                                                                            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                           NOT FOR PUBLICATION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. 16-56858

              Plaintiff-Appellee,                D.C. Nos. 3:16-cv-01561-CAB
                                                           3:96-cr-00331-CAB-1
 v.

AARON SCOTT PRUETT,                              MEMORANDUM*

              Defendant-Appellant.


                   Appeal from the United States District Court
                      for the Southern District of California
                 Cathy Ann Bencivengo, District Judge, Presiding

                      Argued and Submitted October 5, 2017
                              Pasadena, California

Before: GRABER, MURGUIA, and CHRISTEN, Circuit Judges.

      Defendant Aaron Scott Pruett timely appeals the district court’s denial of his

motion filed pursuant to 28 U.S.C. § 2255. Reviewing de novo, United States v.

Swisher, 811 F.3d 299, 306 (9th Cir. 2016) (en banc), we affirm.

      Defendant pleaded guilty, in 1996, to armed bank robbery, in violation of 18

U.S.C. § 2113(a), (d), and to using and carrying a handgun during the robbery, in


      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
violation of 18 U.S.C. § 924(c)(1). Because of two previous convictions for

robbery in violation of California Penal Code section 211, the court sentenced him

as a career offender under U.S.S.G. § 4B1.1. He now argues that, applying

Johnson v. United States, 135 S. Ct. 2551 (2015), the residual clauses of the then-

applicable versions of 18 U.S.C. § 924(c)(3) and U.S.S.G. § 4B1.2(1) are

unconstitutionally vague.

      In 1990, we had held that a conviction for federal bank robbery qualifies as a

"crime of violence" because it "has as an element the use, attempted use, or

threatened use of physical force against the person of another." United States v.

Selfa, 918 F.2d 749, 751 (9th Cir. 1990). And in 1994, we had held that "a

violation of California Penal Code section 211 includes the element of threatened

use of physical force against the person of another." United States v. David H., 29

F.3d 489, 494 (9th Cir. 1994) (per curiam) (internal quotation marks omitted). In

other words, in 1996, Defendant’s armed robbery conviction and his previous

California robbery convictions met the definitions of "crime of violence" apart

from the residual clauses that he now challenges. See 18 U.S.C. § 924(c)(3)(A)

(1996) (defining "crime of violence" as a crime that "has as an element the use,

attempted use, or threatened use of physical force against the person or property of

another"); U.S.S.G. § 4B1.2(1)(i) (1996) (defining "crime of violence" as a crime


                                          2
that "has as an element the use, attempted use, or threatened use of physical force

against the person of another"). There is no suggestion in the record that the

district court or the parties nevertheless considered the residual clauses.

Accordingly, this is not a situation in which "it is unclear from the record whether

the sentencing court relied on the residual clause." United States v. Geozos, 870

F.3d 890, 895 (9th Cir. 2017). Because his conviction and sentence did not

implicate the residual clauses, the Supreme Court’s later decisions concerning the

constitutionality of a residual clause are of no moment, and Defendant cannot

establish that his petition is timely under 28 U.S.C. § 2255(f)(3).

      AFFIRMED.




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                                                                             FILED
United States v. Pruett, No. 16-56858
                                                                              NOV 30 2017
CHRISTEN, Circuit Judge, concurring:                                      MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


      I concur in the result. I respectfully depart from the majority because in my

view, the state of the law at the time a sentence is imposed does not always bear on

the timeliness of a criminal defendant’s challenge to his or her sentence. Were the

Supreme Court’s jurisprudence to evolve such that a defendant’s sentencing

enhancement under the pre-Booker career offender guideline could no longer be

supported by the force clause or the residual clause, that defendant should not be

precluded from§ 2255 relief on account of the clause ostensibly invoked at the time

of his or her sentencing. To illustrate, consider a hypothetical situation where:

      The Supreme Court applies the categorical or modified categorical approach
      to abrogate a longstanding holding of this court that a certain crime qualifies
      as a crime of violence under the force clause of the career offender
      guideline. Although an affected criminal defendant was sentenced—before
      2005—under the force clause, she does not immediately file a § 2255 motion
      because her crime remains a crime of violence under the residual clause.
      Then the Supreme Court declares the residual clause of the pre-Booker
      career offender guideline unconstitutionally vague,1 and the defendant brings
      her first § 2255 motion.

I fear that the majority’s holding might be taken to suggest that because the

defendant’s crimes of conviction were undoubtedly crimes of violence under the

force clause at the time of sentencing, her sentence does not implicate the residual


      1
          This possibility was left open by Beckles v. United States, 137 S. Ct. 886
(2017).
clause and she may not benefit from the Supreme Court’s later decision

invalidating the residual clause. As I see it, the text of § 2255(f)(3) imposes no

such barrier to relief.2

       I would dispose of this appeal on the grounds that Pruett has not

demonstrated that his sentence was “imposed in violation of the Constitution or

laws of the United States.” 28 U.S.C. § 2255(a). Pruett’s convictions under

California Penal Code § 211 and 18 U.S.C. § 2113(a),(d) all qualify as crimes of

violence under the force clause of U.S.S.G. § 4B1.2(1) because they have “as an

element the use, attempted use, or threatened use of physical force against the

person of another.” United States v. Chavez-Cuevas, 862 F.3d 729 (2017); United

States v. Selfa, 918 F.2d 749, 751 (9th Cir. 1990). For the same reason, his

conviction under 18 U.S.C. § 2113(a),(d) satisfies the predicate for criminal

liability under 18 U.S.C. § 924(c)(1). United States v. Wright, 215 F.3d 1020,

1028 (9th Cir. 2000). No intervening authority has undermined our holdings that

California robbery and federal armed robbery are crimes of violence under

U.S.S.G. § 4B1.2(1) and 18 U.S.C. § 924(c)(3)’s force clauses.

       In sum, even if we assume, for the sake of argument, that the residual



       2
        The same argument applies to a conviction that could rest on either a force
clause or a residual clause.
                                           2
clauses in U.S.S.G. § 4B1.2(1) and 18 U.S.C. § 924(c)(3) are indistinguishable

from the one invalidated in Johnson v. United States, 135 S. Ct. 2551, 2563 (2015),

Pruett is not entitled to relief under 28 U.S.C. § 2255(a) because his convictions

under California Penal Code § 211 and 18 U.S.C. § 2113(a),(d) remain crimes of

violence under this circuit’s case law.




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