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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-11662
Non-Argument Calendar
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D.C. Docket No. 3:12-cr-00034-TJC-MCR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER SHAMAR MCCAIN,
Custody,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(July 30, 2019)
Before ROSENBAUM, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
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In 2014, Christopher McCain pleaded guilty to two counts of Hobbs Act
robbery, in violation of
18 U.S.C. § 1915(a) (“counts 1 and 3”), and two counts of
brandishing a firearm in furtherance of a “crime of violence,” namely, the Hobbs
Act robbery offenses charged in counts 1 and 3, in violation of
18 U.S.C. § 924(c)
(“counts 2 and 4”). The district court sentenced him to a total of 385 months’
imprisonment, consisting of one month on each of counts 1 and 3, set to run
concurrently with each other, followed by 84 months’ imprisonment as to count 2,
set to run consecutive to all other sentences, and 300 months’ imprisonment as to
count 4, also set to run consecutive to all other sentences.
On appeal, McCain argues that his § 924(c) convictions in counts 2 and 4 are
invalid, because: (1) § 924(c)(3)(B)’s “residual clause” is unconstitutionally vague;
and (2) his two companion convictions for Hobbs Act robbery do not qualify as
“crime of violence” predicates under § 924(c)(3)(A)’s “elements clause.”
Generally, we review de novo whether a particular offense is a “crime of
violence” under
18 U.S.C. § 924(c). United States v. St. Hubert,
909 F.3d 335,
345-46 (11th Cir. 2018), cert. denied,
139 S. Ct. 1394 (2019). However, when a
defendant fails to object to a sentencing error before the district court, we review
for plain error. United States v. Beckles,
565 F.3d 832, 842 (11th Cir. 2009).
Under plain-error review, “[a]n appellate court may not correct an error the
defendant failed to raise in the district court unless there is: (1) error, (2) that is
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plain, and (3) that affects substantial rights.” United States v. Rodriguez,
398 F.3d
1291, 1298 (11th Cir. 2005) (quotation omitted). To be plain, “the legal error must
be clear or obvious, rather than subject to reasonable dispute.” Puckett v. United
States,
556 U.S. 129, 135 (11th Cir. 2009). And “[i]t is the law of this [C]ircuit
that, at least where the explicit language of a statue or rule does not specifically
resolve an issue, there can be no plain error where there is no precedent from the
Supreme Court or this Court directly resolving it.” United States v. Lejarde-Rada,
319 F.3d 1288, 1291 (11th Cir. 2003).
Moreover, under our prior precedent rule, “a prior panel’s holding is binding
on all subsequent panels unless and until it is overruled or undermined to the point
of abrogation by the Supreme Court or by this Court sitting en banc.” United
States v. Archer,
531 F.3d 1347, 1352 (11th Cir. 2008).
Under the Armed Career Criminal Act (“ACCA”), a defendant convicted of
being a felon in possession of a firearm under
18 U.S.C. § 922(g) who has three or
more prior convictions for a “violent felony” faces a mandatory minimum 15-year
sentence.
18 U.S.C. § 924(e)(1). The ACCA defines a “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.
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Id. § 924(e)(2)(B) (emphasis added). The first prong of this definition is referred
to as the “elements clause,” the first part of the second prong contains the
“enumerated crimes clause,” and the latter part of the second prong contains the
“residual clause.” See United States v. Owens,
672 F.3d 966, 968 (11th Cir. 2012).
In Johnson v. United States,
135 S. Ct. 2551 (2015), the Supreme Court struck
down as unconstitutionally vague the ACCA’s residual clause.
Id. at 2555-58,
2563 (2015). The Court held that the requirement for courts to apply the
“imprecise ‘serious potential risk’ standard” in the “residual clause” to the
“judicially imagined ‘ordinary case’” of a crime, utilizing the categorical approach,
resulted in indeterminacy that “denie[d] fair notice to defendants and invite[d]
arbitrary enforcement by judges.”
Id. at 2557-58, 2563. Thereafter, the Supreme
Court held in Welch that Johnson announced a new substantive rule that applies
retroactively to cases on collateral review. Welch v. United States,
136 S. Ct.
1257, 1264-65, 1268 (2016).
More recently, in Sessions v. Dimaya,
138 S. Ct. 1204 (2018), the Supreme
Court reviewed the Board of Immigration Appeals’s determination that California
convictions for first-degree burglary were “crimes of violence,” as defined in
18
U.S.C. § 16(b), thereby rendering an alien removable for having been convicted of
an aggravated felony.
Id. at 1211. In contrast to the language of the ACCA that
was invalidated in Johnson, the “residual clause” in § 16(b), which had been
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incorporated into the Immigration and Nationality Act, defined a “crime of
violence” as “any other offense that is a felony and 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. (quoting
18 U.S.C. § 16(b)).
Discounting the “textual discrepancies” between the statutory language of the
ACCA and § 16(b), the Court in Dimaya struck down § 16(b)’s “residual clause,”
repeatedly stating that a “straightforward application” of the Johnson decision to
§ 16(b) demonstrated that it also was void for vagueness. Id. at 1210, 1213-16,
1218-23. The Court explained that, because § 16(b) possessed the same two “fatal
feature[s]”—the ordinary-case requirement and an ill-defined risk threshold—as
did the ACCA’s residual clause, it likewise produced “more unpredictability and
arbitrariness than the Due Process Clause tolerate[d].” Id. at 1213-16 (quotation
marks omitted).
Distinct from the ACCA and § 16(b), 18 U.S.C. 924(c) provides for a
mandatory consecutive sentence for any defendant who uses or carries 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
(B) that by its nature, involves a substantial risk that physical force
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against the person or property of another may be used in the
course of committing the offense.
Id. § 924(c)(3)(A), (B) (emphasis added). Section 924(c)(3)(A) is referred to as
the “elements clause,” while § 924(c)(3)(B) is referred to as the “residual clause.”
United States v. Davis, No. 18-431,
2019 WL 2570623 at *3 (U.S. June 24, 2019).
Here, McCain’s claim necessarily fails under the elements clause. Our
binding precedent holds that Hobbs Act robbery—the statute underlying both of
McCain’s predicate convictions—qualifies as a “crime of violence” under
§ 924(c)(3)(A)’s elements clause. See St. Hubert, 909 F.3d at 345-46. As a result,
McCain’s convictions in counts 2 and 4 are valid despite the Supreme Court’s
recent holding that § 924(c)(3)(B)’s residual clause is unconstitutionally vague.
See Davis,
2019 WL 2570623 at *13. Accordingly we affirm his convictions.
AFFIRMED.
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