United States of America v. John Allen Newton

NOT FOR PUBLICATION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
Argued and Submitted September 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 motion to vacate, set aside, or correct his sentence. He challenges
his two convictions for use of a firearm during a crime 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. Dominguez, United States District Judge for
the District of Puerto Rico, sitting by designation.

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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 committed his offenses in January and February 1994 is categorically a
“crime 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
amended version of the federal carjacking statute is categorically a “crime of
violence” under § 924(c)(3)(A)’s definition of a “crime of violence” as a felony
that “has as an element the use, attempted use, or threatened use of physical force
against the person or property of another.” 876 F.3d at 1257. It concluded that the
“by intimidation” requirement of the carjacking statute “necessarily entails the
threatened use of violent physical force.” Id. Similarly, Watson held that federal
bank robbery, 18 U.S.C. § 2113(a), which also proscribes robbery “by force and
violence, or by intimidation,” is categorically a crime of violence under
§ 924(c)(3)(A)’s definition. 881 F.3d at 785.
The federal carjacking statute in effect at the time Newton committed his
offenses in January and February 1994 is not meaningfully 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 amended version in
2

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Gutierrez except that the amended version substitutes an “intent to cause death or
serious bodily harm” element for a “possessing a firearm” element. See Violent
Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322,
§ 60003(a)(14), 108 Stat. 1796, 1970 (Sept. 13, 1994). Newton attempts to
distinguish Gutierrez because the version of the carjacking statute applicable to
him lacks this mens rea requirement. But Watson determined that difference to be
immaterial 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 “crime
of violence.” 881 F.3d at 785. We are bound by those holdings.1
AFFIRMED.
1Because we may 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 motion was timely, as that question is not
jurisdictional. See United States v. Battles, 362 F.3d 1195, 1196 (9th Cir. 2004)
(holding that one-year limitations period on filing of § 2255 motions is subject to
equitable tolling); United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1631 (2015)
(concluding that if a limitations period is “jurisdictional,” it is not subject to
equitable tolling).
3

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