Whether a defendant's guilty plea to a § 924(c) charge precludes collateral review of the underlying crime of violence in light of the Supreme Court's intervening decision in United States v. Taylor

No question identified. : Appellate Case: 23-8016 Document: 010110989801 Date Filed: 01/25/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT January 25, 2024 Christopher M. Wolpert Clerk of UNITED STATES OF AMERICA, erk of Court Plaintiff Appellee, v. No. 23-8016 (D.C. Nos. 2:22-CV-00246-NDF, CHRISTOPHER DOMINGUEZ, 2:17-CR-00098-NDF-3 & Defendant Appellant. (D. Wyo.) ORDER DENYING CERTIFICATE OF APPEALABILITY* Before HARTZ, PHILLIPS, and McHUGH, Circuit Judges. Christopher Dominguez moves for a certificate of appealability (COA) so that he may appeal the district court’s denial of his motion for relief under 28 U.S.C. § 2255. We deny a COA and dismiss this proceeding. I. BACKGROUND & PROCEDURAL HISTORY In October 2016, three men carjacked a vehicle and used it to attempt a robbery from a Cheyenne, Wyoming, pharmacy; a gun battle with the pharmacist ensued and the robbers fled. See United States v. Dominguez, 998 F.3d 1094, 1096-97 (10th Cir. 2021), cert. denied, 142 S. Ct. 2756 (2022). Two months later, * This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-8016 Document: 010110989801 Date Filed: 01/25/2024 Page: 2 three men stole a vehicle and used it to successfully rob a pharmacy in Raton, New Mexico. See id. at 1096. Dominguez and two associates were arrested for that robbery the same day. See id. After their arrest they became the primary suspects in the Wyoming robbery as well. See id. at 1097. Federal grand juries in Wyoming and New Mexico indicted Dominguez and his associates on various charges related to the robberies. See id. As relevant here, the charges against Dominguez included three instances of brandishing or discharging a firearm during and in relation to a crime of violence or a drug trafficking crime, in violation of 18 U.S.C. § 924(c): namely, one count of brandishing a firearm during the New Mexico robbery and two counts of discharging a firearm during the Wyoming attempted robbery. See id. at 1097-98. Dominguez agreed to a plea deal that resolved both the Wyoming and New Mexico cases. Under the deal he pleaded guilty to four charges: (1) carjacking (Wyoming); (2) attempted robbery involving a controlled substance (Wyoming); (3) discharging a firearm during a crime of violence, see § 924(c)(1)(A)(iii) (Wyoming), for which the predicate crime was the attempted robbery involving a controlled substance; and (4) conspiracy to commit Hobbs Act robbery (New Mexico). See id. at 1099. Under Federal Rule of Criminal Procedure 11(c)(1)(C), the parties agreed that Dominguez would be sentenced to 8 years for carjacking, a consecutive 10 years for attempted robbery, a further consecutive 10 years for the § 924(c) violation, and finally, running concurrently to all of the foregoing, 18 years for the Hobbs Act 2 Appellate Case: 23-8016 Document: 010110989801 Date Filed: 01/25/2024 Page: 3 violation. See id. Thus, Dominguez’s total effective sentence would be 28 years. The district court accepted the plea agreement. See id. at 1100. Not long after, Dominguez moved to withdraw his plea agreement because the First Step Act of 2018, signed into law the same day he pleaded guilty, significantly reduced the potential sentencing exposure created by the various charges (both the ones to which he pleaded guilty and the ones the government agreed to drop). See id. The district court denied the motion. See id. at 1101. It then sentenced Dominguez to 28 years, per the plea agreement. Dominguez appealed. He argued that one reason the district court should have allowed him to withdraw his plea was his defense attorney had not known about the First Step Act and was therefore constitutionally ineffective. See id. at 1109-10. We held that even if the attorney’s ignorance am