Opinion
No. 19-14760
09-02-2020
ARTHUR DARBY, JR., Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee.
[DO NOT PUBLISH] Non-Argument Calendar D.C. Docket Nos. 2:16-cv-00500-MHT-SRW 2:12-cr-00031-WHA-SRW-1 Appeal from the United States District Court for the Middle District of Alabama Before JORDAN, NEWSOM, and LAGOA, Circuit Judges. PER CURIAM:
Arthur Lee Darby, Jr., a federal prisoner, appeals the district court's denial of his pro se 28 U.S.C. § 2255 motion. On appeal, he asserts that the district court erred in rejecting his claim that his conviction for attempted aggravated assault, under 18 U.S.C. § 111(b), does not categorically qualify as a "crime of violence," under 18 U.S.C. § 924(c), because that statute is unconstitutionally vague in light of United States v. Johnson, 135 S. Ct. 2551 (2015).
Whether an offense qualifies as a crime of violence under 18 U.S.C. § 924(c)(3)(A) is a question of law we review de novo. United States v. McGuire, 706 F.3d 1333, 1336 (11th Cir. 2013), overruled on other grounds by Ovalles v. United States, 905 F.3d 1231 (11th Cir. 2018) (en banc); United States v. Lockley, 632 F.3d 1238, 1240 (11th Cir. 2011).
Section 924(c) provides for a mandatory consecutive sentence of ten years if a defendant discharges a firearm during a "crime of violence." 18 U.S.C. § 924(c)(1)(A)(iii). It defines a "crime of violence" as a felony offense that:
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, orId. § 924(c)(3) (emphasis added). The former is referred to as the "elements clause" and the latter the "residual clause."
(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.
In Johnson, the Supreme Court held that the similar residual clause in the Armed Career Criminal Act (ACCA), § 924(e)(2)(B)(ii)—which defines a "violent felony" as an offense that "involves conduct that presents a serious potential risk of physical injury to another"—was unconstitutionally vague and void, such that an offense could qualify as a "violent felony" only if it were either an enumerated offense or satisfied that statute's elements clause. Johnson, 135 S. Ct. at 2558-60. The Court in Johnson didn't address whether the residual clause in § 924(c)(3)(B) was unconstitutionally vague. See id.
In United States v. Davis, 139 S. Ct. 2319 (2019)—decided after Darby filed the present § 2255 motion—the Supreme Court extended Johnson's reasoning and held that the residual clause in § 924(c)(3) was unconstitutionally vague. Davis, 139 S. Ct. at 2336. But in cases where a conviction may serve as a predicate under another portion of § 924(c)(3), such as the elements clause, a movant will not be entitled to relief. See id.; see also In re Pollard, 931 F.3d 1318, 1320-21 (11th Cir. 2019). And importantly, we recently held in United States v. Bates, 960 F.3d 1278, 1285 (11th Cir. 2020), that a conviction under 18 U.S.C. § 111(b) qualifies as a crime of violence under § 924(c)(3)'s elements clause.
So in short, Johnson doesn't afford Darby any relief because it didn't address the constitutionality of § 924(c). See Johnson, 135 S. Ct. at 2558-60. And although Davis held that § 924(c)(3)(B) was unconstitutionally vague, Darby correctly concedes that the challenge to his conviction under § 924(c)(3)(A) is foreclosed by this Court's decision in Bates, which, under the prior-panel-precedent rule, remains binding unless and until it is overruled. See Davis, 139 S. Ct. at 2336; Bates, 960 F.3d at 1286-87; United States v. Romo-Villalobos, 674 F.3d 1246, 1251 (11th Cir. 2012).
Accordingly, because Darby's conviction under § 111(b) qualifies as a "crime of violence" under § 924(c)(3)(A), the district court did not err in denying him post-conviction relief.
AFFIRMED.