Eleventh Circuit Court of Appeals - Published Opinions

Friday, November 16, 2018

St. Hubert: Hobbs Act Robbery and Attempted Hobbs Act Robbery are Crimes of Violence Under Both Clauses in 924(c)

In United States v. St.Hubert, No. 16-10874 (Nov. 15, 2018) (Hull, Marcus, Anderson), the Court sua sponte modified its earlier opinion in part and applied the recent en banc decision in Ovalles.

The Court reinstated without change its earlier analysis rejecting the government's argument that the defendant's guilty plea waived his argument that his convictions were not crimes of violence.  It also reinstated without change its holding that Hobbs Act robbery qualified as a crime of violence under the elements clause in 924(c)(3)(A). 

Applying Ovalles' conduct-based approach, the Court held that the defendant's Hobbs Act robbery conviction satisfied the residual clause in 924(c)(3)(B).  Reviewing the facts admitted at the plea hearing -- namely, brandishing a firearm and threatening to shoot store employees during a robbery -- the Court concluded that his offense involved a substantial risk that physical force may have been used against a person or property.

The Court also held that the defendant's attempted Hobbs Act robbery conviction was a crime of violence under both the elements clause and residual clause in 924(c).  As to the residual clause, the Court again reviewed the facts admitted at the plea hearing -- which involved brandishing a firearm, holding it against one employee's side while directing another to open the safe, but fleeing before he could take any money -- and concluded that this conduct involved a substantial risk that physical force might be used against a person or property.  Alternatively, the Court reiterated and slightly modified its holding that attempted Hobbs Act robbery satisfied the elements clause because it necessarily involves the attempted use of force or threatened force.

Friday, November 02, 2018

In re Garrett: Johnson and Dimaya Do Not Authorize Successive 2255 Motions in 924(c) Cases

In In reGarrett, No. 18-1380 (Nov. 2, 2018) (Wiliam Pryor, Hul, Julie Carnes), the Court denied an application for authorization to file a second or successive 2255 motion based on Johnson and Dimaya.

Given the en banc Court's decision in Ovalles that 924(c)(3)(B) is not unconstitutionally vague after Dimaya, the Court held that the applicant failed to satisfy the gatekeeping crtieria in 2255(h), because there was no new rule of constitutional law, made retroactive by the Supreme Court, that applied to his claim.  The Court made clear that its ruling would apply to all second or successive applications involving a 924(c) claim based on Johnson and Dimaya.