United States v. Baker

1

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ABASI S. BAKER, Defendant-Appellant.

No. 20-3062

United States Court of Appeals, Tenth Circuit

August 16, 2022

D.C. Nos. 2:16-CV-02460-JWL & 2:11-CR-20020-JWL-1, (D. Kan.)

Before HARTZ, HOLMES, and EID, Circuit Judges.

ORDER AND JUDGMENT ^[*]

Jerome A. Holmes, Circuit Judge

Defendant-Appellant Abasi S. Baker ("Mr. Baker") appeals from the district court's denial of his second or successive motion pursuant to 28 U.S.C. § 2255, challenging his convictions under 18 U.S.C. § 924(c). After we authorized this motion based on the Supreme Court's 2019 decision in United States v. Davis, ___U.S. ___, 139 S.Ct. 2319, 2336 (2019), and the district court denied it, we granted Mr. Baker 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[]?

Order No. 20-3062, at 1 (10th Cir., filed June 10, 2020). Rather than directly address this issue, however, Mr. Baker, in his supplemental opening brief,^[1] requests that we exercise our discretion to "expand" the COA to cover the following, reframed issue:

Is Mr. Baker entitled to § 2255 relief because (a) the offenses relating to Hobbs Act robbery that underlie his § 924(c) convictions could have been committed by a threat to property; (b) the modified categorical approach does not rule out this possibility; (c) this court has no binding precedent that prevents it from holding that Hobbs Act robbery by a threat to property (whether tangible or intangible) does not satisfy § 924(c)'s force [i.e., elements] clause;^[2] and (d) he can show his convictions rest on § 924(c)'s unconstitutional residual clause?

Aplt.'s Suppl. Opening Br. at 2. In other words, Mr. Baker 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) 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), see 892 F.3d 1053, 1060 n.4 (10th Cir. 2018), does not bar his argument because it is inapposite.

Moreover, during the pendency of this appeal, the Supreme Court decided United States v. Taylor, ___ U.S. ___, 142 S.Ct. 2015 (2022), holding that attempted Hobbs Act Robbery is not a crime of violence. We ordered supplemental briefing in light of Taylor, see Order, No. 20-3062, at 1 (10th Cir., filed June 23, 2022), and in Mr. Baker's brief, he requests that we either summarily vacate his § 924(c) conviction charged in Count 11-which is predicated on his conviction for attempted Hobbs Act robbery-or remand the case to the district court to allow him to amend his § 2255 motion to make a Taylor-like argument. Aplt.'s Suppl. Br. Filed Post Taylor at 5.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court's dismissal of Mr. Baker's § 2255 motion, deny Mr. Baker's request to expand the COA and dismiss that portion of this matter, and remand the case to allow the district court to determine in the first instance whether it is lawful and otherwise appropriate to permit Mr. Baker to amend his § 2255 motion to make a Taylor-like argument as to Count 11.

I

In March 2011, Mr. Baker was charged with numerous federal crimes in a multi-count indictment, including seven counts of Hobbs Act robbery, in violation of 18 U.S.C. § 1951; seven counts of using a firearm during and in relation to a crime of violence (i.e., the Hobbs Act robberies), in violation of 18 U.S.C. § 924(c); and seven counts of being a convicted felon in possession of a handgun, in violation of 18 U.S.C. § 922(g). See generally United States v. Baker, 713 F.3d 558, 559 (10th Cir. 2013); see also Case No. 2:11-cr-20020-JWL, Doc. 16 (Indictment, filed Mar. 29, 2011).^[3] Count 11 specifically charged Mr. Baker with a violation of § 924(c) based on a crime-of-violence predicate of attempted Hobbs Act robbery. See Case No. 2:11-cr-20020-JWL, Doc. 16, at 6; Aplt.'s Suppl. Br. Filed Post-Taylor at 5.

The charges related to a series of armed robberies in the Kansas City, Kansas, area in early 2011. See Baker, 713 F.3d at 560. Following a jury trial, Mr. Baker was convicted on all counts, see Case No. 2:11-cr-20020-JWL, Doc 55 (Jury Verdict, filed Sept. 15, 2011), and he was sentenced to a total term of imprisonment of 164 years, see id., Doc. 69 (Judgment, entered Jan. 18, 2012). We affirmed Mr. Baker's convictions. See Baker, 713 F.3d at 563.

Mr. Baker brought his first collateral challenge to his convictions under 28 U.S.C. § 2255 in 2014, but it was unsuccessful. See Case No. 2:11-cr-20020-JWL, Doc. 207 (Dist. Ct. Mem. &Order, entered June 17, 2015) (denying Mr. Baker's petition to vacate, set aside, or correct his sentence). In 2016, Mr. Baker moved for authorization to file a second or successive § 2255 motion predicated on the purported invalidity of § 924(c)(3)(B), that is, the section's "residual clause." See Appl. for Leave to File a Successive Mot. under 28 U.S.C. § 2255, No. 16-3131 (10th Cir., filed May 20, 2016). Following United States v. Davis, in which the Supreme Court invalidated § 924(c)'s residual clause as unconstitutionally vague, we authorized Mr. Baker to file a successive § 2255 motion under § 2255(h)(2), as it would "rel[y] on 'a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.'" R. at 29 (10th Cir. Order, filed Jan. 8, 2020) (citing In re Mullins, 942 F.3d 975, 979 (10th Cir. 2019)). In the district court, Mr. Baker challenged the validity of his § 924(c) convictions. Id. at 33-42 (Suppl. Br., filed Feb. 27, 2020). He argued that, given that Davis rendered the residual clause "now void," the only possible foundation for declaring his Hobbs Act robbery convictions to be crimes of violence was the elements clause, and that "Hobbs Act robbery is not 'categorically' a crime of violence under the elements clause." Id. at 35, 38.

The district court denied Mr. Baker's motion. Id. at 61-62 (Mem. &Order, entered Mar. 25, 2020). The court noted that we have "squarely held that Hobbs Act robbery is categorically a crime of violence under the elements clause of § 924(c)(3)(A) because that clause requires the use of force and the force element in Hobbs Act robbery 'can only be satisfied by violent force.'" Id. (quoting Melgar-Cabrera, 892 F.3d at 1064-65). The court also acknowledged that Mr. Baker "argue[d] that Hobbs Act robbery is not a crime of violence because it can be accomplished by damaging property," and that he cited United States v. Bowen, 936 F.3d 1091 (10th Cir. 2019), for support. Id. at 62. However, Bowen, the district court explained, "involved the relationship between 18 U.S.C. § 924(c)(3) and witness retaliation-not Hobbs Act robbery"; moreover, Melgar-Cabrera remained "binding precedent," and Mr. Baker failed to show how "the Supreme Court's invalidation of § 924(c)(3)'s [distinct] residual clause [i.e., in Davis] . . . change[d] Hobbs Act robbery's status as a crime of violence." Id. The court subsequently denied Mr. Baker's request for a COA. Id. at 66-67 (Mem. &Order, entered Apr. 10, 2020) (declining to issue a COA because "[r]easonable jurists could not debate the court's decision to deny Mr. Baker's petition in light of the fact that Hobbs Act robbery, under Tenth Circuit precedent, is categorically a crime of violence under the elements clause of § 924(c)(3)(A)").

On appeal, Mr. Baker filed a pro se opening brief and application for a COA, which we granted. See Aplt.'s Combined Opening Br. and Appl. for a COA; Order, No. 20-3062, at 1 (10th Cir., filed June 10, 2020). "In accordance with § 2255(c)," we granted a COA "as to 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[] (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[]?

Order, No. 20-3062, at 1 (10th Cir., filed June 10, 2020). In other words, by granting the COA, we invited a reexamination of the validity and scope of our holding in Melgar-Cabrera-more specifically, its crime-of-violence holding concerning the elements clause, § 924(c)(3)(A))-against the backdrop of the Supreme Court's decision in Davis, which struck down the other potential basis for a § 924(c)(3) crime-of-violence determination, the residual clause, § 924(c)(3)(B).

Yet, as discussed above, Mr. Baker in his supplemental opening brief effectively sidesteps the narrow question as to which we granted a COA-centered on the vitality vel non of Melgar-Cabrera's holding as applied to threats to injure intangible property-and asks that we exercise our discretion to "expand" the COA to cover his broader argument that Hobbs Act robbery can be accomplished by threatening injury to any property, thus it does not satisfy § 924(c)'s elements clause. Aplt.'s Suppl. Opening Br. at 2. Particularly, Mr. Baker avers that "Melgar-Cabrera does not prevent this court from...