Esteban v. USA

Filing 5

ORDER DENYING PETITIONERS MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY AND GRANTING A CERTIFICATE OF APPEALABILITY. "The court DENIES the Motion for § 2255 relief and GRANTS a c ertificate of appealability." Signed by JUDGE SUSAN OKI MOLLWAY on 10/31/17. (cib, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA,

)
)
Plaintiff-Respondent, )
)
vs.
)
)
TED S. ESTEBAN,
)
Defendant-Petitioner. )
_____________________________ )

Cr. No. 02-00540 SOM
Civ. No. 16-00228 SOM
ORDER DENYING PETITIONER’S
MOTION UNDER 28 U.S.C. § 2255
TO VACATE, SET ASIDE, OR
CORRECT SENTENCE BY A PERSON
IN FEDERAL CUSTODY AND
GRANTING A CERTIFICATE OF
APPEALABILITY

ORDER DENYING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255
TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN
FEDERAL CUSTODY AND GRANTING A CERTIFICATE OF APPEALABILITY
I.

INTRODUCTION.
Petitioner Ted Esteban pled guilty to multiple counts

of Hobbs Act robbery in violation of 18 U.S.C. § 1951(a), as
well as to carrying a firearm during the commission of a violent
crime in violation of 18 U.S.C. § 924(c).

For the robbery

charges, Esteban was sentenced to 120 months in custody, which
was a Guideline sentence.

The firearm charge carried a

mandatory minimum sentence of ten years, which was statutorily
required to run consecutively to the sentence on the other
charges.

Pursuant to 28 U.S.C. § 2255, Esteban now argues that

his conviction under § 924(c) must be vacated given what he says
is the unconstitutionality of § 924(c)’s residual clause.
court denies Esteban’s petition, concluding that, under

The

controlling Ninth Circuit authorities, Esteban’s conviction is
sustainable under § 924(c)’s force/elements clause.
II.

BACKGROUND.
A. Relevant Statutory Provisions.
Esteban challenges his conviction under 18 U.S.C.

§ 924(c)(1), which provides:
[Generally,] any person who, during and in
relation to any crime of violence . . . uses
or carries a firearm, or who, in furtherance
of any such crime, possesses a firearm,
shall, in addition to the punishment
provided for such crime of violence . . .
[i]f the firearm possessed . . . [is a]
short-barreled shotgun . . . be sentenced to
a term of imprisonment of not less than 10
years.
Id. (emphasis added).
“Crime of violence,” in turn, is defined at 18 U.S.C.
§ 924(c)(3), a provision that contains two clauses (a
force/elements clause and a residual clause):
[T]he term “crime of violence” means an
offense that is a felony and-(A)

has as an element the use, attempted
use, or threatened use of physical
force against the person or property of
another [the force/elements clause], or

(B)

that by its nature, involves a
substantial risk that physical force
against the person or property of
another may be used in the course of
committing the offense [the residual
clause].

Id.
2

B.

Factual Background.

Esteban went on a crime spree in late 2002.
On November 30, 2002, Esteban, holding what seemed to
be a silver-colored handgun (but what in reality was a highquality replica), went to Reynolds Recycling in Waipahu, Hawaii
and told the store clerk, “I need your money,” which caused the
clerk to fear for his life.
49-2, PageID # 272.
register.

ECF 49-1, PageID #s 240, 242; ECF

Esteban got about $200 from the cash

ECF 49-1, PageID # 240; ECF 49-2, PageID # 272.

Esteban then fled the store in a gray car.

ECF 49-1, PageID

# 240; ECF 49-2, PageID # 272.
A few days later, on December 4, 2002, Esteban went to
Baskin Robbins in Waipahu, Hawaii, again brandishing the silver
replica handgun.
# 272.

ECF 49-1, PageID # 240; ECF 49-2, PageID

Esteban pointed the gun at a sales clerk and stated, “I

don’t want to hurt you, just give me the money.”
PageID # 240; ECF 49-2, PageID # 272.

ECF 49-1,

The clerk complied,

giving Esteban about $200 from the register.

ECF 49-1, PageID

# 240; ECF 49-2, PageID # 272.
The next day, on December 5, 2002, Esteban and a
coconspirator went to Video Warehouse in Aiea, Hawaii.
1, PageID # 240; ECF 49-2, PageID #s 272-73.

ECF 49-

Esteban had the

replica handgun, and his coconspirator carried a (genuine)

3

sawed-off shotgun.
#s 272-73.

ECF 49-1, PageID # 240; ECF 49-2, PageID

Both individuals had their faces covered.

PageID # 240; ECF 49-2, PageID # 272-73.

ECF 49-1,

The coconspirator

pointed the shotgun at a store employee while Esteban
instructed, “Give me all your money.”
see also ECF 49-1, PageID # 240.

ECF 49-2, PageID # 273;

The employee complied, handing

over a few hundred dollars from the register.
# 241; ECF 49-2, PageID # 273.

ECF 49-1, PageID

The pair took the money, got car

keys from a customer in the store, and then fled in the
customer’s car.

ECF 49-1, PageID # 240-41; ECF 49-2, PageID

# 273.
Three days later, on December 8, 2002, Esteban walked
into Domino’s Pizza in Ewa Beach, Hawaii, pointed his replica
handgun at the cashier and the manager, and stated, “I want your
money, give me all your money.”
2, PageID # 273.
cash register.

ECF 49-1, PageID # 241; ECF 49-

The manager gave Esteban around $100 from the
ECF 49-1, PageID # 241; ECF 49-2, PageID # 273.

The next day, on December 9, 2002, Esteban entered
Aloha Island Mini Mart in Waipahu, Hawaii, brandished the silver
replica handgun, and demanded money from the store’s cashier.
ECF 49-1, PageID # 241; ECF 49-2, PageID # 274.
handed Esteban $46 from the store register.
# 241; ECF 49-2, PageID # 274.

4

The cashier

ECF 49-1, PageID

Two days later, on December 11, 2002, Esteban, with a
shirt over his face, walked into the Salvation Army store in
Waipahu, Hawaii, holding a (genuine) sawed-off shotgun.
1, PageID # 241; ECF 49-2, PageID # 274.

Esteban pointed the

shotgun at the manager/cashier and demanded money.
PageID # 241; ECF 49-2, PageID # 274.

ECF 49-1,

Esteban got about $244

from the cash register and fled the store.
# 241; ECF 49-2, PageID # 274.

ECF 49-

ECF 49-1, PageID

All of the businesses robbed by

Esteban were engaged in interstate commerce.

See ECF 49-1,

PageID # 240-41; ECF 49-2, PageID #s 272-74.
As the various robberies took place, the Honolulu
Police Department began investigating Esteban, then began
actively looking for him.
PageID # 274.

ECF 49-1, PageID # 241; ECF 49-2,

On December 12, 2002, Honolulu Police Department

officers spotted Esteban at the Chevron gas station in Waipahu,
Hawaii.

The officers got out of their cruiser to approach him.

ECF 49-1, PageID #s 241-42; ECF 49-2, PageID #s 274-75.

Esteban

saw the officers and fled on foot, throwing away a large black
bag during the chase.
# 274.

ECF 49-1, PageID # 241; ECF 49-2, PageID

The officers caught and arrested Esteban and found a

sawed-off shotgun in the bag, which Esteban later admitted was
his.

ECF 49-1, PageID # 241; ECF 49-2, PageID # 274.

In an

unrelated case, the officers also recovered the silver replica

5

handgun, which Esteban admitted he had used during the
robberies.

ECF 49-1, PageID # 241; ECF 49-2, PageID # 275.
A nine-count Indictment was filed against Esteban.

ECF 1.

Counts 1 to 7 were six Hobbs Act robbery counts and a

conspiracy count, in violation of 18 U.S.C. § 1951(a).
at PageID #s 1-6.

See id.

Counts 8 and 9 were for using and carrying

firearms during crimes of violence, in violation of 18 U.S.C.
§ 924(c).

See id. at PageID # 6.

pursuant to a plea agreement.
49-2, PageID # 270.

Count 8 was later dismissed

See ECF 49-1, PageID # 239; ECF

Count 9, which Esteban is challenging here,

indicated that Esteban “did knowingly and intentionally use and
carry a firearm that was a short-barreled shotgun . . . during
and in relation to a crime of violence,” i.e., his robbery of
Aloha Island Mini Mart.

ECF 1, PageID #s 6-7.

On April 14, 2003, Esteban pled guilty to Counts 1, 2,
3, 4, 5, 6, 7, and 9 of the Indictment.

ECF 49-1, PageID # 239.

As part of his plea agreement, Esteban also agreed to
waive[] his right to challenge his sentence
or the manner in which it was determined in
any collateral attack, including, but not
limited to, a motion brought under [28
U.S.C. § 2255], except that defendant may
make such a challenge . . . based on a claim
or ineffective assistance of counsel . . .
[or if] the Court in imposing [the] sentence
departs . . . upward form the guideline
range determined by the Court to be
applicable.

6

ECF 49-2, PageID # 279.

During the plea colloquy, Esteban told

the court that he understood that, in accepting the plea, he was
waiving his right to bring a collateral challenge to his
sentence except on the ground of ineffective assistance of
counsel or in the event of an upward departure.

See ECF 49-4,

PageID # 301.
Esteban’s sentence was calculated under the 2002
Guidelines and the Supplement Manual that became effective on
April 30, 2003.

ECF 49-1, PageID # 243.

According to his

Presentence Investigation Report (“PSR”), Esteban’s Guideline
range for Counts 1 to 7 was 100 to 125 months (offense level 27,
criminal history category IV).

Id. at PageID #s 248, 252, 255.

For Count 9, the firearms count, the mandatory minimum sentence
under 18 U.S.C. § 924(c) was a consecutive sentence of 10 years.
Id. at PageID # 248.

Neither party objected to the PSR’s

Guideline calculation or statements regarding statutory
requirements.

See ECF 49-1, PageID #s 258-59.

On August 14, 2003, the court sentenced Esteban to
twenty years of incarceration: 120-month sentences for each of
Counts 1 to 7, with the sentences for those counts running
concurrently, plus 120 months on Count 9, running consecutively
to the sentences for Counts 1 to 7.
# 17.

ECF 29; ECF 31, PageID

The court also imposed concurrent 3-year terms of

supervised release on all counts.
7

ECF 29; ECF 31, PageID # 18.

Judgment was entered on August 27, 2003.
not appeal.

ECF 31.

Esteban did

See ECF 49, PageID # 227.

Thirteen years later, on May 10, 2016, Esteban filed a
§ 2255 motion claiming that his “Count 9 conviction and sentence
are unconstitutional due to Johnson v. U.S., 135 S.Ct. 2551
(2015).”

ECF 39, PageID # 43.

Esteban explained:

The petitioner received a 120-month
consecutive sentence on Count 9 for a
violation of 18 U.S.C. 924(c). Count 7’s
Hobbs Act robbery served as the predicate
crime of violence for the petitioner’s
924(c) conviction under Count 9. Welch v.
United States, 2016 WL 1551144 (2016),
Johnson v. United States, 135 S.Ct. 2551
(2015), Dimaya v. Lynch, 803 F.3d 1110 (9th
Cir. 2015), and Descamps v. United States
133 S.Ct. 2276 (2013), instruct that only
the residual clause could have lawfully
authorized counting a Hobbs Act robbery as a
924(c) crime of violence, because the old
rule as the Supreme Court has “always
understood it” (Descamps, 133 S.Ct. at 2285)
did and does not lawfully allow using the
elements clause to do so. Johnson’s
retroactive new substantive rule,
accordingly, nullif[i]es the only legal
basis upon which Hobbs Act robbery could
predicate a 924(c) charge, both now and
then, when the petitioner was convicted and
sentenced. The petitioner is thus actually
innocent of violating 924(c).
ECF 39, PageID # 43.
The § 2255 motion also said that Esteban “did not
appeal or raise this issue” beforehand because the “Johnson
claim was not ripe until the Supreme Court decided Johnson v.
United States, 135 S.Ct. 2551 (June 26, 2015).”
8

ECF 39, PageID

# 44; see also id. at PageID # 49.

The § 2255 motion further

noted that it was timely under 29 U.S.C. § 2253(f)(3):
[F]or the petitioner relies on a right that
the Supreme Court initially recognized in
Johnson v. United States, 135 S.Ct. 2551
(June 26, 2015), which the Supreme Court
acknowledged in Welch v. United States, 2016
WL 1551144 (Apr. 18, 2016), to be
retroactively applicable to cases on
collateral review.
ECF 39, PageID # 51.
In a Memorandum in Support of § 2255 Motion
(“Memorandum”) filed the same day, Esteban “acknowledge[d] that
pre-Johnson/Descamps [Ninth Circuit] cases hold [that] robbery
(including Hobbs Act robbery) qualifies categorically under the
elements clause” of § 924(c).

ECF 41, PageID # 75 (citing

United States v. Mendez, 992 F.2d 1488, 1491 (9th Cir. 1993),
and United States v. Selfa, 918 F.2d 749, 751-52 (9th Cir.
1990)).

Esteban said, however, that the Ninth Circuit’s

reasoning in these cases was “plainly irreconcilable with what
the elements clause narrowly requires.”

Id.

Esteban urged this

court to “revisit” the Ninth Circuit’s Hobbs Act holdings and
declare that “a Hobbs Act robbery is not a match [under
§ 924(c)’s] elements clause.”

ECF 41, PageID #s 77, 78 (citing

Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc)).
Esteban also filed a Motion for Release on Bail
requesting his immediate release.

9

ECF 40.

Esteban pointed out

that, absent the ten-year consecutive sentence on the § 924(c)
count, he would have been released by the time he filed his
§ 2255 motion.

See ECF 41, PageID # 65.

On June 24, 2016, the United States filed a Memorandum
in Opposition.

ECF 49.

The United States argued that Esteban’s

§ 2255 motion was untimely; that his plea agreement waived his
right

to

bring

this

collateral

attack;

that

Johnson

did

not

apply to Guideline cases (even though Esteban’s case was not a
Guideline case); and that, in any event, Hobbs Act robberies are
“crimes of violence” under the force/elements clause of § 924(c)
pursuant to longstanding Ninth Circuit precedent.
#s 228-30.

Id. at PageID

The United States also opposed Esteban’s immediate

release on bail.
On

July

8,

2016,

this

court

Esteban’s Motion for Release on Bail.

held

ECF 50.

a

hearing

on

The Government

conceded at the hearing that the plea agreement did not bar
Esteban’s

§

2255

motion,

because

the

waiver

only

covered

Esteban’s “right to challenge his sentence,” ECF 49-2, PageID
#

279

(emphasis

conviction.

added),

not

right

to

challenge

his

See ECF 50; see also United States v. Spear, 753

F.3d 964, 966 (9th Cir. 2013).
Government’s

his

other

threshold

This court then rejected the

argument--that

Esteban’s

§

2255

motion was untimely--because the motion was filed within one
year of the date that Johnson was decided.
10

See ECF 50.

The

court ultimately denied Esteban’s Motion for Release on Bail,
however, as it determined that Esteban had failed to demonstrate
a likelihood of success on the merits.

See id.

The parties then agreed, and the court ordered, that
further

discussion

of

Esteban’s

and

others’

§

2255

motions

should be stayed pending the Supreme Court’s decision in Beckles
v. United States, 137 S. Ct. 886 (2017).
came

out,

the

supplemental

stay

was

memorandum

lifted,
that

and

1)

ECF 51.
the

After Beckles

Government

preserved

its

filed

a

timeliness

objection in case of appeal; 2) reiterated its position that a
Hobbs

Act

robbery

is

a

“crime

of

violence”

under

the

force/elements clause of 18 U.S.C. § 924(c)(3); and 3) argued
that, even if Hobbs Act robbery were a crime of violence under
the residual clause alone, that clause is constitutional.
ECF 60, PageID #s 354 n.1, 356, 360.

See

Esteban responded with a

supplemental memorandum asking the court to 1) find that Hobbs
Act robbery does not qualify as a crime of violence under the
force/elements clause; and 2) rule that the residual clause is
void.

See ECF 61, PageID # 368.

III.

STANDARD OF REVIEW.
Under 28 U.S.C. § 2255, a court may grant relief to a

federal prisoner who challenges the length of his or her
incarceration on any of the following four grounds: (1) the
sentence was imposed in violation of the Constitution or laws of
11

the United States; (2) the court was without jurisdiction to
impose the sentence; (3) the sentence was in excess of the
maximum authorized by law; or (4) the sentence is otherwise
subject to collateral attack.

28 U.S.C. § 2255(a).

A petitioner must file his or her § 2255 motion within
the one-year statute of limitations set forth in § 2255(f).

A

motion must be filed one year from the latest of four dates: (1)
when the judgment of conviction becomes final; (2) when the
impediment to making a motion created by governmental action in
violation of the Constitution or laws of the United States is
removed, if the movant was prevented from making a motion by
such governmental action; (3) when the right asserted is
initially recognized by the Supreme Court, if that right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; and (4)
when the facts supporting the claim or claims presented could
have been discovered through the exercise of due diligence.

28

U.S.C. § 2255(f).
A § 2255 petition cannot be based on a claim that has
already been disposed of by the underlying criminal judgment and
ensuing appeal.

See Olney v. United States, 433 F.2d 161, 162

(9th Cir. 1970) (“Having raised this point unsuccessfully on
direct appeal, appellant cannot now seek to relitigate it as
part of a petition under § 2255.”).
12

On the other hand, when a

§ 2255 petitioner has not raised an alleged error at trial or on
direct appeal, the petitioner is procedurally barred from
raising the issue in a § 2255 petition if the issue could have
been raised earlier, unless the petitioner can demonstrate both
“cause” for the delay and “prejudice” resulting from the alleged
error.

See United States v. Frady, 456 U.S. 152, 167-68 (1982)

(“[T]o obtain collateral relief based on trial errors to which
no contemporaneous objection was made, a convicted defendant
must show both (1) ‘cause’ excusing his double procedural
default, and (2) ‘actual prejudice’ resulting from the errors of
which he complains.”); accord Davis v. United States, 411 U.S.
233, 242 (1973).

Procedural default, however, “is not a

jurisdictional matter”; instead, it is “normally a ‘defense’
that the State is ‘obligated to raise’ and ‘preserv[e]’ if it is
not to ‘lose the right to assert the defense thereafter.’”
Trest v. Cain, 522 U.S. 87, 89 (1997) (alteration in original)
(quoting Gray v. Netherland, 518 U.S. 152, 166 (1996)); see also
1 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice
and Procedure § 71.7[a] (7th ed. 2016) (explaining that “the
government can assert certain procedural defenses to section
2255 relief” including “waiver” or “procedural default”).
IV.

ANALYSIS.
This court has already ruled that Esteban’s § 2255

motion was timely and that--as the United States has conceded-13

it was not barred by the waiver in his plea agreement.
50.

See ECF

The court now proceeds to the merits.
A.

Hobbs Act Robbery Is a Crime of Violence Under
§ 924(c)’s Force/Elements Clause.

Esteban argues that this court wrongly applied
§ 924(c)’s residual clause in deeming his Hobbs Act robbery a
crime of violence.

See ECF 41, PageID #s 65, 68 (claiming that

“Hobbs Act robbery is not an elements clause crime of violence”
and that “Johnson’s retroactive new substantive rule invalidates
§924(c)’s residual clause” (citing Dimaya v. Lynch, 803 F.3d
1110 (9th Cir. 2015)).

In fact, this court at sentencing did

not specify which clause in the definition of “crime of
violence” it was relying on.
ECF 49-2, PageID #s 248, 255.

See ECF 29; ECF 31, PageID # 16;
The United States argues that

Esteban’s Hobbs Act robbery convictions qualify as “crimes of
violence” under § 924(c)’s force/elements clause, making
Esteban’s attacks on the residual clause unavailing.
55, PageID # 346.

See ECF

The court concludes that Esteban cannot

succeed under § 2255 because, at least in the Ninth Circuit, his
Hobbs Act robbery convictions satisfy § 924(c)’s force/elements
clause.
The force/elements clause of § 924(c)(3) defines a
“crime of violence” to include a felony that “has as an element
the use, attempted use, or threatened use of physical force

14

against the person or property of another.”
§ 924(c)(3)(A).

18 U.S.C.

The Hobbs Act defines “robbery” as “the

unlawful taking or obtaining of personal property from the
person or in the presence of another, against his will, by means
of actual or threatened force, or violence, or fear of injury,
immediate or future, to his person or property.”

18 U.S.C.

§ 1951(b)(1).
The Ninth Circuit has held that Hobbs Act robbery
qualifies as a crime of violence under § 924(c)’s force/elements
clause.

In United States v. Howard, 650 Fed. App’x 466, 468

(9th Cir. 2016), the Ninth Circuit first observed that it had
“previously stated that Hobbs Act ‘robbery indisputably
qualifies as a crime of violence’ under § 924(c).”

Id. (quoting

United States v. Mendez, 992 F.2d 1488, 1491 (9th Cir. 1993)).
The Howard court then rejected the argument that “because Hobbs
Act robbery may be accomplished by putting someone in ‘fear of
injury,’ 18 U.S.C. § 1951(b), it does not necessarily involve
‘the use, attempted use, or threatened use of physical force,’
18 U.S.C. § 924(c)(3)(A).”

Id. at 468.

The Ninth Circuit

declared this argument “foreclosed” by United States v. Selfa,
918 F.2d 749 (9th Cir. 1990), which “held that the analogous
federal bank robbery statute, which may be violated by ‘force
and violence, or by intimidation,’ 18 U.S.C. § 2113(a) (emphasis
added), qualifies as a crime of violence” under a similar
15

force/elements clause.

Id.

The Howard court then reasoned

that, “[b]ecause bank robbery by ‘intimidation’--which is
defined as instilling fear of injury--qualifies as a crime of
violence, Hobbs Act robbery by means of ‘fear of injury’ also
qualifies as a crime of violence.”

Id.

Howard thus

“conclude[d] that Hobbs Act robbery qualifies as a crime of
violence under § 924(c)’s force clause.”

Id. at 468 n.3.

Esteban asks this court to “revisit” the Ninth
Circuit’s decisions and declare that “a Hobbs Act robbery is not
a match” under § 924(c)’s force clause.

ECF 41, PageID #s 77,

78 (citing Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en
banc)).

He claims that this court has the power to do so

because the Ninth Circuit’s cases “fail to account for the
minimal conduct analysis Moncrieffe v. Holder, 569 U.S. 184
(2013), makes clear is required” to deem an offense a crime of
violence.

ECF 61, PageID # 368; see also id. at PageID # 371

(citing Torres v. Lynch, 136 S. Ct. 1619, 1629 (May 19, 2016)).
Regardless of whether this argument has analytical merit, this
court cannot adopt it.
This court is bound by circuit precedent unless
intervening higher authority “is clearly irreconcilable with
[the] prior circuit authority.”
900 (9th Cir. 2003) (en banc).

Miller v. Gammie, 335 F.3d 889,
The Ninth Circuit decided Howard

on June 24, 2016, see 650 Fed. App’x 466, and Esteban identifies
16

no “intervening higher authority” subsequent to Howard and
“irreconcilable” with it, Miller, 335 F.3d at 893.
remains good law.

Howard thus

See McShane v. United States, Civ. No. 16-

00206, 2017 WL 4126983, at *6 (D. Haw. Sept. 18, 2017)
(concluding, on the basis of Howard and Selfa, that “Hobbs Act
Robbery constitute[s] a crime of violence pursuant to the
Element Clause” of § 924(c)).
Esteban suggests that Howard does not control this
case because the Ninth Circuit did not reach the “minimal
conduct” argument that he advances based on Moncrieffe.
61, PageID # 374.

See ECF

Esteban’s argument is based on a footnote in

Howard indicating that the panel “took no position” on the issue
of whether “Hobbs Act robbery may be accomplished through de
minimis use of force.”

650 Fed. App’x at 468 n.1.

Other recent

Ninth Circuit decisions, however, have not limited Howard.
In United States v. Selfa, 918 F.2d 749 (9th Cir.
1990), the Ninth Circuit ruled that all “persons convicted of
robbing a bank ‘by force and violence’ or ‘intimidation’ under
18 U.S.C. § 2113(a) have been convicted of a ‘crime of
violence,”’ because the crime involves the “use, attempted use,
or threatened use of physical force.”

Id. at 751 (quoting

U.S.S.G. § 4B1.2(1)(i) (Nov. 1, 1989 ed.).

The Ninth Circuit

reached that conclusion even though Selfa had insisted that he

17

had “neither harmed nor threatened to harm anyone in any way
during [his] robberies.”

Id.

The Ninth Circuit has broadly reaffirmed Selfa as
recently as this year.

In United States v. Jordan, the Ninth

Circuit observed that “[u]nder our current case law, § 2113(a)
bank robbery categorically qualifies as a ‘crime of violence’
under [the force/elements clause in] § 924(c)(3)(A),” and
intervening authority has not “so clearly displaced our earlier
precedents as to warrant plain error reversal.”

680 F. App’x

634, 635 (9th Cir. 2017) (citing Selfa, 918 F.2d at 751), cert.
denied, No. 16-9589, 2017 WL 2620081 (U.S. Oct. 2, 2017); see
also United States v. Cross, 691 F. App’x 312, 312–13 (9th Cir.
2017) (observing that, per circuit precedent, “unarmed bank
‘intimidation’ under § 2113(a) requires the necessary level of
violent physical force” to constitute a crime of violence, and
“[n]o intervening authority has overruled these precedents”
(citing Selfa, 918 F.2d at 751)); United States v. Pritchard,
692 F. App’x 349, 351-52 (9th Cir. 2017) (same as Cross, for
armed bank robbery).

In so holding, Jordan, Cross, and

Pritchard did not suggest that they “took no position” on the
issue of whether these robberies “may be accomplished through de
minimis use of force,” Howard, 650 Fed. App’x at 468 n.1.

And

although Jordan and Cross dealt with federal bank robbery, not
Hobbs Act robbery, the panel in Howard drew no distinction
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between the “fear of injury” required to prove Hobbs Act robbery
and the “intimidation” required to prove federal bank robbery.
See 650 Fed. App’x at 468 (reasoning that “[b]ecause bank
robbery by ‘intimidation’ . . . qualifies as a crime of
violence, Hobbs Act robbery” does too); see also id. (finding
Howard’s arguments about Hobbs Act robbery “unpersuasive” and
“foreclosed” by Selfa).
In sum, even if Howard alone does not command the
disposition here, Howard plus Cross plus Jordan plus Pritchard
collectively do so.
Without categorizing Hobbs Act as a crime of violence
under § 924(c)’s residual clause, this court relies on circuit
precedent in ruling that federal bank robbery is a crime of
violence under the force/elements clause.

Esteban was

appropriately sentenced under 18 U.S.C. § 924(c)(3)(A).
B.

The Court Issues a Certificate of Appealability.

“The standard for granting a certificate of
appealability is low. All that’s required is that ‘reasonable
jurists could debate’ whether the petition states a ‘valid claim
of the denial of a constitutional right’ and whether the
district court ‘was correct in its procedural ruling.’”

Frost

v. Gilbert, 835 F.3d 883, 888 (9th Cir. 2016) (en banc) (quoting
Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

Given the “low”

standard, this court issues Esteban a certificate of
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appealability as to the issue of whether he was appropriately
sentenced under 18 U.S.C. § 924(c)(3)(A).
V.

CONCLUSION.
For the foregoing reasons, the court DENIES the Motion

for § 2255 relief and GRANTS a certificate of appealability.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 31, 2017.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
United States v. Ted S. Esteban, Civ. No. 16-00228 SOM; ORDER
DENYING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 TO VACATE,
SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY
AND GRANTING A CERTIFICATE OF APPEALABILITY.

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