and Submitted February 6, 2019 Pasadena, California
from the United States District Court for the Southern
District of California D.C. Nos. 3:16-cv-01558-DMS
3:93-cr-00351-DMS-1 Dana M. Sabraw, District Judge Presiding
Hartzler (argued), Federal Defenders of San Diego Inc., San
Diego, California, for Defendant-Appellant.
H. Hong (argued), Chief, Appellate Section; Adam L.
Braverman, United States Attorney; United States
Attorney's Office, San Diego, California; for
Before: Ronald M. Gould and Jacqueline H. Nguyen, Circuit
Judges, and Algenon L. Marley, [*] District Judge.
U.S.C. § 2255
panel affirmed the district court's denial of Mario
Fultz's motion under 28 U.S.C. § 2255 in which he
argued that his sentence was improperly enhanced under 18
U.S.C. § 924(c)(1) on the ground that his underlying
offense, Robbery on a Government Reservation in violation of
18 U.S.C. § 2111, was a "crime of violence"
under 18 U.S.C. § 924(c)(3).
panel held that § 2111 Robbery, even if done by
"intimidation" alone, is categorically a
"crime of violence" under the elements clause of
MARBLEY, District Judge:
2016, the Supreme Court decided Johnson v. United
States (Johnson II), 135 S.Ct. 2551. In
Johnson II, the Court invalidated the "residual
clause" of the Armed Career Criminal Act
("ACCA")-18 U.S.C. § 924(e)(2)(B)(ii)-as void
for vagueness. Following Johnson II,
Defendant-Appellant Mario Fultz filed a second or successive
motion to vacate his sentence under 28 U.S.C. § 2255.
Fultz argues that his sentence was improperly enhanced under
§ 924(c)(1). First, he argues that, because the
underlying offense, robbery, was not a "crime of
violence" under the elements clause of §
924(c)(3)(A), his sentence was enhanced pursuant to the
residual clause of § 924(c)(3)(B). Second, he argues
that his sentence enhancement under the residual clause is
unconstitutional after Johnson II. The district
court denied Fultz's § 2255 motion but issued a
certificate of appealability, allowing Fultz to appeal its
denial order. This appeal was timely filed.
the time this appeal was filed and the time this court began
consideration of this case, the Supreme Court granted
certiorari in United States v. Davis, 18-431, which
was argued April 17, 2019. Davis will address the
question of whether the residual clause of §924(c)(3) is
unconstitutional. In the interim, this court heard argument
on the first certified question: whether the crime of which
Fultz was convicted, robbery in violation of 18 U.S.C. §
2111, is a crime of violence under the elements clause.
conclude that § 2111 Robbery is a "crime of
violence" under the elements clause. Fultz conceded
that, if his conviction under § 2111 also satisfies the
elements clause of § 924(c)(3)(A), he would be unable to
obtain relief ...