Opinion
No. 17-12671 No. 17-13409
04-30-2018
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JHIRMACK WILES, Defendant-Appellant.
[DO NOT PUBLISH] Non-Argument Calendar D.C. Docket No. 1:16-cr-20195-UU-1 Appeals from the United States District Court for the Southern District of Florida Before TJOFLAT, ROSENBAUM, and NEWSOM, Circuit Judges. PER CURIAM:
In these consolidated appeals, Jhirmack Wiles appeals his convictions after pleading guilty to two counts of brandishing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The sole substantive issue he raises on appeal is whether Hobbs Act robbery, 18 U.S.C. § 1951(a), is a "crime of violence" for purposes of § 924(c). Wiles maintains that it is not because it does not meet the definition of a crime of violence under the use-of-force clause in § 924(c)(3)(A), and because the risk-of-force or residual clause in § 924(c)(3)(B) is unconstitutionally vague, in light of Johnson v. United States, 135 S. Ct. 2551 (2015). We affirm.
Wiles also argues that the sentence-appeal waiver in his plea agreement does not bar his appeal, but the government does not seek to enforce the waiver or otherwise contest our authority to decide the issue raised.
Section 924(c)(1)(A) provides for a separate consecutive sentence if any person uses or carries a firearm during and in relation to a crime of violence, or possesses a firearm in furtherance of such a crime. 18 U.S.C. § 924(c)(1)(A). For purposes of § 924(c), a "crime of violence" is defined 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, orId. § 924(c)(3). Section 924(c)(3)(A) is commonly referred to as the use-of-force clause, while § 924(c)(3)(B) is commonly referred to as the risk-of-force or residual clause. United States v. St. Hubert, 883 F.3d 1319, 1327 (11th Cir. 2018).
(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.
After Wiles filed his brief with this Court, we held in St. Hubert that Hobbs Act robbery constitutes a crime of violence under § 924(c)(3)(A)'s use-of-force clause. St. Hubert, 883 F.3d at 1328-29. Further, we rejected the argument that the Supreme Court's decision in Johnson invalidated the similarly worded clause in § 924(c)(3)(B). Id. at 1327-28. We stated that, in Ovalles v. United States, 861 F.3d 1247 (11th Cir. 2017), we had already ruled that Johnson did not invalidate § 924(c)(3)(B), and we found we were bound to follow Ovalles. Id. at 1328. We further concluded that, regardless of the Supreme Court's ruling in Sessions v. Dimaya, No. 15-1498 (U.S., argued Oct. 2, 2017), involving the residual clause in 18 U.S.C. § 16(B), that ruling would not undermine Ovalles because Dimaya concerned a different substantive section than § 924(c)(3)(B), as well as different analytical frameworks. See id. at 1336-37.
Here, Wiles's arguments are foreclosed by binding precedent. See United States v. Brown, 342 F.3d 1245, 1246 (11th Cir. 2003) (stating that we are bound by our prior decisions unless and until they are overruled by the Supreme Court or this Court en banc). We are bound by St. Hubert's holding that Hobbs Act robbery qualifies as a crime of violence under the use-of-force clause in § 924(c)(3)(A). And Wiles's contention that the risk-of-force clause in § 924(c)(3)(B) is unconstitutionally vague is foreclosed by Ovalles, notwithstanding Dimaya. Accordingly, we affirm Wiles's convictions.
AFFIRMED.