UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 16-3311

v. (D.C. Nos. 6:16-CV-01231-JTM and 6:94-CR-10129-JTM-1) (D. Kan.) PHOUC H. NGUYEN, Defendan t - Appellant.

ORDER AND JUDGMENT *

Before PHILLIPS , McKAY , and McHUGH , Circuit Judges.

After examining the briefs and the appellate record, this panel has determined unanimously that oral argument wo uld not materially assist in t he determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is therefore ordered submitted without oral argument. Petitioner Phouc H. Nguyen, a fe deral prisoner, appeals the di strict court’s denial of his 28 U.S.C. § 2255 habeas m otion. Petitioner argues that his conviction under 18 U.S.C. §924(c)(1)—based on his H obbs Act robbery as the predica te crime of violence—

* This order and judgment is not binding preceden t, except unde r the doctrines of law of the case, res judicata, and collateral esto ppel. It may be cited, however, for its persuasive value consistent with Fed. R . App. P. 32.1 and 10th Ci r. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 31, 2018

Elisabeth A. Shumaker Clerk of Court2 is unconstitutional in light of Johnson v. United States , 135 S. Ct. 2551 ( 2015). For the following reasons, we a ffirm the district court’s denial of his habeas motion. In 1996, Petitioner was convict ed of (1) interference with com merce by means of robbery in violation of the Hobb s Act, 18 U.S.C. § 1951, and ai ding and abetting the robbery in violation of 18 U.S.C. § 2; and (2) carrying and usi ng a firearm during and in relation to the robbery in viola tion of 18 U.S.C. §924(c)(1), c ausing the death of a person through the use of a firearm, w hich constitutes murder under 18 U.S.C. §§ 924(j)(1) & 1111(a), and aiding and abetting the killing of a person in vio lation of 18 U.S.C. § 2. Petitioner was sentenced to 240 m onths of imprisonment on the f irst count and life imprisonment without the possi bility of release on the second c ount, to be served concurrently. In relevant part, § 924(c)(1)(A) provides that: [A]ny person who, during and in relation to any crime of violence . . . for which the person may be prosecute d in a court of the United Sta tes, uses or carries a firearm, or who, in furt herance of any such crime, po ssess a firearm, shall, in addition to t he punishment provided for such crime of violence . . . (ii) if the firearm is brandished, be sentenced to a term of im prisonment of not less than 7 years . . . . §924(c)(1)(A) (emphasis added). Und er this section, a “crime o f violence” refers to a felony offense that “(A) has as an element the use, attempted u se, or threatened use of physical force against the pers on or property of another [eleme nts or use of force clause], or (B) that by its nature, involve s a substantial risk that phy sical force against the person or property of anoth er may be used in the course of committing the offense [residual clause].” 18 U.S.C. § 924(c)(3).3 In his motion, Petitioner argues that his Hobbs Act robbery co uld only have been considered a crime of violence under § 924(c)(3)’s residual cla use, which he contends is unconstitutionally vague under Johnson. Johnson invalidated the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B), which cont ains similar language to § 924(c)(3)(B), defining a “vio lent felony” as a crime that “involves conduct that presents a serious potential risk of physical injury to another .” 18 U.S.C. § 924(e)(2)(B)(ii). Johnson ’s holding was made retroactiv e for all cases on collateral review. See Welch v. United States , 136 S. Ct. 1257, 1265 (2016); see also 28 U.S.C. § 2255(f)(3). Petitioner filed a pro se § 2255 mo tion to vacate his sentence within one year of
Johnson . The district court denied the motion as untimely, holding th at Johnson was not applicable to § 924(c)(3). Altern atively, the district court d enied relief on the merits, concluding that Petitioner’s Hob bs Act robbery was a crime of v iolence under § 924(c)(3)(A) and declining to reach the constitutionality of § 924(c)(3)(B). The district court granted Petitioner’s request for a COA. In a § 2255 appeal, we “review the district court’s findings of fact for clear error and its conclusions o f law de novo.” United States v. Barrett , 797 F.3d 1207, 1213 (10th Cir. 2015) (quotation marks omitte d). The gravamen of Petition er’s argument is that his sentence should be vacated becaus e § 924(c)(3)(B)’s residual cl ause is unconstitutionally vague under Johnson , and because his Hobbs Act robbery can only be a crime of viol ence under this unconstitutional porti on of the statute. This court has recently addressed both arguments. First, in United States v. Salas , 889 F.3d 681, 684-86 ( 10th Cir. 2018), we4 held that § 924(c)(3)(B)’s [resi dual clause] definition of “cri me of violence” is unconstitutional under Sessions v. Dimaya , 138 S. Ct. 1204, 1215-16 (2018). Dimaya extended Johnson’s reasoning to hold that this same definition of “crime of viole nce” in 18 U.S.C. § 16(b) was uncons titutionally vague. 138 S. Ct. at 1213-16; see also United States v. Dubarry , 2018 WL 3342275 (10th Cir., July 9, 2018); United States v. Pasley , 2018 WL 3434458 (10th Cir., July 16, 2018). Based on this case law, Petitioner’s motion raising a Johnson claim was, in fact, timely. See United States v. Snyder , 871 F.3d 1122, 1126 (10th Cir. 2017) (“[I ]n order to be tim ely under § 2255(f) (3), a § 2255 motion need only ‘invoke’ the newly recogniz ed right, regardless of whether or not the facts of the record ultimately support the movant’s claim.”). As Petitioner accurately asserts, his Hobbs Act robbery conviction onl y qualifies as a crime of viole nce if it does so under the elements clause in § 924(c)(3)(A). Having overcome th is would-be procedural bar, Petitioner’s moti on nevertheless fails on the merits of his claim that Hobbs Act robbery is not a crime of violence under the elements clause of § 924(c )(3)(A). Applying the categorica l approach, this court recently held that the force elem ent of a Hobbs Act robbery “ca n only be satisfied by violent force,” and, therefore, Hobbs Act robbery is categorically a crime of violence under the elements clause of § 924(c)(3)(A). United States v. Melgar-Cabrera , 892 F.3d 1053, 1064-66 (10th Ci r. 2018) (relying on United States v. Ontiveros , 875 F.3d 533 (10th Cir. 2017)). Moreover, Petiti oner has not pointed to, no r have we found, anything in the record suggesting that t he sentencing court relied on th e residual clause of § 924(c)(3)(B) in imposing his sentence. See United States v. Washington , 890 F.3d 891,5 896 (2018) (“[T]he bur den is on the defendant to show by a prep onderance of the evidence— i.e. , that it is more likely th an not—his claim relies on Johnson .”). We accordingly see no error in th e district court’s determinati on that Petitioner’s Hobbs Act robbery conviction was a crime of violence under § 92 4(c)(3)(A)’s elements clause. We therefore AFFIRM the denial of Petiti oner’s § 2255 motion.

ENTERED FOR THE COURT

Monroe G. McKay Circuit Judge