Asazuh Mobley v. United States ( 2017 )

Case: 17-10016 Date Filed: 09/08/2017 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-10016
Non-Argument Calendar
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D.C. Docket Nos. 0:16-cv-61388-BB,
0:15-cr-60005-BB-1
ASAZUH MOBLEY,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 8, 2017)
Before MARCUS, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
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Asazuh Mobley appeals from the district court’s denial of his 28 U.S.C.
§ 2255 motion to vacate his sentence. The district court granted a certificate of
appealability as to:
Whether the district court erred by denying Mr. Mobley’s motion to
vacate, set aside, or correct his sentence, brought pursuant to 28
U.S.C. § 2255, alleging that he was actually innocent of violating 18
U.S.C. § 924(c) after Johnson v. United States, 135 S. Ct. 2551(2015), where the underlying offense, Conspiracy to commit Hobbs
Act robbery, is not a crime of violence as required by § 924(c).
In a proceeding on a motion to vacate, set aside, or correct sentence, the
district court’s factual findings are reviewed for clear error while legal issues are
reviewed de novo. Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004). A
prisoner in federal custody may file a motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255, “claiming the right to be released upon the
ground that the sentence was imposed in violation of the Constitution or laws of
the United States.” 28 U.S.C. § 2255(a).
The Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), which
imposes heightened prison sentences for certain defendants with three prior
convictions for either violent felonies or serious drug offenses, defines the term
“violent felony” as any crime punishable by a term of imprisonment exceeding one
year that:
(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or
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(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk
of physical injury to another.
18 U.S.C. § 924(e)(2)(B). The first prong of this definition is sometimes referred
to as the “elements clause,” while the second prong contains the “enumerated
crimes” and, finally, what is commonly called the “residual clause.” United States
v. Owens, 672 F.3d 966, 968 (11th Cir. 2012).
On June 26, 2015, the Supreme Court in Johnson held that the residual
clause of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague
because it created uncertainty about how to evaluate the risks posed by a crime and
how much risk it takes to qualify as a violent felony. Johnson, 135 S. Ct. at 2557-
58, 2563. Johnson did not affect any of the ACCA’s other provisions. Id. at 2563.
On April 18, 2016, the Supreme Court held that Johnson announced a new
substantive rule that applies retroactively to cases on collateral review. Welch v.
United States, 136 S. Ct. 1257 (2016).
Distinct from the provision in § 924(e), § 924(c) provides for a mandatory
consecutive sentence for any defendant who uses a firearm during a crime of
violence or a drug-trafficking crime. 18 U.S.C. § 924(c)(1). For the purposes of
§ 924(c), “crime of violence” means 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, or
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(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.
Id. § 924(c)(3)(A), (B).
We recently addressed Johnson’s effect on § 924(c)(3)(B), which we stated
is better understood as a “risk-of-force” clause than a residual clause. Ovalles v.
United States, 861 F.3d 1257, 1263 (11th Cir. 2017). We determined that
Johnson’s void-for-vagueness ruling does not extend to § 924(c)(3)(B), because
the risk-of-force clause in § 924(c)(3)(B) has a distinct purpose of punishing
firearm use in connection with a specific crime rather than recidivism, has not
caused the same difficulty in interpretation, does not encompass risks arising after
the offense is completed, and lacks the confusing comparison to enumerated
offenses. Id. at 1265-67.
Here, Mobley’s claim is foreclosed by Ovalles, which concluded that
Johnson does not apply to § 924(c)(3)(B). 1
AFFIRMED.
1
To the extent that Mobley argues that Conspiracy to commit Hobbs Act Robbery does not
fall under the definition set forth in § 924(c)(3)(B), we review that argument for plain error
because it was not raised below. This requires a defendant to show (1) an error, (2) that is plain,
and (3) that affected his substantial rights. United States v. Turner, 474 F.3d 1265, 1275–76
(11th Cir. 2007). If the defendant satisfies the three conditions, we may exercise our discretion to
recognize the error if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id. at 1276. An error is plain if controlling precedent from the Supreme Court or
our Court establishes that an error has occurred. United States v. Lejarde–Rada, 319 F.3d 1288,
1291 (11th Cir. 2003). Mobley has not pointed to any precedent from either court that holds that
conspiracy to commit Hobbs Act robbery does not fall under the definition set forth in §
924(c)(3)(B) and thus we reject his argument.
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