Zinda v. USA
Filing
23
MEMORANDUM DECISION AND ORDER DENYING2255 MOTION - The Court Denies Mr. Zinda's 2255 motion and also denies a certificate of appealability. Signed by Judge Clark Waddoups on 12/19/22. (jrj)
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IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
KENNETH WAYNE ZINDA,
Petitioner,
v.
MEMORANDUM DECISION AND
ORDER DENYING
§ 2255 MOTION
Case No. 2:16-cv-470
UNITED STATES OF AMERICA,
Judge Clark Waddoups
Respondent.
“Petitioner Kenneth Zinda filed a § 2255 motion to challenge his § 924(c) conviction based
on the Supreme Court’s decision in United States v. Johnson, 135 S. Ct. 2551 (2015).” Supp.
Brief, at 1 (ECF No. 17). The case was stayed to allow sufficient time for development of the law
following the Johnson decision. On March 23, 2022, the court ordered that “this case should
proceed to resolution.” Dkt. Text Order (ECF No. 16). Thereafter, Mr. Zinda filed supplemental
briefing in support of his motion. For the reasons stated below, the court denies Mr. Zinda’s
motion.
I.
PETITIONER’S ARGUMENTS
Petitioner offers three main arguments as to why Hobbs Act Robbery is not a categorical
crime of violence. Each argument is stated below.
A.
Hobbs Act Robbery May Be Committed Without Physical Force Against
Intangible Property
“Mr. Zinda was convicted [of] violating 18 U.S.C. § 924(c) in connection [with] a Hobbs
Act robbery.” Supp. Brief, at 1–2 (ECF No. 17). Section 924(c)(3)(A) is the applicable subsection
for this motion. It provides that a “‘crime of violence’ means an offense that is a felony and . . .
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has as an element the use, attempted use, or threatened use of physical force against the person or
property of another.” 18 U.S.C. § 924(c)(3)(A).
Mr. Zinda contends that a Hobbs Act robbery cannot be a crime of violence under the
categorical approach because the “crime can be accomplished without the use of violent, physical
force against person or property.” Supp. Brief, at 3. In particular, a Hobbs Act robbery can be
committed with a threat of injury to property, which threat, Mr. Zinda contends, can be done
“without the use of physical force.” Id. He provides an example that “Hobbs Act robbery can be
accomplished by using or threatening harm to intangible property, which does not require the use
of any physical force.” Id. Mr. Zinda acknowledges that a Tenth Circuit case has already intimated
that such a threat is not a Hobbs Act robbery, but a Hobbs Act extortion. Id. at 4 (citing United
States v. Dubarry, 741 F. App’x 568, 570 (10th Cir. 2018)). He contends, however, that the case
is not binding and should not be followed. Id. Instead, he asserts the Tenth Circuit Criminal
Pattern Jury Instructions should be followed. Id. at 4–6.
B.
Hobbs Act Robbery May Be Committed with Non-Violent Physical Force
Mr. Zinda further contends that even if “physical force is used or threatened, property can
be harmed with physical force that is not violent.” Supp. Brief, at 3, 7 (emphasis in original). In
support, he cites United States v. Bowen, 936 F.3d 1091, 1102, 1106–08 (10th Cir. 2019), which
involved a witness retaliation conviction. The Bowen court noted that threatening to “spray-paint
a witness’s car” does not require the use of violent force; hence, the crime was not categorically a
crime of violence. Id. at 1107–08. Mr. Zinda contends Bowen should be applied to Hobbs Act
robbery as well. Supp. Brief, at 7.
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C.
Melgar-Cabrera Did Not Address the Above Arguments, and Therefore Is Not
Controlling
Finally, Mr. Zinda asserts United States v. Melgar-Cabrera, 892 F.3d 1053 (10th Cir. 2018)
does not foreclose his arguments. In Melgar-Cabrera, the Tenth Circuit held that a Hobbs Act
robbery is categorically a crime of violence. Id. at 1060, 1066 (affirming district court’s decision
that Hobbs Act robbery “categorically constitute[s] a crime of violence”). Mr. Zinda contends,
however, the Court only focused on threats “directed at a person.” Supp. Brief, at 8. Because the
Court did not consider “a threat directed at property,” he contends Melgar-Cabrera is not
controlling and “this court is free to decide the merits of Mr. Zinda’s property-based arguments.”
Id. at 8, 11.
II.
RULING IN BAKER IS BINDING AND REJECTS THE ABOVE ARGUMENTS
After Mr. Zinda submitted his supplemental brief, the Tenth Circuit issued United States
v. Baker, 49 F.4th 1348 (10th Cir. 2022). The defendant “appeal[ed] from the district court’s
denial of his second or successive motion pursuant to 28 U.S.C. § 2255.” Id. at 1350. The Tenth
Circuit granted a “certificate of appealability (“COA”) on the following issue:”
In light of the contention that Hobbs Act robbery can be
accomplished by threatening injury to intangible property, was
United States v. Melgar-Cabrera, 892 F.3d 1053, 1064–66 (10th
Cir. 2018) (holding that Hobbs Act robbery qualifies as a crime of
violence under the elements clause of § 924(c)(3)(A)), wrongly
decided because Hobbs Act robbery would not qualify as a crime of
violence either categorically under § 924(c)(3)(A) or under §
924(c)(3)(B) after United States v. Davis?
Id. at 1350–51 (emphasis added) (alteration omitted). Based on the defendant’s subsequent
briefing, the Court stated the defendant had sought to expand the COA because he,
effectively attempts: (1) to argue that Hobbs Act robbery, when
accomplished through threats to injure any property—tangible or
intangible—is not a crime of violence under § 924(c)(3)(A), and (2)
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our decision in United States v. Melgar-Cabrera, where we held
Hobbs Act robbery categorically qualifies as a crime of violence
under § 924(c)(3)(A) does not bar his argument because it is
inapposite.
Id. at 1351 (emphasis in original) (internal citation omitted). The briefing changed the focus from
intangible property to any property, and it also no longer “challenge[d] the vitality of MelgarCabrera.” Id. at 1355–56. Instead, the defendant modified his position to state the case was
merely inapposite. Id. at 1356.
The Tenth Circuit rejected both the original COA issue and the reframed issue and held
that Melgar-Cabrera applied to “every act—including the least of the acts—criminalized by
Hobbs Act robbery.” Id. The Court cited to published decisions it had issued after MelgarCabrera and stated the decisions “have left no doubt regarding the categorical scope of [its]
holding in Melgar-Cabrera.” Id. at 1356–57. Additionally, the Court stated the defendant’s
“reasoning goes, because Melgar-Cabrera did not consider the possibility that Hobbs Act robbery
can be accomplished through threats or ‘fear of injury’ directed towards intangible or tangible
property, we can hold that Hobbs Act robberies committed by such threats are not qualifying
crimes of violence under § 924(c)(3)(A).” Id. at 1358. That is the same reasoning Mr. Zinda has
argued in this case. The Court, however, “reject[ed] this line of reasoning” in Baker. Id.
Moreover, it rejected the argument that Bowen demonstrates Hobbs Act robbery should not be
classified as a crime of violence. Id. at 1359.
The Baker decision is binding precedent. Because the Tenth Circuit has rejected the same
arguments Mr. Zinda makes here, this court denies Mr. Zinda’s § 2255 motion.
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