NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

EDWARD STAIN, 

Defendant-Appellant.

No. 17-16707 

D.C. Nos. 2:16-cv-01462-LRH 

2:02-cr-00201-LRHNJK -4 

MEMORANDUM*

Appeal from the United States District Court

for the District of Nevada

Larry R. Hicks, District Judge, Presiding

Submitted July 8, 2021**

San Francisco, California

Before: GRABER and LEE, Circuit Judges, and VRATIL,*** District Judge.

Defendant Edward Stain is a federal prisoner who is serving a 535-month 

sentence for two 2002 robberies. A jury convicted Stain under an accomplice 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Kathryn H. Vratil, United States District Judge for the 

District of Kansas, sitting by designation.

FILED

AUG 11 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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liability theory of conspiracy, Hobbs Act robbery, armed bank robbery, and two 

counts of possession of a firearm in connection with a violent felony under 18 U.S.C. 

§ 924(c). On direct appeal, we reversed his conspiracy conviction but affirmed his 

other convictions. United States v. Stain, 272 F. App’x 618 (9th Cir. 2008). Now, 

on his second successive collateral appeal, Stain appeals the district court’s denial 

of his claim that Hobbs Act robbery and armed bank robbery are no longer valid 

predicate offenses for his § 924(c) convictions. Stain further claims that his sentence 

violates the Supreme Court’s decision in Dean v. United States, 137 S. Ct. 1170 

(2017). 

“We review a district court's denial of a § 2255 motion de novo, while we 

review for clear error any factual findings the district court made in deciding the 

motion.” United States v. Seng Chen Yong, 926 F.3d 582, 589 (9th Cir. 2019)

(cleaned up). We have jurisdiction pursuant to 28 U.S.C §§ 1291 and 2253(a). We 

affirm the district court’s denial and further deny Stain’s new Dean claim.

1. Stain argues that his § 924(c) convictions may have rested on his 

conspiracy conviction, which he argues is not a valid predicate offense. But the 

record makes clear that Stain’s § 924(c) convictions rested on his two robbery 

convictions. The jury instructions for Count Three’s § 924(c) conviction explicitly 

required the jury to find that Stain committed Hobbs Act robbery as alleged in Count 

Two. Similarly, the jury instruction for Count Five’s § 924(c) conviction explicitly 
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required the jury to find that Stain committed armed bank robbery as alleged in 

Count Four. 

Hobbs Act robbery and armed bank robbery are categorically crimes of 

violence under § 924(c)’s “elements” clause. At the time of Stain’s conviction in 

2005, we had long held that Hobbs Act robbery constituted a crime of violence under 

§ 924(c)’s elements clause. See United States v. Mendez, 992 F.2d 1488, 1491 (9th 

Cir. 1993). And after the Supreme Court struck down § 924(c)’s residual clause as 

unconstitutionally vague,1 we “reiterate[d]” our “previous holding that Hobbs Act 

armed robbery is a crime of violence for purposes of [§ 924(c)’s elements clause].” 

United States v. Dominguez, 954 F.3d 1251, 1255 (9th Cir. 2020) (citing Mendez, 

992 F.2d at 1491), petition for cert. filed, (U.S. Jan. 18 21, 2021) (No. 20-1000). 

Similarly, we have held that armed bank robbery is categorically a crime of violence 

under § 924(c)’s elements clause. United States v. Watson, 881 F.3d 782, 783–84 

(9th Cir. 2018), cert. denied 139 S. Ct. 203 (2018) (per curiam).

Because both of Stain’s § 924(c) convictions properly rested on a valid 

predicate crime of violence, those convictions pass constitutional muster.

1 United States v. Davis, 139 S. Ct. 2319 (2019).
4 

2. Faced with these precedents, Stain contends for the first time in a 

supplemental brief that a conviction premised on aiding and abetting liability does 

not meet § 924(c)’s elements clause. But we decline to consider this question 

because Stain has twice forfeited the argument. For starters, Stain did not argue this 

theory before the district court, so it is outside his certificate of appealability. See 

United States v. Monreal, 301 F.3d 1127, 1131 (9th Cir. 2002) (holding that absent 

a showing of manifest injustice, 28 U.S.C. § 2255 claims not raised to the district 

court are waived). Similarly, Stain made no mention of this claim in his initial 

briefing, so it was forfeited yet again. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th 

Cir. 1999) (“[A]rguments not raised by a party in its opening brief are deemed 

waived.”). 

3. Finally, Stain argues that the district court did not recognize its 

discretion to consider the mandatory sentences imposed by his § 924(c) convictions 

when imposing sentences for the other counts—an error that requires resentencing 

under Dean v. United States, 137 S. Ct. 1170 (2017). Even if this argument is 

preserved, we disagree. Unlike in Dean, nothing in the record here suggests that the 

district court thought that it lacked discretion to consider the mandatory sentences 

imposed by Stain’s § 924(c) convictions when imposing sentences for his other 

convictions. Indeed, for the non-924(c) convictions, the government recommended

a sentence of 121 months which was “within the low end of the initial underlying 
5 

charge.” And when sentencing Stain, the district court explained the severity of the 

robberies that occurred and said that the “Court cannot consider, in my mind, that a 

low-end sentence would be appropriate for those particular robberies. Those are the 

worst kind of robberies under the worst kind of circumstances.” Nevertheless, the 

district court left the sentence in the low-range of 121 months “because the members 

of the public were not so readily present and the Tec-9-millimeter semiautomatic 

weapon was also apparently not used in connection with this particular offense.” 

While the district court did not specifically note Stain’s § 924(c) counts while 

deciding this low-end sentence, nothing in the court’s analysis suggests that it 

thought itself constrained from considering the mandatory nature of his § 924(c) 

convictions. 

Stain points to comments from the government and his counsel that the court’s 

hands were tied for his 924(c) convictions. But the court’s hands were tied for those

convictions; § 924(c) convictions carry a statutory minimum sentence. See 18 U.S.C. 

§ 924(c). This language does not suggest that the district court thought itself 

constrained from considering his § 924(c) convictions while sentencing him for his 

other crimes.

AFFIRMED.