United States v. 2020-07-17 | 16-17241 | USA V. OTIS MOBLEY | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

OTIS MOBLEY,

Defendant-Appellant.

No. 16-17241

D.C. Nos. 4:16-cv-03588-YGR
4:12-cr-00235-YGR-2

MEMORANDUM
*

Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding

Submitted July 14, 2020
**

San Francisco, California

Before: TALLMAN and HUNSAKER, Circuit Judges, and SILVER,
***
District
Judge.

Otis Mobley appeals the district court’s denial of his motion under 28 U.S.C.
§ 2255 to set aside his sentence. We have jurisdiction under 28 U.S.C. § 2253(a)

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

**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

***
The Honorable Roslyn O. Silver, United States District Judge for the
District of Arizona, sitting by designation.
FILED

JUL 17 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2
and 28 U.S.C. § 1291, and we dismiss the appeal.
Mobley pleaded guilty to violations of 18 U.S.C. §§ 111(b) and 924(c) after
attempting to rob a federal agent at gunpoint during a grenade-launcher-sale gone
wrong. See United States v. Mobley, 803 F.3d 1105, 1107 (9th Cir. 2015). He was
sentenced to 114 months’ imprisonment: 30 months for § 111(b) and 84 months
consecutive for § 924(c). Mobley moved under § 2255 to vacate his sentence,
contending that § 111(b) cannot constitute a “crime of violence” under § 924(c) in
light of the Supreme Court’s decision in United States v. Davis, 139 S. Ct. 2319
(2019), which struck down § 924(c)(3)(B) (the “residual clause”) as
unconstitutionally vague. The government claims Mobley’s sentence can be
justified under § 924(c)(3)(A) (the “elements clause”) which defines as a crime of
violence any felony that “has as an element the use, attempted use, or threatened
use of physical force against the person or property of another.”
Mobley’s collateral-attack waiver is valid, but it does not prevent us from
looking at the merits of Mobley’s petition to see if his sentence is “illegal” after
Davis. See United States v. Torres, 828 F.3d 1113, 1125 (9th Cir. 2016). The
waiver question thus collapses into the merits: if Mobley’s sentence is illegal, his
waiver is no bar to the suit; if his sentence remains valid, the waiver bars the
petition. The government concedes this point in its brief.
We review the district court’s denial of Mobley’s § 2255 petition de novo,

3
see United States v. Fultz, 923 F.3d 1192, 1194 (9th Cir. 2019), along with its
determination that a crime is categorically violent, see United States v. Begay, 934
F.3d 1033, 1037 (9th Cir. 2019). The legality of Mobley’s sentence is controlled
by United States v. Juvenile Female, 566 F.3d 943 (9th Cir. 2009). We held there
that § 111(b) is categorically violent; that is, that every violation of § 111(b)
necessarily entails the use of force against a person, or the threat or attempt of the
same. Id. at 947–48. That holding binds us. See United States v. Shelby, 939 F.3d
975, 978 (9th Cir. 2019) (later panel may decline to apply prior holding only if it is
“clearly irreconcilable with a subsequent Supreme Court decision”) (internal
quotation marks omitted).
Because § 111(b) is categorically violent, Mobley’s sentence is justified
under § 924(c)’s elements clause. We therefore enforce his collateral-attack
waiver.
DISMISSED.