United States v. Baker, No. 20-3062 (10th Cir. 2022)
Annotate this CaseDefendant-Appellant Abasi Baker appealed a 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). In March 2011, 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). After the Tenth Circuit Court of Appeals authorized this motion based on the Supreme Court’s 2019 decision in United States v. Davis, 139 S. Ct. 2319 (2019), and the district court denied it, the Tenth Circuit granted Baker a certificate of appealability (“COA”) on whether United States v. Melgar-Cabrera, 892 F.3d 1053 (10th Cir. 2018) was 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 Davis. Rather than directly address this issue, however, Baker, in his supplemental opening brief, requests that the Tenth Circuit exercise discretion to “expand” the COA to cover whether Baker was entitled to § 2255 relief because: (1) Hobbs Act robbery, when accomplished through threats to injure any property—tangible or intangible—was not a crime of violence under § 924(c)(3)(A); and (2) the Tenth Circuit's decision in United States v. Melgar-Cabrera, where the Court held Hobbs Act robbery categorically qualified as a crime of violence under § 924(c)(3)(A), did not bar his argument because it was inapposite. Moreover, during the pendency of this appeal, the Supreme Court decided United States v. Taylor, 142 S. Ct. 2015 (2022), holding that attempted Hobbs Act Robbery was not a crime of violence. After review, the Tenth Circuit denied Baker’s request to expand the COA and dismissed that portion of this matter, and remanded the case to allow the district court to determine in the first instance whether it was lawful and otherwise appropriate to permit Baker to amend his § 2255 motion to make a Taylor-like argument as to Count 11.
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