Eleventh Circuit Court of Appeals - Published Opinions

Wednesday, October 10, 2018

Ovalles II: Attempted Carjacking is a Crime of Violence Under 924(c)(3)(A)

In Ovalles v. United States, No. 17-1072 (Oct. 9, 2018) (Tjoflat, William Pryor, Hull) (per curiam), the Court held that attempted carjacking is a crime of violence under the elements clause of 924(c)(3)(A).

Although the en banc Court held that Ovalles' attempted carjacking conviction satisfied the residual clause of 924(c)(3)(B) under a fact-based approach, the en banc Court remanded the case back to the panel.  The panel reinstated its original, alternative holding that attempted carjacking satisfies the elements clause under the categorical approach.  The Court reiterated its prior precedents holding that carjacking, including by intimidation, is a crime of violence, and reiterating its prior precedent on the analogous bank robbery statute.  The Court then explained that the attempt element did not result in a different conclusion because, under federal law, the defendant must have the specific intent to commit each element of the substantive offense and must take a substantive step towards committing that offense.  The Court reasoned that when an offense, if completed, satisfies the elements clause, then so does an attempt to commit that same offense.

Thursday, October 04, 2018

Ovalles: 924(c)(3)(B) Requires a Conduct-Based Approach and is not Unconstitutionally Vague

In Ovalles v. United States, No. 17-10172 (Oct. 4, 2018) (en banc) (Newsom, joined by Ed Carnes, Tjoflat, Marcus, William Pryor, Rosenbaum, Branch, Hull), the Court held that the residual clause in 924(c)(3)(B) can plausibly be read to require a conduct-based -- as opposed to a categorical -- approach; it must be so read in order to avoid the constitutional vagueness problem that doomed 16(b) in Dimaya; and that clause is therefore not unconstitutionally vague.  (Note: Shortly before the opinion came out today, the government filed a cert. petition in cases out of the Fifth and Tenth Circuits asking the Supreme Court to review this issue, so today's decision will not likely be the last word.).

Judge William Pryor, joined by Judges Ed Carnes, Tjoflat, Newsom, and Branch, concurred to express the view that Congress should re-write recidivist statutes like the ACCA to restore the common-law role of the jury by requiring the government to prove to a jury that the defendant committed a prior conviction, and that the facts of the prior conviction involved the use of physical force.

Judge Martin dissented, explaining how the majority's decision was but the latest in a long line of decisions limiting the effect of Johnson.  Her "review reveals a body of law that has relentlessly limited the ability of the incarcerated to have their sentences reviewed. Decisions of this Court have left only a narrow path to relief for those serving sentences longer than the law now allows. Yet this narrow path is not mandated by decisions of the Supreme Court or by Acts of Congress. Indeed, this Court has withheld relief from prisoners even when precedent counsels otherwise." 

Judge Jill Pryor, joined by Judges Wilson, Martin, and Jordan, dissented, arguing that the residual clause in 924(c)(3)(B) was unconstitutional in light of Dimaya, which struck down the identical statute in 16(b), and the canon of constitutional avoidance could not save it because its text required application of the categorical approach.