                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                              FILED
                           FOR THE NINTH CIRCUIT
                                                                              SEP 13 2018
                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No.   17-15578

              Plaintiff-Appellee,                D.C. Nos.    1:15-cv-01956-LJO
                                                              1:94-cr-05036-LJO-1
 v.

JOHN ALLEN NEWTON,                               MEMORANDUM*

              Defendant-Appellant.


                   Appeal from the United States District Court
                      for the Eastern District of California
                   Lawrence J. O’Neill, Chief Judge, Presiding

                     Argued and Submitted September 4, 2018
                            San Francisco, California

Before: BERZON and FRIEDLAND, Circuit Judges, and DOMINGUEZ,**
District Judge.

      Petitioner John Allen Newton (“Newton”) appeals from the denial of his

28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. He challenges

his two convictions for use of a firearm during a crime of violence,

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Daniel R. Dominguez, United States District Judge for
the District of Puerto Rico, sitting by designation.
18 U.S.C. § 924(c), which were based on two underlying convictions for federal

carjacking, 18 U.S.C. § 2119. Because the federal carjacking statute in effect when

Newton committed his offenses in January and February 1994 is categorically a

“crime of violence” under 18 U.S.C. § 924(c), we affirm the district court.

      We are bound by United States v. Watson, 881 F.3d 782 (9th Cir. 2018), and

United States v. Gutierrez, 876 F.3d 1254 (9th Cir. 2017). Gutierrez held that an

amended version of the federal carjacking statute is categorically a “crime of

violence” under § 924(c)(3)(A)’s definition of a “crime of violence” as a felony

that “has as an element the use, attempted use, or threatened use of physical force

against the person or property of another.” 876 F.3d at 1257. It concluded that the

“by intimidation” requirement of the carjacking statute “necessarily entails the

threatened use of violent physical force.” Id. Similarly, Watson held that federal

bank robbery, 18 U.S.C. § 2113(a), which also proscribes robbery “by force and

violence, or by intimidation,” is categorically a crime of violence under

§ 924(c)(3)(A)’s definition. 881 F.3d at 785.

      The federal carjacking statute in effect at the time Newton committed his

offenses in January and February 1994 is not meaningfully different from the

statutes at issue in Gutierrez and Watson. The version of the statute under which

Newton was convicted is nearly identical to the amended version in


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Gutierrez except that the amended version substitutes an “intent to cause death or

serious bodily harm” element for a “possessing a firearm” element. See Violent

Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322,

§ 60003(a)(14), 108 Stat. 1796, 1970 (Sept. 13, 1994). Newton attempts to

distinguish Gutierrez because the version of the carjacking statute applicable to

him lacks this mens rea requirement. But Watson determined that difference to be

immaterial when it held that the parallel federal bank robbery statute, which still

does not require an intent to cause serious bodily harm, was categorically a “crime

of violence.” 881 F.3d at 785. We are bound by those holdings. 1

      AFFIRMED.




      1
        Because we may affirm on any ground supported by the record, Cassirer v.
Thyssen-Bornemisza Collection Found., 862 F.3d 951, 974 (9th Cir. 2017), we do
not decide whether Newton’s § 2255 motion was timely, as that question is not
jurisdictional. See United States v. Battles, 362 F.3d 1195, 1196 (9th Cir. 2004)
(holding that one-year limitations period on filing of § 2255 motions is subject to
equitable tolling); United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1631 (2015)
(concluding that if a limitations period is “jurisdictional,” it is not subject to
equitable tolling).
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