Opinion
No. 17-12146
12-04-2017
QUANDRE COUNCIL, Individually, Petitioner - Appellant, v. UNITED STATES OF AMERICA, Respondent - Appellee.
[DO NOT PUBLISH] Non-Argument Calendar D.C. Docket Nos. 1:16-cv-22409-UU, 1:12-cr-20937-UU-1 Appeal from the United States District Court for the Southern District of Florida Before TJOFLAT, JORDAN and NEWSOM, Circuit Judges. PER CURIAM:
Quandre Council, a federal prisoner serving a 96-month sentence for Hobbs Act robbery and possession of a firearm in furtherance of a crime of violence, appeals the district court's denial of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. In his initial motion and on appeal, Mr. Council argues that his conviction for Hobbs Act robbery does not constitute a crime of violence for purposes of 18 U.S.C. § 924(c) after Johnson v. United States, 135 S. Ct. 2551 (2015), and because it does not categorically qualify as a crime of violence under the "use of force" clause.
I
In denying Mr. Council's § 2255 motion, the district court held that Hobbs Act robbery qualifies as a crime of violence under § 924(c)'s "use-of-force" clause, but found that the (residual) "risk-of-force" clause of § 924(c) was unconstitutionally vague in light of Johnson. Thereafter, Mr. Council requested and was granted a certificate of appealability on "whether a conviction for Hobbs Act robbery categorically qualifies as a 'crime of violence' under § 924(c)'s 'use-of-force' clause in light of Johnson."
II
When reviewing a district court's denial of a § 2255 motion, we review questions of law de novo and factual findings for clear error. See Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004). We can affirm for any reason supported by the record, even if not relied upon by the district court. See United States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir. 2008).
III
The Supreme Court invalidated the "residual clause" of the Armed Career Criminal Act, 28 U.S.C. § 924(e), in Johnson, but made clear that its decision did "not call into question application of the Act to the four enumerated offenses, or the remainder of the Act's definition of a violent felony." 135 S. Ct. at 2563.
A separate provision requires additional penalties for a defendant who uses a firearm during a violent felony or a drug trafficking crime. See § 924(c). This provision defines a "crime of violence" as an offense that is a felony and:
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or§ 924(c)(3). The "risk-of-force clause," Section 924(c)(3)(B), uses language similar to that found in § 924(e)'s now-unconstitutional residual clause, and that forms the basis for Mr. Council's argument. Unfortunately for Mr. Council, we recently held in Ovalles v. United States, 861 F.3d 1257, 1267 (11th Cir. 2017), that § 924(c)'s "risk-of-force" (i.e., residual) clause is not unconstitutionally vague. In making our assessment, we noted "material textual differences" between the clauses. See id. at 1263. We also explained that § 924(c) "is not concerned with recidivism, but rather with whether the instant firearm was used during and in relation to the predicate crime of violence." Id. at 1265. Because of the close nexus needed between a firearm offense and a predicate crime, a § 924(c) residual clause "crime of violence determination [is] more precise and more predictable" than a residual clause determination under § 924(e). We thus held that textual and application differences between § 924(c) and § 924(e) allow § 924(c)'s "risk-of-force" clause to withstand attack under Johnson. Id. at 1266.
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
IV
Given our decision in Ovalles, Mr. Council's sentence is affirmed.
AFFIRMED.