UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 17-50167

Plaintiff-Appellee, D.C. No. 8:16-cr-00054- v. CJC-1 LEON CURTIS ECKFORD, AKA Porky, AKA Spank, OPINION

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding

Argued and Submitted June 13, 2023 Pasadena, California

Filed August 15, 2023 Before: Jay S. Bybee and Morgan Christen, Circuit Judges, and Eric N. Vitaliano, * District Judge.

Opinion by Judge Bybee

* The Honorable Eric N. Vitaliano, United States District Judge for the Eastern District of New York, sitting by designation. 2 USA V. ECKFORD

SUMMARY **

Criminal Law

Affirming Leon Eckford’s conviction and sentence, the panel held that aiding and abetting Hobbs Act robbery is a crime of violence that properly served as a predicate for Eckford’s conviction and mandatory minimum sentence for the use of a firearm during a crime of violence under 18 U.S.C. § 924(c). Under the “elements clause” of § 924(c), the phrase “crime of violence” is defined as “an offense that is a felony and . . . has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” The phrase “physical force” means violent force, or force capable of causing physical pain or injury to another person. The panel applied the “categorical approach,” asking whether the federal felony at issue always requires the government to prove the use, attempted use, or threatened use of force. The panel held that under United States v. Dominguez, 48 F.4th 1040 (9th Cir. 2022) (Dominguez II), completed Hobbs Act robbery is a crime of violence for purposes of § 924(c). The panel concluded that Dominguez II was not clearly irreconcilable with, and thus overruled by, United States v. Taylor, 142 S. Ct. 2015 (2022) (attempted Hobbs Act robbery is not a crime of violence). First, Taylor was not intervening higher authority because it was decided before Dominguez II. In Dominguez II, this court, on ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. USA V. ECKFORD 3

remand from the Supreme Court for reconsideration in light of Taylor, partially reinstated United States v. Dominguez, 954 F.3d 1251 (9th Cir. 2020) (Dominguez I) (holding that both completed Hobbs Act robbery and attempted Hobbs Act robbery are categorically crimes of violence), and again held that completed Hobbs Act robbery is a crime of violence. Second, the panel concluded that, even if it were not bound by Dominguez II, it would still find that Dominguez I’s analysis of completed Hobbs Act robbery, which cited the “realistic probability” test from Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007), was not clearly irreconcilable with Taylor. The panel held that aiding and abetting Hobbs Act robbery also satisfies the elements clause of § 924(c) because, for purposes of criminal culpability, the law does not distinguish between principals and aiders and abettors.

COUNSEL Kristi A. Hughes (argued), Law Office of Kristi A. Hughes, Cardiff, California, for Defendant-Appellant. Suria M. Bahadue (argued), Assistant United States Attorney; Bram M. Alden, Assistant United States Attorney, Criminal Appeals Section Chief; E. Martin Estrada, United States Attorney; United States Attorney’s Office, Los Angeles, California; Scott D. Tenley, Zweiback Fise