United States of America v. Phouc H. Nguyen

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PHOUC H. NGUYEN,
Defendant - Appellant.
No. 20-3217
(D.C. No. 6:20-CV-01185-JTM)
(D. Kan.)
_________________________________
ORDER
_________________________________
Before BACHARACH, MURPHY, and CARSON, Circuit Judges.
_________________________________
This case arises from Mr. Phouc Nguyen’s convictions on charges
including Hobbs Act robbery and carrying a firearm in connection with a
crime of violence. See 18 U.S.C. § 924(c)(1). 1
In 2016, Mr. Nguyen moved under 28 U.S.C. § 2255 to vacate the
conviction for carrying a firearm in connection with a crime of violence,
arguing that Hobbs Act robbery did not constitute a crime of violence. The
district court denied the motion and our court affirmed, classifying Hobbs
1 Mr. Nguyen was also convicted of aiding and abetting Hobbs Act
robbery, causing the death of a person through the use of a firearm, and
aiding and abetting the killing of a person.
FILED
United States Court of Appeals
Tenth Circuit
April 21, 2021
Christopher M. Wolpert
Clerk of Court
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Act robbery as a crime of violence. United States v. Nguyen, 744 F. App’x
550 (10th Cir. 2018) (unpublished).
In 2020, Mr. Nguyen filed a second § 2255 motion, arguing again
that Hobbs Act robbery does not constitute a crime of violence. 2 But the
district court again denied Mr. Nguyen’s § 2255 motion, and Mr. Nguyen
wants to appeal.
1. Standard for a Certificate of Appealability
In order to appeal, Mr. Nguyen needs a certificate of appealability.
28 U.S.C. § 2253(c)(1)(B). To obtain this certificate, Mr. Nguyen must
make “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). Mr. Nguyen would meet this standard only if “jurists
of reason could disagree with the district court’s resolution of his
constitutional claims or . . . jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003).
In a § 2255 appeal, this court “review[s] the district court’s findings
of fact for clear error and its conclusions of law de novo.” United States v.
Barrett, 797 F.3d 1207, 1213 (10th Cir. 2015) (quoting United States v.
Rushin, 642 F.3d 1299, 1302 (10th Cir. 2011)).
2 Our court authorized the filing of a second § 2255 motion.
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2. Mr. Nguyen’s Argument for a Certificate of Appealability
Mr. Nguyen argues that Hobbs Act robbery does not constitute a
crime of violence under 18 U.S.C. § 924(c)(3). He bases this argument on
the Supreme Court’s recent opinion in United States v. Davis, 139 S. Ct.
2319 (2019). In our view, however, any reasonable jurist would reject this
argument because Hobbs Act robbery clearly satisfies the elements clause
in § 924(c)(3)(A).
In Davis, the Court held that the section’s residual clause
(§ 924(c)(3)(B)) is unconstitutionally vague. Id. at 2336. But the Supreme
Court did not invalidate the elements clause (§ 924(c)(3)(A)), which
classifies offenses as crimes of violence when an element involves the use,
attempted use, or threat of physical force as crimes of violence.
In Mr. Nguyen’s case, the district court invoked the elements clause,
not the residual clause, stating that “Hobbs Act robbery (as opposed to
mere conspiracy) is a crime of violence within the meaning of 18 U.S.C.
§ 924(c)(3)(A).” United States v. Nguyen, No. 94-10129-JTM, 2020 WL
4785427, at *1 (D. Kan. Aug. 18, 2020) (quoting United States v. Toles,
No. 99-10086-02-JTM, 2020 WL 1536588, at *1 (D. Kan. Mar. 31, 2020)).
This conclusion is unassailable.
In 2018, this Court followed the same reasoning and affirmed the
denial of Mr. Nguyen’s § 2255 motion. We explained that our court had
“recently held that the force element of a Hobbs Act robbery ‘[could] only
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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. Nguyen, 744 F. App’x 550, 552 (10th Cir.
2018) (unpublished) (quoting United States v. Melgar-Cabrera, 892 F.3d
1053, 1065 (10th Cir. 2018)). 3 Because Mr. Nguyen was convicted of a
crime of violence under the elements clause, the Supreme Court’s
invalidation of the residual clause does not help him. So Mr. Nguyen’s
argument is not reasonably debatable.
3. Dismissal is required.
Because Mr. Nguyen’s argument is not reasonably debatable, we
decline to issue a certificate of appealability. Given the absence of a
certificate, we dismiss the matter.
Entered for the Court
Robert E. Bacharach
Circuit Judge
3 Mr. Nguyen also points to case law from other circuits. But every
circuit to consider the question has agreed that Hobbs Act robbery
categorically constitutes a crime of violence under the elements clause.
See, e.g., United States v. Walker, 990 F.3d 316, 326 (3d Cir. 2021);
United States v. Dominguez, 954 F.3d 1251, 1260 (9th Cir. 2020)
(collecting cases).
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