NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 20-2333 _____________

UNITED STATES OF AMERICA,

v.

RYAN J. WASHINGTON, Appellant ________________

On Appeal from the United States District Court for the District of New Jersey (D.C. Criminal No. 3-02-cr-00320-004) District Judge: Honorable Anne E. Thompson ______________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) April 11, 2023 ______________

Before: CHAGARES, Chief Judge, SCIRICA and AMBRO, Circuit Judges

(Opinion filed: April 14, 2023) ____________

OPINION* ____________

* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. CHAGARES, Chief Judge.

Ryan Washington committed nine armed bank robberies and attempted a tenth in

the early 2000s. After he was convicted of five counts related to the robberies and the

attempted robbery at trial, he was sentenced to 619 months of imprisonment. Changes in

the law since his initial sentencing, however, have resulted in Washington being

resentenced two times, with the District Court most recently resentencing him to 384

months of imprisonment. He now appeals the judgment resulting from that resentencing,

arguing that the District Court should have vacated certain convictions and that the

sentence was substantively unreasonable. We agree that his conviction on one of the

counts — carrying a firearm in relation to a crime of violence with attempted robbery as

the predicate offense — must be vacated under recent Supreme Court decisions. We

disagree with his remaining arguments. For the reasons explained below, we will vacate

the judgment and remand for a full resentencing.

I.

We write solely for the parties and so recite only the facts necessary to our

disposition. Between December 2000 and April 2002, Washington and his three co-

defendants completed nine bank robberies. The bank robberies were violent: the group

pointed guns at victims’ heads, taped their mouths with duct tape, kicked and dragged

victims, and took their personal items. They stole money from the teller drawers and

forced bank employees to open the vaults. They were eventually caught fleeing an

attempted tenth bank robbery, after they detected FBI surveillance.

In April 2003, following a trial lasting several weeks, a jury found Washington

2 guilty of the following five counts:

• Count 1: Conspiracy to commit a Hobbs Act robbery in violation of

;

• Count 2: Carrying a firearm in relation to a crime of violence (Count 1) in

violation of

(c)(1);

• Count 3: Attempted bank robbery in violation of

(a);

• Count 4: Carrying a firearm in relation to a crime of violence (Count 3) in

violation of

(c)(1);

• Count 7: Felon in possession of a firearm in violation of

(g)(1).

The District Court sentenced Washington to 619 months (51 years, 7 months) of

imprisonment. It reached that sentence after applying the U.S. Sentencing Guidelines,

which were mandatory at the time. Washington appealed his convictions and his

sentence. We affirmed the convictions, but remanded for resentencing under United

States v. Booker,

(2005), an intervening change in law holding that the

Sentencing Guidelines were advisory, not mandatory. See United States v. Goggans,

(3d Cir. 2007). The District Court resentenced Washington to 444 months

(37 years) of imprisonment. We affirmed. See United States v. Washington,

(3d Cir. 2010).

Washington next filed a pro se habeas corpus petition, which the District Court

dismissed as untimely. In 2016, Washington filed a second habeas corpus petition, this

time with counsel, alleging that, under intervening Supreme Court precedent, three of his

convictions must be vacated. Citing Johnson v. United States,

(2015), we

3 certified the petition as a permissible second motion under

(h)(2),

holding that Washington had made the required showing under the statute. That habeas

petition was resolved by a consent order, with the Government conceding that

Washington’s conviction on Count 2 must be vacated and with Washington agreeing to

voluntarily withdraw his remaining habeas challenges. The District Court then

resentenced Washington to 384 months (32 years) of imprisonment.

Washington timely appealed both his new sentence and the voluntary resolution of

his remaining habeas claims.

II.

The District Court had jurisdiction to consider Washington’s habeas petition

under

and 2255. Our appellate jurisdiction depends first on whether

Washington’s bases for his appeal qualify for certificates of appealability, which requires

“a substantial showing of the denial of a constitutional right.”

(c)(2).

And for claims not covered in our certification of Washington’s successive habeas

petition under

(h)(2), our jurisdiction also depends on whether those

grounds contain “a new rule of constitutional law, made retroactive to cases on collateral

review by the Supreme Court.” See

(h)(2). For the reasons discussed

below, we have jurisdiction over one of Washington’s habeas claims, but we lack

jurisdiction over his remaining habeas claims.

Washington has also appealed his new sentence as substantively unreasonable.

The District Court had jurisdiction to impose the sentence under

and we

have jurisdiction to review the sentence under

(a) and

.

4 III.

Washington argues, and the Government agrees, that under the Supreme Court’s

decisions in United States v. Davis,

(2019), and United States v. Taylor,

(2022), his conviction on Count 4 — carrying a firearm in relation to a

crime of violence, in violation of

(c)(1), with attempted bank robbery

serving as the predicate crime of violence — must be vacated. For attempted bank

robbery to serve as a predicate offense for a § 924(c)(1) conviction, it must be a crime of

violence under either the elements clause of

(c)(3)(A) or the residual

clause of

(c)(3)(B). In Taylor, the Supreme Court held that attempted

Hobbs Act robbery is not a crime of violence under the elements clause. Taylor, 142 S.

Ct. at 2021. And in Davis, the Supreme Court held that the residual clause is

unconstitutional. Davis,

. The Government proposes, for purposes of

this case only, that Taylor’s holding extends to attempted bank robbery. We accept the

Government’s proposition. Attempted bank robbery, therefore, cannot serve as a

predicate crime of violence offense for Count 4. Given the lack of a valid predicate

offense, Washington’s conviction on Count 4 was improper.

But we can only vacate Washington’s conviction on Count 4 if we have

jurisdiction over that claim. We conclude that it is appropriate to issue a certificate of

appealability here. Because the Supreme Court in Taylor held that attempted Hobbs Act

robbery cannot satisfy the elements clause, that conviction can only stand under the

unconstitutional residual clause. Washington, accordingly, has demonstrated “a

substantial showing of the denial of a constitutional right,” see

(c)(2),

5 qualifying him for a certificate of appealability.1 We therefore have jurisdiction over this

claim, and we will vacate Washington’s conviction on Count 4.

The Government argues that a full resentencing is appropriate, while Washington

contends that we should remand to the District Court with instructions to vacate the 114

months of imprisonment associated with Count 4. When the District Court resentenced

Washington following the vacatur of Count 2, it undertook “a de novo resentencing as to

all counts of conviction . . . under the theory that [it] would craft a disposition in which

the sentences on the various counts form part of an overall plan.” Romansky v.

Superintendent Greene SCI,

(3d Cir. 2019), as amended (Aug. 9,

2019) (citation omitted); see also App. 149–50 (stating that the District Court was

resentencing Washington “afresh” on all the remaining counts of conviction). To give

the District Court the opportunity to revisit its “overall plan” now that Count 4 has also

been vacated, we conclude that a full resentencing is appropriate. We therefore will

vacate Washington’s judgment and remand for a full resentencing.

IV.

The Government argues that we lack jurisdiction over Washington’s remaining

habeas claims and that even if we had jurisdiction, those claims fail on their merits. We

agree.

Washington first argues that the District Court resentenced him outside the

1 We need not certify this claim as a second § 2255 motion under

(h)(2) because the existing certification covers the same claim brought under the Supreme Court precedent existing at the time of the certification order.

6 confines of the consent order resolving his habeas claims. In other words, Washington is

challenging the remedy imposed by the District Court upon resolution of his habeas

petition. See

(b). Washington has not made “a substantial showing of

the denial of a constitutional right,” see

(c)(2), and so we decline to

issue a certificate of appealability as to that claim. The consent order at issue (1) noted

that Washington “seeks to voluntarily withdraw his remaining claims, challenging the

sentence imposed on Counts Four and Seven;” (2) vacated Washington’s conviction on

Count 2; (3) ordered that his “motion to vacate his sentence on Counts Four and Seven is

denied as moot;” and (4) ordered that he “shall be resentenced on the remaining counts of

conviction . . . .” App. 121–22. Washington argues that those “clear terms of the consent

order” mean that he could only be resentenced on Count 1 and Count 3, given that Count

2 was vacated and his challenges to Counts 4 and 7 were declared moot. Washington Br.

6–8. Because that argument does not implicate Washington’s constitutional rights, we

decline to issue a certificate of appealability.2 And even if we had jurisdiction over that

claim, Washington’s argument about the consent order is clearly erroneous. A plain

reading of the order demonstrates that the District Court was ordering a resentencing of

Washington on all counts that had not been vacated, which is exactly what it did. We

accordingly reject Washington’s argument that the District Court erred by sentencing him

outside the scope of the consent order.

2 It is for that reason that we also decline to certify this claim as a second § 2255 motion under

(h)(2), which requires that “a new rule of constitutional law” be identified.

7 Washington next argues that Count 3 should be vacated because “the facts of [this]

‘attempted bank robbery’ do not satisfy the elements of the bank robbery statute.”

Washington Br. 6. He contends that attempted bank robbery requires proof of the use of

actual force or intimidation, and given that he was arrested after abandoning the tenth

bank robbery without ever entering the bank, there “is no rational basis” to conclude that

he used actual force or intimidation.

at 14–16. That argument is one of statutory

interpretation, not of constitutional law, making it inappropriate for us to issue a

certificate of appealability or to certify the claim under § 2255(h)(2). We accordingly

lack jurisdiction to hear it.

But even if we had jurisdiction, any failure to vacate Count 3 does not constitute

plain error by the District Court.3 Washington and the Government agree that the Courts

of Appeals are split as to whether attempted bank robbery requires an actual use of force

or intimidation or merely the intent to use force or intimidation. The parties also agree

that the Supreme Court and this Court have not weighed in on the issue. Given the lack

of authority binding the District Court, even if it had erred — an issue we decline to

decide — that error would have been far from “plain,” “clear,” or “obvious.” See United

States v. Olano,

(1993) (defining plain error review); see also United

States v. Cruz,

, 387 n.11 (3d Cir. 2014) (holding there was no plain error

3 Washington contends that plain error review applies to this claim. The Government argues that because Washington did not raise the argument below, the claim is procedurally defaulted and that the standard for excusing a procedural default is even stricter than plain error. For the reasons we discuss in text, Washington has not shown that the District Court plainly erred. And because the more lenient standard of plain error has not been satisfied, we need not decide the appropriate standard of review.

8 when we have not decided an issue and other Courts of Appeals are split). We

accordingly reject, on both jurisdictional grounds and on the merits, Washington’s

argument that Count 3 must be vacated.

Washington additionally argues that his prior lawyers provided ineffective

assistance of counsel by agreeing to the consent order mooting some of his habeas claims

and by failing to argue that his conduct did not meet the statutory elements of attempted

bank robbery. That claim fails as a threshold matter, given that defendants lack a right to

counsel in post-conviction proceedings like those at issue here. See Pennsylvania v.

Finley,

(1987). But even if Washington had a right to counsel in his

habeas claims, he has not shown that his prior counsels’ conduct was deficient or that the

purported deficiency resulted in prejudice. United States v. Headley,

(3d Cir. 1991). As the Government points out, Washington’s counsel may have

been seeking the quickest path to resentencing, so that Washington could seek a time

served sentence and be released from prison. That strategy makes sense given that there

was no guarantee that the remaining habeas arguments would have been successful or

that the District Court would have sided with those Courts of Appeals that have held that

attempted bank robbery requires actual force or intimidation. That the strategy was

ultimately unsuccessful does not make it deficient. Washington’s ineffective assistance

claim is therefore rejected.4

4 Washington also contends that his prior two attorneys were ineffective because they neglected his case. But he fails to explain how their purported neglect was ultimately prejudicial. Those claims, therefore, are also rejected.

9 In sum, we lack jurisdiction to hear Washington’s remaining habeas claims, but

even if we had jurisdiction, those claims would fail on their merits.

V.

Washington also argues that the District Court’s most recent resentence of 384

months is substantively unreasonable.5 Because we will remand this matter for a full

resentencing following our vacatur of Washington’s conviction on Count 4, that

argument is now moot, and we decline to consider it.6

VI.

For the foregoing reasons, we will vacate Washington’s judgment and remand for

a full resentencing.

5 Although labeled as arguments that Washington’s sentence was substantively unreasonable, most of Washington’s contentions go to whether his sentence was procedurally reasonable. Regardless of labeling, those arguments are now moot. 6 We have considered Washington’s other arguments not specifically addressed here, and we conclude that they are without merit.

10