NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT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

Plaintiff-Appellee,

v. JOHN ALLEN NEWTON,

Defendant-Appellant. No. 17-15578 D.C. Nos. 1:15-cv-01956-LJO

1:94-cr-05036-LJO-1
MEMORANDUM *

Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, Chief Judge, Presiding A rgued and Subm itted Septem ber 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 m otion to vacate, set aside, or correct his sentence. He challenges his two convictions for use of a firearm during a crim e of violence, 

# FILED
SEP 13 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

* * The Honorable Daniel R. Dom inguez, 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 com m itted his offenses in January and February 1994 is categorically a “crim e 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
am ended version of the federal carjacking statute is categorically a “crim e of violence” under § 924(c)(3)(A)’s definition of a “crim e of violence” as a felony that “has as an elem ent the use, attem pted use, or threatened use of physical force against the person or property of another.” 876 F.3d a t 1257. It concluded that the “by intim idation” requirem ent of the carjacking statute “necessarily entails the threatened use of violent physical force.” Id . Sim ilarly, W atson held that federal bank robbery, 18 U.S.C. § 2113(a), which also proscribes robbery “by force and violence, or by intim idation,” is categorically a crim e of violence under § 924(c)(3)(A)’s definition. 881 F.3d at 785. The federal carjacking statute in effect at the tim e Newton com m itted his offenses in January and February 1994 is not m eaningfully 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 am ended version in
2Gutierrez

except that the am ended version substitutes an “intent to cause death or serious bodily harm ” elem ent for a “possessing a firearm ” elem ent. See Violent Crim e Control and Law Enforcem ent Act of 1994, Pub. L. No. 103-322, § 60003(a)(14), 108 Stat. 1796, 1970 (Sept. 13, 1994). Newton attem pts to distinguish Gutierrez because the version of the carjacking statute applicable to him lacks this m ens rea requirem e nt. But Watson determ ined that difference to be im m aterial 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 “crim e of violence.” 881 F.3d at 785. We are bound by those holdings. 1 AFFIRMED
.

1 Because we m ay 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 m otion was tim ely, as that question is not jurisdictional. See United States v. Battles , 362 F.3d 1195, 1196 (9th Cir. 2004) (holding that one-year lim itations period on filing of § 2255 m otions is subject to equitable tolling); United States v. Kwai Fun Wong , 135 S. Ct. 1625, 1631 (2015) (concluding that if a lim itations period is “jurisdictional,” it is not subject to equitable tolling). 3