USA V. JOHN NEWTON, No. 17-15578 (9th Cir. 2018)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT SEP 13 2018 MOLLY C. DWYER, CLERK UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 17-15578 D.C. Nos. U.S. COURT OF APPEALS 1:15-cv-01956-LJO 1:94-cr-05036-LJO-1 v. JOHN ALLEN NEWTON, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, Chief Judge, Presiding Argued and Submitted September 4, 2018 San Francisco, California Before: BERZON and FRIEDLAND, Circuit Judges, and DOMINGUEZ,** District Judge. Petitioner John Allen Newton (“Newton”) appeals from the denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. He challenges his two convictions for use of a firearm during a crime of violence, * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Daniel R. Dominguez, United States District Judge for the District of Puerto Rico, sitting by designation. 18 U.S.C. § 924(c), which were based on two underlying convictions for federal carjacking, 18 U.S.C. § 2119. Because the federal carjacking statute in effect when Newton committed his offenses in January and February 1994 is categorically a “crime of violence” under 18 U.S.C. § 924(c), we affirm the district court. We are bound by United States v. Watson, 881 F.3d 782 (9th Cir. 2018), and United States v. Gutierrez, 876 F.3d 1254 (9th Cir. 2017). Gutierrez held that an amended version of the federal carjacking statute is categorically a “crime of violence” under § 924(c)(3)(A)’s definition of a “crime of violence” as a felony that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 876 F.3d at 1257. It concluded that the “by intimidation” requirement of the carjacking statute “necessarily entails the threatened use of violent physical force.” Id. Similarly, Watson held that federal bank robbery, 18 U.S.C. § 2113(a), which also proscribes robbery “by force and violence, or by intimidation,” is categorically a crime of violence under § 924(c)(3)(A)’s definition. 881 F.3d at 785. The federal carjacking statute in effect at the time Newton committed his offenses in January and February 1994 is not meaningfully different from the statutes at issue in Gutierrez and Watson. The version of the statute under which Newton was convicted is nearly identical to the amended version in 2 Gutierrez except that the amended version substitutes an “intent to cause death or serious bodily harm” element for a “possessing a firearm” element. See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 60003(a)(14), 108 Stat. 1796, 1970 (Sept. 13, 1994). Newton attempts to distinguish Gutierrez because the version of the carjacking statute applicable to him lacks this mens rea requirement. But Watson determined that difference to be immaterial when it held that the parallel federal bank robbery statute, which still does not require an intent to cause serious bodily harm, was categorically a “crime of violence.” 881 F.3d at 785. We are bound by those holdings. 1 AFFIRMED. 1 Because we may affirm on any ground supported by the record, Cassirer v. Thyssen-Bornemisza Collection Found., 862 F.3d 951, 974 (9th Cir. 2017), we do not decide whether Newton’s § 2255 motion was timely, as that question is not jurisdictional. See United States v. Battles, 362 F.3d 1195, 1196 (9th Cir. 2004) (holding that one-year limitations period on filing of § 2255 motions is subject to equitable tolling); United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1631 (2015) (concluding that if a limitations period is “jurisdictional,” it is not subject to equitable tolling). 3
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