NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. JORDAN HUFF,

Defendant-Appellant. No. 17-16763 D.C. Nos. 1:16-cv-01945-LJO

1:07-cr-00156-LJO-2
MEMORANDUM *

Appeal fromthe United States District Court for the Eastern District of California Lawrence J. O’Neill, District Judge, Presiding Subm itted May 18, 2022 * * Pasadena, California Before: LEE and BRESS, Circuit Judges, and FITZWATER, * * * District Judge. 

# FILED
MAY 23 2022 M OLLY C. DWYER, CLERK U.S. COURT OF APPEALS

* This disposition is not appropriate for publicatio n an d i s not precedent except as provided by Ninth Circuit Rule 36-3.

* * T h e p an e l un an i mo u s l y c o n c lud es th i s cas e i s s u i tab l e f o rd eci s i o n without oral argum e nt. SeeFed. R. App. P. 34(a)(2).

* * * The Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation.Movant Jordan Huff (“Huff”) appeals the denial of his m otion under 28 U.S.C.

§ 2255 to vacate, set aside, or co rr ect h i s 18 U.S.C. § 924(c) convictions and sentences. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm
. We review de novo the district court’s denial of a § 2255 m otion, an d we review the district court’s factual findings for clear error. United States v. Guess , 203 F.3d 1143, 1145 (9th Cir. 2000). 1. We do not reach the governm ent’s argum e nt that we sh ou l d dism iss in part the c ertificate of a

ppealability (“COA”) as im providently granted. See Phelps v. Alameda , 366 F .3 d 722, 726 (9th Cir. 2004) (“[M] erits panels are not required to
examine allegedly defective COAs in the face of jurisdictional challenges.”). 2. It is apparent from the r eco r d that Huff’s § 924(c) convictions are predicated on Hobbs Act robbery, not conspiracy to commit Hobbs Act robbery. But Huff contends that, after Un i ted States v. Davis , 139 S. Ct. 2319 (2019), his Hobbs Act robbery convictions are invalid predicate crim e s of violence for a § 924(c) conviction because they are based on either a Pinkerton or an aiding-and-abetting theory of liability. This argum ent is foreclosed by o ur p reced ents. See Young v. United States , 22 F.4th 1115, 1122-23 (9th Cir. 2022) ( exp l ai n i ng that “there is no distinction between aiding-and-abetting liab ility and liability as a principal under federal law[,] ” and holding that “aiding and abetting a crim e of violence, such as - 2 -arm ed bank robbery, is also a crim eof violence”); United States v. Henry , 984 F.3d

1343, 1355-56 (9th Cir. 2021) ( r ej ecting argum ent that § 924(c) c onviction was invalid if predicate offense was based on Pinkerton liability). Borden v. United States , 141 S. Ct. 1817 (2 0 2 1 ) (p lurality opinion), is not clearly irreconcilable with these binding pre c e dents. See United States v. Boitano , 796 F.3d 1160, 1164 (9th Cir. 2015) (recognizing that three-judge panel m ay not overrule
a prior panel opinion absent c learly irreconcilable, intervening higher authority). In Borden the C ourt held that a crim inal offense that requires only a mens rea of recklessness cannot qualify as a “violent felony” under the force (or elem ents) clause of the Arm ed Career Crim inal Act, 18 U.S.C. § 924(e)(2)(B)(i). Borden , 141 S. Ct. at 1821-22, 1834. But the Court did not address whether § 924(c) convictions can be p r ed i cat ed on crim e-of-violence convictions that are based on a Pinkerton or an aiding-and-abetting th eo ryof liability. The Court explicitly stated in Borden that it
was not addressing accessory liability. Id. at 1823 n.3 (stating that the Court had “no occasion t o ad dress” inchoate crim es, such as conspiracy, or aiding-and-abetting liability). Regardless, Borden confirm ed preexisting Ni nth Circuit precedent that
m ere recklessness is not sufficient under the force clause, United States v. Grajeda , 581 F.3d 1186, 1191 (9th Cir. 2009), and Hobbs Act robbery in all events requires a

- 3 -greater mens rea than recklessness, United States v. Dominguez , 954 F.3d 1251, 1261

(9th Cir. 2020). 3. Huff has also briefed the uncertified issue of whether, a fter Davis , Hobbs Act robbery—comm itted a s a principal—is a valid predicate c rim e of violence for a § 924(c) conviction. Construing this argum ent as a m otion to expand the COA, see Ninth Cir. R. 22-1(e); Mardesich v. Cate , 668 F.3d 1164, 1169 n.4 (9th Cir. 2012), we deny the m otion because Huff has not “m ade a subs t ant i al s ho wing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2); see Dominguez , 954 F.3d at 1260-61 (reaffirm ing that Hobbs Act robbery is a crim e of violence under § 924(c)(3)(A)). 1 Because Hobbs Act robbery is a c rim e of violence, regardless of the theory of liability that Huff’s convictions are based on, we affirm the district court’s denial of Huff’s § 2255 m otion. AFFIRMED
.

1 We therefore have no need to reach the governm ent’s argum ent that Huff procedurally defaulted his claim s.

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