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UNITED STATES DISTRICT COURT 8

DISTRICT OF NEVADA 9

10 UNITED STATES OF AMERICA, Case No. 3:18-cr-00073-HDM-WGC Case No. 3:20-cv-00367-HDM 11 Plaintiff, v. 12 ORDER KACY SAPP, 13

Defendant. 14

15 Defendant Kacy Sapp has filed a motion to vacate, set aside, 16 or correct sentence pursuant to

(ECF No. 35). 17 The government has opposed (ECF No. 39), and Sapp has replied (ECF 18 No. 40). 19 Sapp was charged by way of indictment with one count of Hobbs 20 Act robbery in violation of

and one count of use 21 of a firearm during and in relation to a crime of violence in 22 violation of

(c). Pursuant to an agreement, Sapp 23 pled guilty to the § 924(c) charge and the Hobbs Act charge was 24 dismissed. Following entry of the judgment of conviction in this 25 case, the U.S. Supreme Court issued a decision in United States v. 26 Davis,

(2019). Sapp argues that the holding of 27 Davis invalidates his conviction and he accordingly moves for 28 relief. 1 Section 924(c) prohibits the use of a firearm during and in 2 relation to a “crime of violence.” “Crime of violence” is defined 3 as an offense that is a felony and--(A) has as an element 4 the use, attempted use, or threatened use of physical force against the person or property of another, or (B) 5 that by its nature, involves a substantial risk that physical force against the person or property of another 6 may be used in the course of committing the offense. 7

(c)(3). Section 924(c)(3)(A) is known as the 8 “elements clause” and § 924(c)(3)(B) is known as the “residual 9 clause.” In Davis, the Court held that the residual clause is 10 unconstitutionally vague.

. Thus, a crime is a 11 crime of violence only if it satisfies the elements clause. 12 The predicate for Sapp’s § 924(c) conviction was Hobbs Act 13 robbery. While Sapp argues that Hobbs Act robbery does not satisfy 14 the elements clause and is therefore not a crime of violence, 15 binding Ninth Circuit authority forecloses his argument. Post- 16 Davis, the Ninth Circuit has held that Hobbs Act robbery satisfies 17 the elements clause and therefore remains a crime of violence for 18 the purposes of § 924(c). United States v. Dominguez,

1251, 1258-61 (9th Cir. 2020).1 Accordingly, because Hobbs Act 20 robbery is a qualifying crime of violence, Sapp’s § 2255 motion is 21 without merit and must be denied.2 22 In accordance with the foregoing, IT IS THEREFORE ORDERED 23 that Sapp’s motion to vacate, set aside, or correct sentence (ECF 24 No. 35) is DENIED. 25

26 1 Sapp acknowledges the decision in Dominguez but argues that it was wrongly 27 decided. The court is not persuaded and rejects Sapp’s arguments in this regard.

28 2 Because the motion is plainly without merit, the court declines to address any of the other various arguments raised by the parties in their briefs. 1 IT IS FURTHER ORDERED that Sapp is DENIED a certificate of 2\|| appealability, as jurists of reason would not find denial of the 3]| motion to be debatable or wrong. 4 The Clerk of Court shall enter final judgment accordingly. 5 IT IS SO ORDERED. 6 DATED: This 10th day of November, 2020. 3 Abra’ 2 Ht hMh> 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28