In the United States Court of Appeals FOR THE SECOND CIRCUIT

AUGUST TERM 2022 No. 21-2849

DERREK PANNELL, Petitioner-Appellant,

v.

UNITED STATES OF AMERICA, Respondent-Appellee.

On Appeal from the United States District Court for the Eastern District of New York

ARGUED: MARCH 9, 2023 DECIDED: AUGUST 28, 2024

Before: RAGGI, WESLEY, and MENASHI, Circuit Judges.

After Derrek Pannell robbed a United States Post Office in November 2005, he was convicted on three counts: conspiracy to commit a robbery of a United States Post Office in violation of 18 U.S.C. § 371; aggravated robbery of a United States Post Office in violation of 18 U.S.C. § 2114(a); and brandishing a firearm in connection with a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Pannell sought habeas relief under 28 U.S.C. § 2255, arguing that aggravated postal robbery does not qualify as a crime of violence for the purposes of § 924(c). Because the base offense of § 2114(a) robbery in this case qualifies as a crime of violence, aggravated § 2114(a) robbery necessarily does. We affirm the order of the district court denying relief under § 2255.

KYLE SINGHAL (Shon Hopwood, on the brief), Hopwood & Singhal PLLC, Washington, DC, for Petitioner- Appellant.

GABRIEL PARK, Assistant United States Attorney (Amy Busa, Assistant United States Attorney, on the brief), for Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Respondent- Appellee.

MENASHI, Circuit Judge:

In November 2005, Derek Pannell and two accomplices robbed a United States Post Office in Brooklyn, New York. Following a jury trial in September 2007, Pannell was convicted on three counts: conspiracy to commit a robbery of a United States Post Office in violation of 18 U.S.C. § 371; aggravated robbery of a United States Post Office in violation of 18 U.S.C. § 2114(a); and brandishing a firearm in connection with a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii).

Following an unsuccessful direct appeal, Pannell sought habeas relief in successive motions under 28 U.S.C. § 2255. In the third such

2 motion, consolidated with the second, Pannell argued that his conviction for aggravated postal robbery did not qualify as a predicate crime of violence for the purposes of 18 U.S.C. § 924(c). In May 2021, our court determined that Pannell had made a prima facie showing that his proposed successive § 2255 motion satisfied the requirements of 28 U.S.C. § 2255(h)(2). See Motion Order, Pannell v. United States, No. 20-3034 (2d Cir. May 3, 2021), ECF No. 43. We transferred the motion to the district court, instructing it to determine “whether substantive § 2114 postal robbery is a ‘crime of violence’” for the purposes of § 924(c). Id. at 2. In an opinion and order dated August 26, 2021, the district court decided that it was and, accordingly, denied the successive § 2255 motions. See Pannell v. United States, No. 06-CR-578, 2021 WL 3782729, at *4 (E.D.N.Y. Aug. 26, 2021).

On appeal, Pannell argues that his § 924(c) conviction was invalid for two reasons. First, he contends that aggravated postal robbery under § 2114(a) is not a crime of violence when guilt is based on a Pinkerton instruction, which permits a jury to convict a defendant of substantive offenses committed by his co-conspirators. See Pinkerton v. United States, 328 U.S. 640, 646-47 (1946). Second, he contends that aggravated postal robbery is