NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 10 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-30183

Plaintiff-Appellee, D.C. Nos. 2:96-cr-00257-WFN-1 v. 2:96-cr-00257-WFN

VERNE JAY MERRELL, AKA Thomas C. James, AKA Jay, AKA Carl Avery Martell, MEMORANDUM* AKA Jay Merrell,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 20-30189

Plaintiff-Appellee, D.C. No. 2:96-cr-00259-WFN-1 v.

ROBERT SHERMAN BERRY, AKA Jim Preston,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 21-30043

Plaintiff-Appellee, D.C. No. 2:96-cr-00258-WFN-1 v.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

CHARLES HARRISON BARBEE,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Washington Wm. Fremming Nielsen, District Judge, Presiding

Argued and Submitted April 12, 2022 Seattle, Washington

Before: BOGGS,** HURWITZ, and SUNG, Circuit Judges.

In 1997, Verne Merrell, Robert Berry, and Charles Barbee (“appellants”) were

convicted of twelve offenses, including four crimes of violence under 18 U.S.C.

§ 924(c). In 2019, the district court granted relief under 28 U.S.C. § 2255 and

vacated two of the § 924(c) convictions, finding that the underlying predicate

offenses did not qualify as crimes of violence in light of United States v. Davis, 139

S. Ct. 2319, 2336 (2019). The district court then resentenced appellants on the

remaining § 924(c) convictions, both of which were predicated on armed bank

robbery in violation of 18 U.S.C. § 2113(a). The district court imposed a thirty-year

sentence on one of those counts because the firearm used in that crime was a

“destructive device” – a pipe bomb. See 18 U.S.C. §924(c)(1)(B)(ii).

** The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

2 1. Appellants contend that the thirty-year penalty imposed for use of the

pipe bomb was improper under the rule of Apprendi v. New Jersey, 530 U.S. 466

(2000), because the jury did not find that the “firearm” used in the bank robbery was

a “destructive device.” See United States v. Perez, 129 F.3d 1340, 1342 (9th Cir.

1997) (“For purposes of § 924(c)(1), the type of firearm used . . . is an element of

the offense on which a jury instruction and finding is required.”). We reject that

contention. The jury was correctly instructed that under § 924(c)(1), a “firearm”

includes a “destructive device,” including “any explosive, [or] incendiary . . . bomb.”

See 18 U.S.C. § 921(a)(3)(A)–(D), (a)(4)(A) (Sept. 30, 1996). In the same

instructions, the court included a copy of Count Five, which alleged that the offense

involved use of “a firearm that is a destructive device (a pipe bomb).” More

importantly, the verdict form returned by the jury expressly stated that the jury found

the appellants “guilty of the offense of use of a firearm (pipe bomb) during a crime

of violence (armed bank robbery on April 1, 1996) as alleged in Count 5 of the

Indictment.”

2. Barbee and Merrell also contend that armed bank robbery in violation

of 18 U.S.C. § 2113(a) is not categorically a crime of violence, arguing that our

decision to the contrary in United States v. Watson, 881 F.3d 782, 786 (9th Cir.

2018), cannot be reconciled with the Supreme Court’s subsequent opinion in

Stokeling v. United States, 139 S. Ct. 544, 550 (2019). Our decisions after Stokeling,

3 however, have reaffirmed that armed bank robbery in violation of § 2113(a) is

categorically a crime of violence. See United States v. Hylton, 30 F.4th 842, 849

(9th Cir. 2022); Young v. United States, 22 F.4th 1115, 1121 (9th Cir. 2022).

AFFIRMED.1

1 We hold in a separate opinion filed today that the First Step Act of 2018, Pub. L. No. 115–391, tit. IV, § 403, 132 Stat. 5194, 5221–22 (2018), applies to appellants’ resentencings after the grant of 18 U.S.C. § 2255 relief, and remand for the district court to resentence appellants in light of that Act. United States v. Merrell, No. 20- 30183 (9th Cir. 2022).

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