Case: 16-16697 Date Filed: 02/28/2018 Page: 1 of 21
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-16697
Non-Argument Calendar
________________________
D.C. Docket Nos. 1:16-cv-02200-TWT,
1:00-cr-00879-TWT-LTW-1
NATHANIEL CHARLTON,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(February 28, 2018)
Before MARCUS, FAY and HULL, Circuit Judges.
PER CURIAM:
Nathaniel Charlton is a federal prisoner serving a total 324-month sentence
after he pled guilty in 2001 to one count of conspiracy to commit Hobbs Act
Case: 16-16697 Date Filed: 02/28/2018 Page: 2 of 21
robbery, in violation of
18 U.S.C. § 1951, and one count of possession of a firearm
during a crime of violence, in violation of
18 U.S.C. § 924(c). The district court
sentenced Charlton to 240 months’ imprisonment for the Hobbs Act robbery
conspiracy conviction and 84 consecutive months’ imprisonment for the § 924(c)
conviction. Charlton appeals the district court’s denial of his
28 U.S.C. § 2255
motion to vacate, set aside, or correct his § 924(c) sentence of 84 months based on
the Supreme Court’s recent decision in Johnson v. United States, 576 U.S. ___,
135 S. Ct. 2551 (2015). After careful review, we affirm.
I. BACKGROUND FACTS
A. Offense Conduct
Charlton’s convictions arose out of a crime spree Charlton committed with
two codefendants, Bakari Green and Eddie Lovan Jones. On the evening of
May 10, 2000, Charlton and his two codefendants decided to rob a series of
restaurants in Gwinnett County, Georgia. At each restaurant, the defendants threw
a large object or rock through a glass door to gain entry. At each, the defendants
used masks, dark clothing, and bandanas, and Charlton used a TEC-9 handgun for
at least three of the robberies.
Just after midnight, the three defendants drove to the first restaurant, a
McDonald’s on Five Forks Trickum Road. Inside, Charlton encountered two
employees, struck one on the lip with the barrel of the TEC-9, and forced both
2
Case: 16-16697 Date Filed: 02/28/2018 Page: 3 of 21
employees onto the floor in an office. Charlton took more than $3,600 and fled.
At 12:55 a.m., the three defendants drove to the second restaurant, a Wendy’s on
Sugarloaf Parkway. Two of the defendants held an employee at gunpoint and then
took more than $2,000. 1 Then, the defendants proceeded to the third restaurant,
another McDonald’s on Pike Street. There, Charlton confronted a cleaning lady at
gunpoint, put her in a food freezer, demanded that she open the safe, and, when she
was unable to do so, made her remove three rings from her fingers, and then left
with the rings.
The fourth and final incident occurred at a Chili’s on Buford Drive at
approximately 3:30 a.m. Charlton once again used the TEC-9 to place the cleaning
person in a freezer. Despite Charlton’s threats, the cleaning person was unable to
open the safe, and Charlton left empty-handed.
As the defendants left the Chili’s, a police officer spotted the vehicle and
attempted a traffic stop. After a high-speed car chase, police officers apprehended
the defendants as they fled on foot. During searches of the vehicle, the area where
the defendants were apprehended, and Charlton’s residence, the officers found,
inter alia, the TEC-9 used in the robberies, bags of cash, a receipt from one of the
McDonald’s restaurants, and the three rings taken from the cleaning woman at the
Pike Street McDonald’s.
1
It is unclear whether Charlton was one of the defendants who entered the Wendy’s or if
he waited in the car.
3
Case: 16-16697 Date Filed: 02/28/2018 Page: 4 of 21
B. Indictment
On December 12, 2000, Charlton, Green, and Jones were indicted on nine
counts in connection with the crime spree. Count One of the indictment charged
the defendants with conspiracy to commit the Hobbs Act robbery “of various
restaurants,” in violation of
18 U.S.C. § 1951. Count One further charged as the
overt acts in furtherance of the conspiracy the “offenses described in Counts Two
through Nine of this indictment,” which were “incorporated by reference . . . as if
fully set forth herein.”
Counts Two through Nine charged the defendants with either completed or
attempted Hobbs Act robberies under
18 U.S.C. §§ 1951 and 2 and with
corresponding firearm offenses under
18 U.S.C. § 924(c) for each of the four
targeted restaurants. Specifically, Counts Two and Three related to the Hobbs Act
robbery of a McDonald’s on Five Forks Trickum Road. Counts Four and Five
related to the Hobbs Act robbery of the Wendy’s. Counts Six and Seven related to
the attempted Hobbs Act robbery of the McDonald’s on Pike Street. Counts Eight
and Nine related to the attempted Hobbs Act robbery of the Chili’s.
Ultimately, Charlton pled guilty to the Hobbs Act robbery conspiracy
charged in Count One and the firearm offense charged in Count Seven, which
charged him with using and carrying a firearm during the attempted Hobbs Act
4
Case: 16-16697 Date Filed: 02/28/2018 Page: 5 of 21
robbery in Count Six. Therefore, only Counts One, Six and Seven are relevant to
this appeal, and we set out the allegations in those counts in detail.
Count One charged that Charlton and his codefendants:
did conspire, confederate, agree, and have a tacit understanding with
one another to take and obtain personal property then in the custody
and control of various restaurants, all businesses operating in
interstate commerce . . . , from the persons of . . . employees of the
said restaurants, against their will, by means of actual and threatened
force, violence, and fear of injury, . . . and by doing said acts did
unlawfully obstruct, delay, and interfere with commerce . . . .
As mentioned above, as overt acts of the conspiracy to commit Hobbs Act robbery,
Count One of the indictment incorporated by reference all of the substantive
robbery and firearm offenses in Counts Two through Nine.
Count Seven charged that Charlton and his codefendants did use and carry a
firearm during the attempted robbery in Count Six, stating that Charlton and his
codefendants:
aided and abetted by one another, during and in relation to a crime of
violence for which they may be prosecuted in a court of the United
States, that is, the attempted robbery described in Count Six above,
did use and carry a firearm, that is, a nine millimeter TEC-9
semiautomatic handgun equipped with a thirty-round ammunition
magazine, and in doing so, did brandish the firearm by displaying said
firearm and otherwise making its presence known to persons then
present during the offense, in order to intimidate . . . .
(emphasis added). Count Six, in turn, charged that Charlton and his codefendants
committed the attempted robbery of the McDonald’s on Pike Street, stating
Charlton and his codefendants:
5
Case: 16-16697 Date Filed: 02/28/2018 Page: 6 of 21
aided and abetted by one another, did unlawfully attempt to take and
obtain personal property then in the custody and control of the
McDonald’s restaurant located at 751 Pike Street, Lawrenceville,
Georgia, a business operating in interstate commerce . . . , from the
person of, and in the presence of an employee of the said business,
against her will, by means of actual and threatened force, violence,
and fear of injury, immediate and future, to the person of the
employee, and by doing said acts did unlawfully obstruct, delay, and
interfere with commerce . . . .
C. Guilty Plea and Sentencing
On September 24, 2001, as Charlton’s trial was about to begin, the district
court held a change-of-plea hearing. The plea agreement provided that Charlton
would plead guilty to Counts One and Seven of the indictment in exchange for
dismissal of the other counts. The plea agreement also stated that “defendant
admits that he is pleading guilty because he is in fact guilty of the crime(s) charged
in Count(s) One and Seven of the Indictment.” Likewise, it included a limited
waiver of Charlton’s right to appeal his sentence or collaterally attack it in post-
conviction proceedings on any ground except a sentence in excess of the statutory
maximum penalty.
During the plea colloquy, the government summarized the terms of the plea
agreement on the record, which included the following in relevant part:
Judge, the plea agreement that the parties have entered into, the first
term is that the Defendant is pleading guilty to Count One and Count
Seven of the Indictment. Count One charges a violation, a conspiracy
to commit Hobbs Act armed robberies. Count Seven alleges a
violation of
18 U.S.C. § 924(c), and that relates to the attempted
armed robbery of the Pike Street McDonald’s in this case.
6
Case: 16-16697 Date Filed: 02/28/2018 Page: 7 of 21
(emphasis added).
The district court then requested that the government state each element of
the offenses to which Charlton intended to plead guilty. With respect to Count
One, after describing the elements for completed and attempted Hobbs Act
robbery, the government stated that it was required to prove “certain overt acts
which include the offense described in Counts Two through Nine of the
Indictment,” and then reviewed all of the overt acts described in Counts Two
through Nine, including the completed robberies of the Five Forks Trickum Road
McDonald’s and the Wendy’s, the attempted robberies of the Pike Street
McDonald’s and the Chili’s, and the use of the firearm during each of those
robbery offenses.
With respect to Count Seven, the government explained that it was required
to prove that Charlton, along with his codefendants and aided and abetted by each
other, used and carried a firearm “during and in relation to a crime of violence,
which in this case is the attempted robbery of the Pike Street McDonald’s alleged
in Count Six.” Charlton affirmed his understanding that he was charged with
conspiracy to commit armed Hobbs Act robbery and charged with using of a
firearm in the course of a crime of violence.
With respect to evidence in support of Counts Six and Seven, the
government explained that at trial it would have shown that in the early hours of
7
Case: 16-16697 Date Filed: 02/28/2018 Page: 8 of 21
May 11, 2000, after committing the two successful robberies at the Five Forks
Trickum McDonald’s and the Wendy’s, Charlton and his codefendants proceeded
to the “McDonald’s restaurant located at 751 Pike Street in the city of
Lawrenceville” and arrived when “the restaurant employees had left for the
evening.” Charlton entered the restaurant by throwing a rock through the glass
door, held up a cleaning lady with a TEC-9 handgun that he pointed at her
numerous times, put the cleaning lady in a food freezer, demanded that she open
the safe, made her remove her jewelry, and then left.
When asked by the district court about the government’s factual proffer,
Charlton did not take issue with any of the details and admitted that he was, in fact,
guilty of the offenses alleged in Counts One and Seven. The district court found
that Charlton was competent, determined that his plea was entered voluntarily and
with full knowledge, accepted his plea, and adjudicated him guilty of Counts One
and Seven of the indictment.
Shortly thereafter, Charlton sought to withdraw his guilty plea. Charlton’s
motion claimed that his attorney had not adequately consulted with him or
prepared for trial and then coerced him to enter into the plea agreement by telling
Charlton that he could not win his case and faced eighty years in prison. After a
hearing, at which Charlton was represented by new counsel and Charlton and his
8
Case: 16-16697 Date Filed: 02/28/2018 Page: 9 of 21
former counsel testified, the district court denied Charlton’s motion to withdraw
his guilty plea.
The district court sentenced Charlton to a total term of 324 months’
imprisonment—240 months as to Count One and 84 months as to Count Seven to
be served consecutively. The district court also sentenced Charlton to three years
of supervised release and ordered that he pay a $200 special assessment.
D. Direct Appeal
On March 19, 2002, Charlton filed a direct appeal challenging the
district court’s denial of his pretrial motion to suppress evidence obtained
after his arrest and his motion to withdraw his guilty plea. On January 2,
2003, this Court affirmed the district court’s rulings on these two issues. See
United States v. Charlton, No. 02-11879 (11th Cir. Nov. 15, 2002)
(unpublished). With respect to his guilty plea, this Court concluded that the
record refuted Charlton’s claims and showed that Charlton’s guilty plea was
knowing and voluntary.
Id., slip op. at 2-4.
E. Section 2255 Motion to Vacate
On June 17, 2016, Charlton filed a pro se motion to vacate his
sentence pursuant to
28 U.S.C. § 2255. In his § 2255 motion, Charlton
requested that the district court “set-aside the judgment” and “correct his
9
Case: 16-16697 Date Filed: 02/28/2018 Page: 10 of 21
sentence” on Count Seven because his conviction under
18 U.S.C. § 924(c)
was improperly predicated upon a conspiracy to commit Hobbs Act robbery.
Charlton argued that this conviction on Count Seven was improper in
light of Johnson, 576 U.S. ___,
135 S. Ct. 2551, and Welch v. United States,
578 U.S. ____,
136 S. Ct. 1257 (2016). Specifically, he contended that the
definition of “crime of violence” under § 924(c)(3)(B)’s risk-of-force clause
is unconstitutional in light of the Supreme Court’s declaration that similar
language in
18 U.S.C. § 924(e)(2)(B)(ii) was unconstitutionally vague.
The government responded that Charlton’s § 2255 motion was barred
by the collateral attack waiver in his plea agreement and that his Johnson
claim was procedurally defaulted because he did not raise it on direct appeal.
Alternatively, the government argued on the merits that Johnson did not
invalidate § 924(c)(3)(B)’s risk-of-force clause, and, even if it did,
Charlton’s predicate offense for his Count Seven conviction was his aiding
and abetting attempted Hobbs Act robbery (as described in Count Six)—not
conspiracy—and qualified as a crime of violence under § 924(c)(3)(A)’s
use-of-force clause, which was not implicated by Johnson.
In its October 6, 2016 order, the district court denied Charlton’s § 2255
motion to vacate. The district court found that Charlton had “waived the right to
collaterally attack his sentence” but further stated that “[a]ssuming that Johnson
10
Case: 16-16697 Date Filed: 02/28/2018 Page: 11 of 21
applies to
18 U.S.C. § 924(c), the Defendant’s conviction in Count Seven stands
because the underlying offense of attempted Hobbs Act robbery has as an element
the use, attempted use[,] or threatened use of physical force against the person of
another.”2 Charlton filed a notice of appeal and a motion for a certificate of
appealability (“COA”) on October 24, 2016. The district court granted a COA as
to “whether the Defendant is entitled to set aside or modify his sentence as a result
of the decision in Johnson v. United States,
135 S. Ct. 2551 (2015).”
II. DISCUSSION
A. The ACCA and Johnson
The ACCA, which imposed enhanced sentences for certain defendants with
three prior 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
(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.
2
Although the district court determined that Charlton’s § 2255 motion was barred by his
collateral attack waiver, on appeal the government explicitly abandons this argument, contending
that the collateral attack waiver does not apply to Charlton’s Johnson claim because it attacks
both his conviction and sentence. We need not address the import of Charlton’s collateral attack
waiver because, even assuming it does not bar Charlton’s current § 2255 motion, the district
court properly denied the motion on the merits.
11
Case: 16-16697 Date Filed: 02/28/2018 Page: 12 of 21
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).
In Johnson, the Supreme Court held that the residual clause of the ACCA
was unconstitutionally vague. 576 U.S. ___,
135 S. Ct. at 2557-58, 2563. The
Supreme Court clarified that, in holding that the residual clause is void, it did not
call into question the elements clause and the enumerated crimes of the ACCA’s
definition of a violent felony.
Id. at 2563. In Welch, the Supreme Court thereafter
held that Johnson announced a new substantive rule that applies retroactively to
cases on collateral review. Welch, 578 U.S. at ___,
136 S. Ct. at 1264-65, 1268.
B. Section 924(c)
Distinct from the provisions in § 924(e), § 924(c) makes it a crime to use or
carry a firearm during a crime of violence or a drug trafficking crime and provides
for a mandatory consecutive sentence.
18 U.S.C. § 924(c)(1). For purposes of
§ 924(c), a “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
(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.
12
Case: 16-16697 Date Filed: 02/28/2018 Page: 13 of 21
18 U.S.C. § 924(c)(3)(A)-(B). The first part of the “crime of violence” definition
is often referred to as the “use-of-force” clause and the second part the “risk-of-
force” clause. The phrase “physical force” requires “violent force” or “force
capable of causing physical pain or injury to another person.” See Johnson v.
United States,
559 U.S. 133, 140,
130 S. Ct. 1265, 1271 (2010) (“Curtis Johnson”)
(interpreting the nearly identical elements clause of the ACCA).
C. Charlton’s § 924(c) Claim as to Count Seven
On appeal, Charlton argues that: (1) the district court erred in determining
that his § 924(c) firearm offense in Count Seven was predicated on the attempted
Hobbs Act robbery in Count Six (to which he did not plead guilty), rather than the
Hobbs Act robbery conspiracy in Count One (to which he did plead guilty);
(2) post-Johnson, a conspiracy to commit Hobbs Act robbery cannot qualify as a
crime of violence because § 924(c)’s risk-of-force clause is unconstitutionally
vague; and (3) even if attempted Hobbs Act robbery in Count Six is the right
predicate offense for Count Seven, it does not categorically qualify as a crime of
violence under § 924(c)’s use-of-force clause because it can be accomplished
without the requisite “violent force.”3
For the reasons that follow, we conclude that the underlying offense
supporting Charlton’s § 924(c) firearm conviction was, as explicitly alleged in
3
In a § 2255 proceeding, we review the legal issues pertaining to de novo and the factual
findings for clear error. Lynn v. United States,
365 F.3d 1225, 1232 (11th Cir. 2004).
13
Case: 16-16697 Date Filed: 02/28/2018 Page: 14 of 21
Count Seven, the attempted Hobbs Act robbery described in Count Six. Further,
under our binding precedent, an attempted Hobbs Act robbery categorically
constitutes a crime of violence under § 924(c)(3)(A)’s use-of-force clause. As
such, we conclude that Charlton is not entitled to any relief under Johnson,
regardless of whether Johnson applies to invalidate § 924(c)(3)(B)’s risk-of-force
clause.
D. Offense Underlying Charlton’s § 924(c) Conviction in Count Seven
Charlton pled guilty to Counts One and Seven. However, Charlton is
incorrect that the conspiracy in Count One was the underlying predicate offense for
his § 924(c) conviction in Count Seven. Count Seven of the indictment explicitly
charged Charlton and his codefendants with using, carrying, and brandishing a
firearm “during and in relation to . . . the attempted robbery described in Count
Six.” (emphasis added). In turn, Count Six charged Charlton and his codefendants
with aiding and abetting attempted Hobbs Act robbery at “the McDonald’s
restaurant located at 751 Pike Street, Lawrenceville, Georgia.” 4 Thus, Count
Seven of Charlton’s indictment clearly identifies the crime of violence as the
attempted Hobbs Act robbery of the Pike Street McDonald’s.
Moreover, when Charlton pled guilty to Count Seven, the plea transcript
shows that what he was admitting to was using, carrying, and brandishing a firearm
4
Although the district court’s order does not mention aiding and abetting specifically, the
indictment indicates that this was the complete offense in Count Six.
14
Case: 16-16697 Date Filed: 02/28/2018 Page: 15 of 21
during and in relation to the attempted robbery of the Pike Street McDonald’s
described in Count Six. In fact, the government identified the underlying offense
and explained its factual underpinnings numerous times leading up to Charlton’s
guilty plea.5
Charlton argues that because the only other offense he pled guilty to was the
conspiracy to commit Hobbs Act robberies in Count One, then that conspiracy
must be the underlying crime of violence in Count Seven. Charlton’s argument
ignores the plain language of § 924(c) and the indictment itself. A § 924(c)
conviction requires only that the crime of violence or drug trafficking offense be
one “for which the person may be prosecuted in a court of the United States.” See
18 U.S.C. § 924(c)(1)(A) (emphasis added). This Court has held that the
government need show “only the fact of the [predicate] offense, and not a
conviction.” United States v. Frye,
402 F.3d 1123, 1128 (11th Cir. 2005).
Thus, the district court correctly determined that the underlying offense
supporting Charlton’s § 924(c) firearm conviction in Count Seven was the aiding
and abetting attempted Hobbs Act robbery described in Count Six. Because
5
In its summary of the plea agreement, the government specified that “Count Seven
alleges a violation of
18 U.S.C. § 924(c), and that relates to the attempted armed robbery of the
Pike Street McDonald’s in this case.” Then, in listing the elements of Count Seven, the
government explained its burden of showing that the defendant, “during and in relation to a
crime of violence, which in this case is the attempted robbery of the Pike Street McDonald’s
alleged in Count Six, used and carried a firearm.” And, during its factual proffer, the
government explained the evidence underlying the charges to which Charlton intended to plead
guilty, including the facts of Count Six at the “Pike Street McDonald’s” after two robberies on
the morning of May 11, 2000.
15
Case: 16-16697 Date Filed: 02/28/2018 Page: 16 of 21
Charlton’s predicate offense was aiding and abetting attempted Hobbs Act robbery,
we have no reason to address whether a conspiracy to commit Hobbs Act robbery
qualifies as a crime of violence under § 924(c).
E. Attempted Hobbs Act Robbery and the Use-of-Force Clause
The next question is whether, post-Johnson, Charlton’s underlying offense
of aiding and abetting attempted Hobbs Act robbery is a crime of violence under
§ 924(c). Based on this Court’s precedent, we conclude that aiding and abetting an
attempted Hobbs Act robbery categorically qualifies as a crime of violence under
the use-of-force clause in § 924(c)(1)(A). As such, Charlton is not entitled to any
relief under Johnson, regardless of whether Johnson applies to invalidate the risk-
of-force clause in § 924(c)(1)(B).
The Hobbs Act makes it a crime to obstruct, delay, or affect commerce “by
robbery” or to “attempt[] or conspire[] to do so” or to “commit[] or threaten[]
physical violence to any person or property in furtherance of a plan or purpose to
do anything in violation of this section . . . .”
18 U.S.C. § 1951(a). “Robbery”
under the Hobbs Act is defined as “the unlawful taking or obtaining of personal
property” from a person “by means of actual or threatened force, or violence, or
fear of injury, immediate or future.”
Id. § 1951(b)(1). To be convicted of an
“attempt,” a defendant must: (1) have the specific intent to engage in the criminal
conduct with which he is charged; and (2) have taken a substantial step toward the
16
Case: 16-16697 Date Filed: 02/28/2018 Page: 17 of 21
commission of the offense. United States v. Yost,
479 F.3d 815, 819 (11th Cir.
2007). “A substantial step can be shown when the defendant’s objective acts mark
his conduct as criminal and, as a whole, ‘strongly corroborate the required
culpability.’”
Id. (quoting United States v. Murrell,
368 F.3d 1283, 1288 (11th Cir.
2004)).
This Court has already held that both substantive Hobbs Act robbery in
violation of
18 U.S.C. § 1951(b)(1) and aiding and abetting Hobbs Act robbery in
violation of § 1951(b)(1) and § 2 “clearly qualif[y] as a ‘crime of violence’ under
the use-of-force clause in § 924(c)(3)(A).” In re Colon,
826 F.3d 1301, 1305 (11th
Cir. 2016) (addressing aiding and abetting Hobbs Act robbery); In re Saint Fleur,
824 F.3d 1337, 1340-41 (11th Cir. 2016) (addressing Hobbs Act robbery). In line
with In re Saint Fleur, four other circuits have come to the same conclusion that
Hobbs Act robbery cannot be committed without the use, attempted use, or
threatened use of violent force. See United States v. Gooch,
850 F.3d 285, 291-92
(6th Cir. 2017); United States v. Rivera,
847 F.3d 847, 848-49 (7th Cir. 2017);
United States v. Hill,
832 F.3d 135, 140-44 (2d Cir. 2016); United States v. House,
825 F.3d 381, 387 (8th Cir. 2016). 6
6
The Third Circuit has also concluded that Hobbs Act robbery is a crime of violence
under § 924(c)(3)(A)’s use-of-force clause, but did so without applying the categorical approach.
See United States v. Robinson,
844 F.3d 137, 141-44 (3d Cir. 2016).
17
Case: 16-16697 Date Filed: 02/28/2018 Page: 18 of 21
We reject Charlton’s argument that a Hobbs Act robbery “by means of fear
of injury” can be committed without the use, attempted use, or threatened use of
physical force. First, this argument is inconsistent with In re Sams,
830 F.3d 1234,
1238-39 (11th Cir. 2016) and United States v. Moore,
43 F.3d 568, 572-73 (11th
Cir. 1994), in which this Court concluded that federal bank robbery “by
intimidation,” in violation of
18 U.S.C. § 2113(a), and federal carjacking “by
intimidation,” in violation of
18 U.S.C. § 2119, both have as an element the use
attempted use, or threatened use of physical force and thus qualify as crimes of
violence under § 924(c)(3)(A).
Moreover, as the Second Circuit explained in Hill, “there must be ‘a realistic
probability, not a theoretical possibility,’ that the statute at issue could be applied
to conduct that does not constitute a crime of violence,” and, to that end, “a
defendant ‘must at least point to his own case or other cases in which the . . . courts
in fact did apply the statute in the . . . manner for which he argues.’” 832 F.3d at
140 (quoting in part Gonzales v. Duenas-Alvarez,
549 U.S. 183, 193,
127 S. Ct.
815, 822 (2007)); see also United States v. McGuire,
706 F.3d 1333, 1337 (11th
Cir. 2013) (citing Gonzales v. Duenas-Alvarez and explaining that to determine
whether an offense is categorically a crime of violence under § 924(c), courts must
consider whether “the plausible applications of the statute of conviction all require
the use or threatened use of force . . . .” (emphasis added)). Charlton has not
18
Case: 16-16697 Date Filed: 02/28/2018 Page: 19 of 21
pointed to any case at all, much less one in which the Hobbs Act applied to a
robbery or attempted robbery that did not involve, at a minimum, a threat to use
physical force. And Charlton’s own case clearly involved a threat of physical
force, as he undisputedly pointed a TEC-9 handgun at the cleaning lady when he
demanded that she open the McDonald’s safe and then forced her into a freezer
and took her jewelry. Indeed, Charlton does not offer a plausible scenario, and we
can think of none, in which a Hobbs Act robber could take property from the
victim by putting the victim in fear of injury without at least threatening to use
force capable of causing injury. See Curtis Johnson,
559 U.S. at 140,
130 S. Ct. at
1271 (stating that the phrase “physical force” as used in the ACCA’s “violent
felony” definition means “violent force—that is, force capable of causing physical
pain or injury to another person”).
While this Court has not yet addressed attempted Hobbs Act robbery, the
definition of a crime of violence in the use-of-force clause in § 924(c)(3)(A)
explicitly includes offenses that have as an element the “attempted use” or
“threatened use” of force against the person or property of another. See
18 U.S.C.
§ 924(c)(3)(A).
Taken together, these considerations lead us to conclude that aiding and
abetting an attempted Hobbs Act robbery similarly qualifies as a crime of violence
under § 924(c)’s use-of-force clause. That is, if, as this Court has held, the taking
19
Case: 16-16697 Date Filed: 02/28/2018 Page: 20 of 21
of property in the manner required by § 1951(b)(1) necessarily includes the use,
attempted use, or threatened use of physical force, then by extension the attempted
taking of such property in the same manner must also include the use, attempted
use, or threatened use of physical force. Cf. United States v. Wade,
458 F.3d 1273,
1278 (11th Cir. 2006) (explaining that an attempt to commit a crime enumerated as
a violent felony under § 924(e)(2)(B)(ii) is also a violent felony); see also Hill v.
United States,
877 F.3d 717, 718-19 (7th Cir. 2017) (“When a substantive offense
would be a violent felony under § 924(e) and similar statutes, an attempt to commit
that offense also is a violent felony.”).
While Charlton contends that § 924(c)’s risk-of-force clause is
unconstitutionally vague in light of Johnson, we need not address this issue to
resolve his appeal.7 This is so because, even if Charlton is correct and Johnson’s
void-for-vagueness holding also invalidates § 924(c)’s risk-of-force clause,
Charlton’s underlying offense of aiding and abetting attempted Hobbs Act robbery
qualifies as a “crime of violence” under § 924(c)’s use-of-force clause, which, like
the ACCA’s nearly identical elements clause, would remain unaffected by
Johnson.
III. CONCLUSION
7
We note, however, that in Ovalles v. United States,
861 F.3d 1257 (11th Cir. 2017), this
Court recently rejected the Johnson argument Charlton now raises.
20
Case: 16-16697 Date Filed: 02/28/2018 Page: 21 of 21
In sum, aiding and abetting attempted Hobbs Act robbery—as described in
Count Six and explicitly charged as the underlying predicate in Count Seven—
categorically qualifies as a crime of violence under § 924(c)(3)(A)’s use-of-force
clause. Even assuming arguendo that Johnson invalidates the § 924(c)(3)(B) risk-
of-force clause, Charlton’s § 924(c) conviction and sentence on Count Seven
remains valid under the § 924(c)(3)(A)’s use-of-force clause. Accordingly,
because Charlton is not entitled to relief on Count Seven, the district court properly
denied Charlton’s § 2255 motion.
AFFIRMED.
21
