unpublished).

       Hill then moved to vacate his sentence under 28 U.S.C. § 2255. He argued (1) his

appellate attorney was ineffective for failing to challenge his § 924(c) conviction under

Rosemond v. United States, 134 S. Ct. 1240 (2014); and (2) his § 924(c) conviction is

unconstitutional under Johnson v. United States, 135 S. Ct. 2551 (2015). The district

court rejected both arguments, denied Hill’s § 2255 motion, and denied his request for a

COA. Hill now seeks a COA in this court.

       II. COA Standard

       Hill must obtain a COA to appeal the denial of his § 2255 motion. See 28 U.S.C.

§ 2253(c)(1)(B). We will grant a COA if he makes “a substantial showing of the denial



       1
         Hill was convicted of robbing the Arvest Bank in a separate case. See United
States v. Hill, 737 F.3d 683, 684 (10th Cir. 2013). As we noted in Hill’s direct appeal,
United States v. Hill, 604 F. App’x 759, 764 n.8 (10th Cir. 2015) (unpublished), a
substantive crime and conspiracy to commit that crime are separate offenses for double
jeopardy purposes, United States v. Felix, 503 U.S. 378, 390-92 (1992).
                                             2
of a constitutional right.” § 2253(c)(2). Because the district court denied Hill’s § 2255

motion on the merits, he must show reasonable jurists could debate whether the motion

should have been granted or the issues presented deserve encouragement to proceed

further. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

       III. Analysis

       Hill argues the district court erred by denying his ineffective assistance claim and

his Johnson claim. Both relate to Hill’s conviction under § 924(c), which provides in

relevant part:

       any person who, during and in relation to any crime of violence . . . for
       which the person may be prosecuted in a court of the United States, uses or
       carries a firearm, . . . shall, in addition to the punishment provided for such
       crime of violence . . .

       (ii) if the firearm is brandished, be sentenced to a term of imprisonment of
       not less than 7 years . . . .

§ 924(c)(1)(A).

                 A. Ineffective assistance of counsel claim

       In his § 2255 motion, Hill argued his appellate attorney was ineffective for failing

to challenge his § 924(c) conviction under Rosemond, which held a defendant cannot be

convicted of aiding and abetting a § 924(c) violation unless he has advance knowledge

one of his confederates will carry a gun, 134 S. Ct. at 1249. As noted above, the

predicate offense for Hill’s § 924(c) conviction was the Metro Pharmacy robbery. The

evidence suggested it was Hill’s co-defendants, rather than Hill himself, who brandished

guns during the robbery, and the district court agreed there was not enough evidence of

advance knowledge to convict Hill of aiding and abetting under Rosemond.

                                              3
Nevertheless, the court found the evidence was sufficient to convict Hill on the

alternative theory of co-conspirator liability under Pinkerton v. United States, 328 U.S.

640 (1946). See United States v. Bowen, 527 F.3d 1065, 1077 (10th Cir. 2008) (“Aiding

and abetting and Pinkerton co-conspirator liability are alternative theories by which the

Government may prove joint criminal liability for a substantive offense.” (internal

quotation marks omitted)). In Pinkerton, the Supreme Court held that a defendant may

be liable for his co-conspirator’s crimes so long as they are reasonably foreseeable and

committed to further the conspiracy. See Pinkerton, 328 U.S. at 647-48; United States v.

Clark, 717 F.3d 790, 808 (10th Cir. 2013). Based on “the facts in th[e] case, including

the number of robberies in which [Hill’s] co-conspirators either implied they had a

weapon or showed that weapon,” the district court found “it was entirely foreseeable that

one or more of [his] accomplices would bring a firearm to the Metro Robbery and

brandish it in furtherance thereof.” R. Vol. V. at 119 (footnote omitted). Because the

evidence was sufficient to convict Hill on this alternative theory of liability, the court

concluded that his appellate attorney’s failure to challenge Hill’s § 924(c) conviction

under Rosemond didn’t rise to the level of ineffective assistance.

       Hill argues the district court erred by considering evidence of other robberies to

find that brandishing a gun during the Metro Pharmacy robbery was reasonably

foreseeable. He cites our determination in his direct appeal that “the government

introduced insufficient evidence of interdependence to prove [a] global conspiracy,” Hill,




                                              4
604 F. App’x at 771,2 and argues that, in the absence of a global conspiracy, the district

court could only consider evidence related to the Metro Pharmacy robbery. According to

Hill, this evidence was not alone sufficient to show he could have reasonably foreseen a

co-conspirator would brandish a gun.

       We begin by assessing the legal framework that applies to Hill’s claim. See

Miller-El, 537 U.S. at 338. The Sixth Amendment gives criminal defendants the right to

effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). A

defendant who claims he was denied effective assistance must show (1) his attorney’s

performance was deficient and (2) the deficient performance caused him prejudice. Id. at

687. Hill doesn’t dispute that the jury was properly instructed on the requirements of

Pinkerton co-conspirator liability. See R. Vol. I at 779. So if the evidence was sufficient

to convict Hill of violating § 924(c) on a theory of Pinkerton co-conspirator liability, he

can’t show his attorney’s failure to challenge his conviction under Rosemond—which

concerns only aiding and abetting—prejudiced him.

       To decide whether reasonable jurists could debate the district court’s decision, we

make “a threshold inquiry into the underlying merit of [Hill’s] claim[],” Miller-El,

537 U.S. at 327, by briefly reviewing the evidence related to the Metro Pharmacy

robbery. According to the government’s evidence, six individuals participated in that



       2
         Despite concluding there was insufficient evidence of a global conspiracy, we
affirmed Hill’s conviction on the conspiracy count because (1) the evidence showed he
conspired to rob the Metro Pharmacy and the Arvest Bank, Hill, 604 F. App’x at 772 &
n.18, and (2) the variance between the allegations in the indictment and evidence at trial
didn’t substantially prejudice him, id. at 774.
                                             5
robbery: Hill, Duncan Herron, Christopher Lewis, Marquis Devers, Dontayne Tiger, and

Deandre Hopkins. All were members or affiliated with members of the Hoover Crips

street gang. One of the participants—Herron—testified at trial in hopes of receiving a

better sentence. He testified the group met in advance to plan the robbery. According to

the plan, Herron would enter the pharmacy first and hold the door for Hill, Lewis, and

Devers. When they discussed this part of the robbery, Lewis joked he would “hit

[Herron] in the head with the gun” when he entered the pharmacy. R. Vol. II at 1151.

Once Hill, Lewis, and Devers were inside, Hill “was going to search,” id. at 1152,

meaning he would “[c]heck for money and medicine,” id. at 1170, and Devers would “

lay everyone down,” id. at 1152. Finally, Tiger and Hopkins would “be lookouts across

the street.” Id.

       After the meeting, the group executed their plan. Herron entered the pharmacy

and held the door for Hill, Lewis, and Devers. Those three robbed the pharmacy, with

Hill carrying a bag and Lewis and Devers brandishing guns. As they had planned, Tiger

and Hopkins acted as lookouts. After the robbery, everyone but Herron left together in a

van.

       Reasonable jurists could not debate whether this evidence was sufficient to find

that brandishing a gun was reasonably foreseeable. Herron testified that one

co-conspirator mentioned a gun when the group planned the Metro Pharmacy robbery,

and Herron’s testimony that the group executed the robbery according the plan suggests a

gun was part of that plan. Even the takeover style of the robbery suggests the group

planned to use some mechanism to take control of the pharmacy. Cf. United States v.

                                            6
Smith, 697 F.3d 625, 635 (7th Cir. 2012) (concluding it was reasonably foreseeable that a

co-conspirator would carry a gun in part because “this bank robbery was a take-over

robbery (as opposed to a note-passing robbery), necessitating some mechanism of

obtaining control of the bank”). In short, the evidence of the Metro Pharmacy robbery

was alone sufficient to convict Hill of violating § 924(c) on a theory of Pinkerton

co-conspirator liability. As a result, Hill can’t show his appellate attorney’s failure to

challenge his § 924(c) conviction under Rosemond was prejudicial, and no reasonable

jurist could debate the district court’s decision to deny Hill’s ineffective assistance claim.

We therefore deny a COA on this issue without addressing whether the district court

erred by citing evidence of other robberies in its decision. See Davis v. Roberts, 425 F.3d

830, 834 (10th Cir. 2005) (we may deny COA on a ground adequately supported by the

record but not relied on by the district court).

              B. Johnson claim

       Hill argued in his § 2255 motion that, after Johnson, conspiracy to commit Hobbs

Act robbery was not a crime of violence within the meaning of § 924(c). That section

defines “crime of violence” as a felony

       (A) [that] has as an element the use, attempted use, or threatened use of
       physical force against the person or property of another, or

       (B) that 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.

§ 924(c)(3). Hill argued § 924(c)(3)(A) (known as the elements clause) didn’t apply

because conspiracy to commit Hobbs Act robbery doesn’t require the use, attempted use,


                                               7
or threatened use of physical force. And he argued § 924(c)(3)(B) (known as the residual

clause) was unconstitutionally vague under Johnson, which invalidated a similar

provision of the Armed Career Criminal Act, 135 S. Ct. at 2563.3 The district court

rejected both arguments, but concluded that, even if Johnson invalidated § 924(c)’s

residual clause, Hobbs Act robbery was a crime of violence under the elements clause.

       Hill reasserts the arguments in his § 2255 motion and argues the district court

erred by analyzing Hobbs Act robbery, rather than conspiracy to commit Hobbs Act

robbery, which Hill claims was the predicate for his § 924(c) conviction. But it is clear

from the record that the predicate offense for Hill’s § 924(c) conviction was the Hobbs

Act robbery of the Metro Pharmacy alleged in Count Five, see R. Vol. I at 765, not the

conspiracy charge in Count One. And we have held that Hobbs Act robbery is a crime of

violence under § 924(c)(3)’s elements clause. See United States v. Melgar-Cabrera,

892 F.3d 1053, 1060 n.4 (10th Cir. 2018). So although we agree with Hill that

§ 924(c)(3)’s residual clause is unconstitutionally vague, see United States v. Salas,

889 F.3d 681, 686 (10th Cir. 2018), reasonable jurists could not debate the district court’s

decision to deny relief on this claim.




       3
         Johnson was decided shortly after Hill’s direct appeal, but its holding applies
retroactively to cases on collateral review, see Welch v. United States, 136 S. Ct. 1257,
1268 (2016).

                                             8
IV. Conclusion

We deny a COA and dismiss this appeal.


                                   Entered for the Court


                                   Nancy L. Moritz
                                   Circuit Judge




                                  9
