                                                                              FILED
                            NOT FOR PUBLICATION
                                                                              NOV 30 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.    16-16138

              Plaintiff-Appellee,                D.C. Nos.
                                                 1:16-cv-00107-LEK-KJM
 v.                                              1:10-cr-00174-LEK-01

MICHAEL JAY,
                                                 MEMORANDUM*
              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Hawaii
                   Leslie E. Kobayashi, District Judge, Presiding

                      Argued and Submitted October 10, 2017
                                Honolulu, Hawaii

Before: SCHROEDER, D.W. NELSON, and McKEOWN, Circuit Judges.

      Defendant-Appellant Michael Jay appeals the district court’s denial of his

motion under 28 U.S.C. § 2255 challenging his sentence following his guilty plea

to Hobbs Act Robbery, in violation of 18 U.S.C. §§ 1951 and 2; using a firearm

during and in relation to a crime of violence, in violation of 18 U.S.C. §§



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
924(c)(1)(B)(i) and 2; and being a felon in possession of a firearm, in violation of

18 U.S.C. §§ 922(g)(1) and 924(a)(2). Our appellate jurisdiction rests on 28

U.S.C. §§ 1291 and 2255, and we AFFIRM.

      Jay contends Hobbs Act Robbery is not a “crime of violence” within the

meaning of 18 U.S.C. § 924(c). Our Court has held it is. See United States v.

Selfa, 918 F.2d 749 (9th Cir. 1990). Jay asks, however, that we overrule Selfa and

the cases following it. We cannot do so. We are bound by Circuit precedent

unless overruled or undermined by an en banc decision of this Court or a decision

of the United States Supreme Court. See Miller v. Gammie, 335 F.3d 889, 899-900

(9th Cir. 2003).

      Jay suggests Moncrieffe v. Holder, 133 S.Ct. 1678 (2013) is such

intervening higher authority. But Moncrieffe does no more than require us to look

to the least of the conduct proscribed by the statute, not to the conduct the

defendant actually committed, and determine “whether even those acts are

encompassed by the generic federal offense.” Moncrieffe, 133 S.Ct. at 1684

(citations omitted); see also Selfa, 918 F.2d at 751 (holding “the elements of the

crimes of which the defendant was previously convicted, and not the particular

conduct of the defendant on the day the crimes were committed,” controls the

Court’s analysis). Under Selfa and the language of the statute, Hobbs Act Robbery


                                           2
requires force or intimidation and does not countenance violation by means of

conduct that is essentially passive. See 18 U.S.C. § 1951(b)(1) (defining “robbery”

as “the unlawful taking or obtaining of personal property from the person or in the

presence of another, against his will, by means of actual or threatened force, or

violence, or fear of injury, immediate or future, to his person or property”); Selfa,

918 F.2d at 751 (“intimidation,” defined as willfully taking or attempting to take in

such a way “that would put an ordinary, reasonable person in fear of bodily harm,”

meets the requirement of a “threatened use of physical force”) (internal quotation

marks and citations omitted).

      Jay’s challenge to his designation as a Career Offender under the Guidelines

also fails. Jay’s argument that the Career Offender provision’s residual clause is

void for vagueness is foreclosed by Beckles v. United States, 137 S.Ct. 886, 890

(2017). The district court correctly held that Jay’s prior convictions for Assault in

the First Degree were crimes of violence so he was properly sentenced as a career

offender under U.S.S.G. § 4B1.1.

      AFFIRMED.




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