Carlos Marcano, Jr. v. United States ( 2017 )


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  •               Case: 16-16337    Date Filed: 11/08/2017    Page: 1 of 7
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 16-16337
    Non-Argument Calendar
    ________________________
    D.C. Docket Nos. 1:16-cv-22405-JLK,
    1:12-cr-20654-JLK-1
    CARLOS MARCANO, JR.,
    Petitioner-Appellant,
    versus
    UNITED STATES OF AMERICA,
    Respondent-Appellee.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    ________________________
    (November 8, 2017)
    Before ED CARNES, Chief Judge, MARTIN, and ANDERSON, Circuit Judges.
    PER CURIAM:
    Carlos Marcano, Jr. appeals the district court’s denial of his 
    28 U.S.C. § 2255
     motion to vacate his sentence and conviction. In 2012 Marcano was
    Case: 16-16337     Date Filed: 11/08/2017   Page: 2 of 7
    convicted of brandishing a firearm during a “crime of violence,” in violation of 
    18 U.S.C. § 924
    (c). The crime was premised on Marcano’s display of that weapon
    during a carjacking (which he was also convicted of). He contends that in light of
    the Supreme Court’s decision in Johnson v. United States, 576 U.S. ___, 
    135 S. Ct. 2551
     (2015), his carjacking conviction under 
    18 U.S.C. § 2119
     no longer qualifies
    as a “crime of violence” under § 924(c).
    I.
    In 2012 Marcano walked into an auto repair shop and requested to test drive
    a car. The seller agreed and accompanied him on the drive. After a few minutes
    Marcano abruptly stopped the car and told the seller he needed to call his mother.
    But instead of calling his mother, Marcano reached into his pocket, pulled out a
    gun, pointed it at the seller’s face, and ordered him to get out of the car. The seller
    left and immediately called the police. Later that day police caught Marcano
    attempting to wipe the “for sale” markings off of the car’s windows. Police found
    the gun and keys to the car in Marcano’s pants pockets.
    Marcano was indicted on two counts: carjacking, in violation of § 2119, and
    brandishing a firearm during a crime of violence, in violation of § 924(c)(1)(A)(ii).
    He pleaded guilty to both. The district court imposed a sentence of 1 day for the
    carjacking conviction and 84 months for the § 924(c) conviction, to be served
    consecutively. Marcano did not seek a direct appeal.
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    In June 2016 Marcano filed a 
    28 U.S.C. § 2255
     motion, contending that his
    § 924(c) conviction is no longer valid, because carjacking no longer constitutes a
    “crime of violence” in light of the Supreme Court’s decision in Johnson, 
    135 S. Ct. 2551
    . The district court denied Marcano’s motion. It determined that carjacking
    was still a crime of violence under § 924(c)’s use-of-force clause even if Johnson
    applied to § 924(c)’s risk-of-force clause. The district court denied Marcano a
    certificate of appealability, but we granted him one on the issue of “[w]hether the
    District Court erred in concluding Mr. Marcano’s conviction under 
    18 U.S.C. § 924
    (c), predicated on carjacking, was unaffected by the Supreme Court’s ruling
    in [Johnson].”
    II.
    In reviewing a district court’s denial of a § 2255 motion, we review de novo
    its legal conclusions and its factual findings for clear error. Osley v. United States,
    
    751 F.3d 1214
    , 1222 (11th Cir. 2014). We may affirm for any reason supported by
    the record, even if the district court did not rely on it, United States v. Al-Arian,
    
    513 F.3d 1184
    , 1189 (11th Cir. 2008), though the scope of our “review is limited to
    the issues specified in the COA,” Rhode v. United States, 
    583 F.3d 1289
    , 1291
    (11th Cir. 2009). Whether a particular offense is a “crime of violence” under
    § 924(c) is a question of law that we review de novo. United States v. McGuire,
    
    706 F.3d 1333
    , 1336 (11th Cir. 2013).
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    Section 924(c) provides for a mandatory consecutive sentence of at least
    seven years for any defendant who brandishes a firearm during a crime of violence.
    
    18 U.S.C. § 924
    (c)(1). Under § 924(c), a “crime of violence” is a felony that:
    (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.
    Id. § 924(c)(3)(A), (B). We have referred to the first prong of the definition as the
    “use-of-force” clause and the second prong as the “risk-of-force” clause. Ovalles
    v. United States, 
    861 F.3d 1257
    , 1263 (11th Cir. 2017).
    Marcano contends that his conviction and sentence under § 924(c) should be
    vacated because carjacking no longer qualifies as a “crime of violence.” He argues
    that based on the Supreme Court’s decision in Johnson, § 924(c)’s risk-of-force
    clause is unconstitutionally vague. He also argues that carjacking is not a “crime
    of violence” under the use-of-force clause because it can be committed by
    intimidation, which does not require the “use, attempted use, or threatened use of
    physical force.” 
    18 U.S.C. § 924
    (c)(3)(A).
    In Johnson, the Supreme Court held that the “residual clause” in the Armed
    Career Criminal Act’s definition of “violent felony,” was unconstitutionally vague.
    
    135 S. Ct. at 2556
    . That clause defined a “violent felony” as a crime that “involves
    conduct that presents a serious potential risk of physical injury to another.”
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    18 U.S.C. § 924
    (e)(2)(B)(ii). The Court stated that the residual clause created
    uncertainty about how to evaluate the “potential risk of physical injury” posed by a
    prior criminal act and the amount of risk necessary to be “serious.” Johnson, 
    135 S. Ct. at
    2557–58, 2563. That defect rendered the residual clause
    unconstitutionally vague. 
    Id.
     The Supreme Court later held in Welch v. United
    States that Johnson announced a new substantive rule that applied retroactively to
    cases on collateral review. 578 U.S. ___, 
    136 S. Ct. 1257
    , 1268 (2016).
    We recently considered whether Johnson invalidates a conviction under
    § 924(c) predicated on carjacking in our Ovalles decision. See 
    861 F.3d 1257
    . We
    affirmed the denial of the petitioner’s § 2255 motion to vacate her § 924(c)
    conviction and sentence for using and carrying a firearm during an attempted
    carjacking under § 2119. Id. at 1269. Although we noted that the language in
    § 924(e)’s residual clause and § 924(c)’s risk-of-force clause is similar, we
    determined that “Johnson does not apply to, or invalidate, the risk-of-force clause
    in § 924(c)(3)(B).” Id. at 1266. We explained that several material differences —
    textual and contextual — clarify the application of the risk-of-force clause, unlike
    the unpredictable and speculative determination that § 924(e)’s residual clause
    required. Id. at 1263–67. The risk-of-force clause in § 924(c) has a distinct
    purpose of punishing firearm use in connection with a specific crime rather than
    recidivism. Id. at 1264. Moreover, the determination of § 924(c) is much more
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    concrete than § 924(e) — § 924(c)’s risk-of-force clause is tailored to the risk
    presented by the current offense instead of looking back to an old crime. Id. at
    1266. And the determination in § 924(c) is freed from the “confusing list of
    exemplar crimes” that plagued § 924(e)’s residual clause. Id.; see also Johnson,
    
    135 S. Ct. at 2561
     (noting that the residual clause was interpreted by comparing it
    to a “confusing list” of enumerated crimes that appears immediately before it in
    § 924(e)(2)(B)(ii), specifically burglary, arson, or extortion, or any crime involving
    the use of explosives). For those reasons, the risk-of-force clause of § 924(c) has
    not caused the same interpretive difficulties as the residual clause of § 924(e).
    Ovalles, 861 F.3d at 1266.
    Based on the material differences between the two statutes, we concluded
    the risk-of-force clause of § 924(c) remains valid after Johnson. Id. at 1267. As a
    result, we held that attempted carjacking qualifies as a crime of violence under the
    risk-of-force clause. Id. We also held that as alternative and independent grounds
    for affirmance, attempted carjacking categorically qualifies as a crime of violence
    under the use-of-force clause of § 924(c)(3)(A) as well. Id.; see also In re Smith,
    
    829 F.3d 1276
    , 1280–81 (11th Cir. 2016) (concluding in the successive § 2255
    petition context that even if Johnson invalidated the risk-of-force clause, a § 2119
    carjacking is still a crime of violence under § 924(c)’s use-of-force clause).
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    Although Marcano’s crime involves a completed carjacking as opposed to
    an attempted one, his claims are identical to the petitioner’s claims in Ovalles.
    Under the prior panel precedent rule, we are bound to follow the holding in Ovalles
    “unless and until it is overruled or undermined to the point of abrogation by the
    Supreme Court or by this Court sitting en banc.” In re Lambrix, 
    776 F.3d 789
    , 794
    (11th Cir. 2015). Because that has not happened, we must apply Ovalles. As a
    result, Marcano’s claims fail. 1 His § 924(c) conviction is still valid after Johnson,
    and the district court did not err by denying his § 2255 motion.
    AFFIRMED.
    1
    Marcano also argues that the Supreme Court’s upcoming decision in Sessions v.
    Dimaya, U.S. No. 15-1498, argued Jan. 17, 2017, reargued Oct. 2, 2017, could bear on the
    validity of the risk-of-force clause because it concerns the identical language in 
    18 U.S.C. § 16
    (b). Again, as we explained in Ovalles, “the task in § 16(b) cases is not as precise and
    predictable as in § 924(c)(3)(B) cases.” 861 F.3d at 1267. Section 16(b) involves a recidivist
    statute, requiring a judgment about a past conviction as opposed to a contemporaneous crime
    required by § 924(c). Id. And even if the Supreme Court’s decision in Dimaya throws
    § 924(c)(3)(B) into question, it doesn’t change the fact that Marcano’s carjacking is still a crime
    of violence under § 924(c)(3)(A)’s use-of-force clause. Id. Our holding in Ovalles that a § 2119
    carjacking is a crime of violence as defined by the use-of-force clause was alternative and
    independent of our determination that it was a crime of violence as defined by the risk-of-force
    clause. Id. Alternative holdings are just as binding as solitary ones. Kilgore v. Sec’y, Fla. Dept.
    of Corr., 
    805 F.3d 1301
    , 1315 (11th Cir. 2015). So it is unlikely that the Supreme Court’s
    decision in Dimaya will affect this case.
    7
    

Document Info

Docket Number: 16-16337 Non-Argument Calendar

Judges: Carnes, Martin, Anderson

Filed Date: 11/8/2017

Precedential Status: Non-Precedential

Modified Date: 11/6/2024