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

                            FOR THE TENTH CIRCUIT                               July 31, 2018

                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,                                No. 16-3311
                                                    (D.C. Nos. 6:16-CV-01231-JTM and
 v.                                                       6:94-CR-10129-JTM-1)
                                                                 (D. Kan.)
 PHOUC H. NGUYEN,

           Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.


          After examining the briefs and the appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is therefore ordered

submitted without oral argument.

          Petitioner Phouc H. Nguyen, a federal prisoner, appeals the district court’s denial

of his 28 U.S.C. § 2255 habeas motion. Petitioner argues that his conviction under 18

U.S.C. §924(c)(1)—based on his Hobbs Act robbery as the predicate crime of violence—



      *
        This order and judgment is not binding precedent, except under the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.
is unconstitutional in light of Johnson v. United States, 135 S. Ct. 2551 (2015). For the

following reasons, we affirm the district court’s denial of his habeas motion.

       In 1996, Petitioner was convicted of (1) interference with commerce by means of

robbery in violation of the Hobbs Act, 18 U.S.C. § 1951, and aiding and abetting the

robbery in violation of 18 U.S.C. § 2; and (2) carrying and using a firearm during and in

relation to the robbery in violation of 18 U.S.C. §924(c)(1), causing the death of a person

through the use of a firearm, which constitutes murder under 18 U.S.C. §§ 924(j)(1) &

1111(a), and aiding and abetting the killing of a person in violation of 18 U.S.C. § 2.

Petitioner was sentenced to 240 months of imprisonment on the first count and life

imprisonment without the possibility of release on the second count, to be served

concurrently. In relevant part, § 924(c)(1)(A) provides that:

       [A]ny 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, or who, in furtherance of any such crime, possess 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) (emphasis added). Under this section, a “crime of violence” refers to a

felony offense that “(A) has as an element the use, attempted use, or threatened use of

physical force against the person or property of another [elements or use of force clause],

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 [residual

clause].” 18 U.S.C. § 924(c)(3).


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       In his motion, Petitioner argues that his Hobbs Act robbery could only have been

considered a crime of violence under § 924(c)(3)’s residual clause, which he contends is

unconstitutionally vague under Johnson. Johnson invalidated the residual clause of the

Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B), which contains similar language

to § 924(c)(3)(B), defining a “violent felony” as a crime that “involves conduct that

presents a serious potential risk of physical injury to another.” 18 U.S.C. §

924(e)(2)(B)(ii). Johnson’s holding was made retroactive for all cases on collateral

review. See Welch v. United States, 136 S. Ct. 1257, 1265 (2016); see also 28 U.S.C. §

2255(f)(3).

       Petitioner filed a pro se § 2255 motion to vacate his sentence within one year of

Johnson. The district court denied the motion as untimely, holding that Johnson was not

applicable to § 924(c)(3). Alternatively, the district court denied relief on the merits,

concluding that Petitioner’s Hobbs Act robbery was a crime of violence under §

924(c)(3)(A) and declining to reach the constitutionality of § 924(c)(3)(B). The district

court granted Petitioner’s request for a COA.

       In a § 2255 appeal, we “review the district court’s findings of fact for clear error

and its conclusions of law de novo.” United States v. Barrett, 797 F.3d 1207, 1213 (10th

Cir. 2015) (quotation marks omitted). The gravamen of Petitioner’s argument is that his

sentence should be vacated because § 924(c)(3)(B)’s residual clause is unconstitutionally

vague under Johnson, and because his Hobbs Act robbery can only be a crime of violence

under this unconstitutional portion of the statute. This court has recently addressed both

arguments. First, in United States v. Salas, 889 F.3d 681, 684-86 (10th Cir. 2018), we

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held that § 924(c)(3)(B)’s [residual clause] definition of “crime of violence” is

unconstitutional under Sessions v. Dimaya, 138 S. Ct. 1204, 1215-16 (2018). Dimaya

extended Johnson’s reasoning to hold that this same definition of “crime of violence” in

18 U.S.C. § 16(b) was unconstitutionally vague. 138 S. Ct. at 1213-16; see also United

States v. Dubarry, 2018 WL 3342275 (10th Cir., July 9, 2018); United States v. Pasley,

2018 WL 3434458 (10th Cir., July 16, 2018). Based on this case law, Petitioner’s motion

raising a Johnson claim was, in fact, timely. See United States v. Snyder, 871 F.3d 1122,

1126 (10th Cir. 2017) (“[I]n order to be timely under § 2255(f)(3), a § 2255 motion need

only ‘invoke’ the newly recognized right, regardless of whether or not the facts of the

record ultimately support the movant’s claim.”). As Petitioner accurately asserts, his

Hobbs Act robbery conviction only qualifies as a crime of violence if it does so under the

elements clause in § 924(c)(3)(A).

       Having overcome this would-be procedural bar, Petitioner’s motion nevertheless

fails on the merits of his claim that Hobbs Act robbery is not a crime of violence under

the elements clause of § 924(c)(3)(A). Applying the categorical approach, this court

recently held that the force element of a Hobbs Act robbery “can only be satisfied by

violent force,” and, therefore, Hobbs Act robbery is categorically a crime of violence

under the elements clause of § 924(c)(3)(A). United States v. Melgar-Cabrera, 892 F.3d

1053, 1064-66 (10th Cir. 2018) (relying on United States v. Ontiveros, 875 F.3d 533

(10th Cir. 2017)). Moreover, Petitioner has not pointed to, nor have we found, anything

in the record suggesting that the sentencing court relied on the residual clause of §

924(c)(3)(B) in imposing his sentence. See United States v. Washington, 890 F.3d 891,

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896 (2018) (“[T]he burden is on the defendant to show by a preponderance of the

evidence—i.e., that it is more likely than not—his claim relies on Johnson.”).

      We accordingly see no error in the district court’s determination that Petitioner’s

Hobbs Act robbery conviction was a crime of violence under § 924(c)(3)(A)’s elements

clause. We therefore AFFIRM the denial of Petitioner’s § 2255 motion.



                                                ENTERED FOR THE COURT



                                                Monroe G. McKay
                                                Circuit Judge




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