Eleventh Circuit Court of Appeals - Published Opinions

Tuesday, July 26, 2016

Gomez: Granting SOS to 924(c) applicant

In In re: Emilio Gomez, No. 16-14104-J (July 25, 2016), the Court granted an application to file a successive § 2255 application an inmate who was sentenced under 18 U.S.C. § 924(c). The Court recognized that when the law is “unsettled” on the question whether Johnson might invalidate the residual clause of § 924(c), it grants a successive application. Here, the indictment’s § 924(c) count was unclear on whether Gomez used a firearm during an attempted Hobbs Act robbery, during a conspiracy to commit Hobbs Act robbery, or during a drug trafficking offense. The Court therefore did not know what the predicate § 924(c) crime had been. The Court had previously in Pinder granted a successive application when the predicate was conspiracy to commit Hobbs Act robbery. Further, the Court had yet to decide whether attempted Hobbs Act robbery is a “violent felony” under ACCA. The Court therefore left the issue for the district court to decide in the first instance.