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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-15464
Non-Argument Calendar
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D.C. Docket No. 4:17-cr-00015-CDL-MSH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCOS HENDERSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
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(January 7, 2020)
Before WILLIAM PRYOR, JILL PRYOR, and NEWSOM, Circuit Judges.
PER CURIAM:
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Marcos Henderson is a federal prisoner serving a total sentence of 152-
months’ imprisonment. In 2017, Henderson pleaded guilty to four counts: two
counts of Hobbs Act robbery in violation of 18 U.S.C. § 1951 (Counts 1 and 2),
one count of possession of a firearm in furtherance of a crime of violence
(specifically, the Hobbs Act robbery underlying the second count) in violation of
18 U.S.C. § 924(c)(1)(A)(i) (Count 3), and one count of possession of a firearm by
a convicted felon in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (Count 4).
Henderson now appeals the district court’s denial of his motion to dismiss the
§ 924(c) count—possession of a firearm in furtherance of a crime of violence.1
Relying on the Supreme Court’s recent decision in United States v. Davis, 139 S.
Ct. 2319 (2019), Henderson argues that Hobbs Act robbery is not a crime of
violence under § 924(c) and that the district court therefore abused its discretion
when it denied his motion to dismiss.
We affirm. As this Circuit has previously recognized, Henderson’s
predicate offense of Hobbes Act robbery qualifies as a crime of violence under the
use-of-force clause in § 924(c)(3)(A). Thus, although the Davis Court invalidated
the residual clause in § 924(c)(3)(B), Henderson’s conviction remains valid.
1
In his plea agreement, Henderson retained the right to appeal the district court’s denial of his
motion to dismiss.
2
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I
We review the denial of a motion to dismiss a charge in an indictment for
abuse of discretion. United States v. Pendergraft,
297 F.3d 1198, 1204 (11th Cir.
2002) (citation omitted). A district court abuses its discretion when it makes an
error of law. United States v. Hill,
643 F.3d 807, 874 (11th Cir. 2011) (citations
omitted). Whether an offense qualifies as a crime of violence under § 924(c) is a
question of law. United States v. McGuire,
706 F.3d 1333, 1336 (11th Cir. 2013),
overruled in part on other grounds by Ovalles v. United States,
905 F.3d 1231,
1234 (11th Cir. 2018) (en banc), cert. denied,
139 S. Ct. 2716 (2019), and
abrogated by
Davis, 139 S. Ct. at 2336.
Section 924(c) of Title 18 of the United States Code criminalizes the use or
carrying of a firearm in furtherance of a crime of violence or drug-trafficking
crime. 18 U.S.C. § 924(c). “Crime of violence” is defined as a felony offense that
either:
(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).
Subsection (A) is known as the “use-of-force” clause while subsection (B) is
known as the “residual” clause. In re Fleur,
824 F.3d 1337, 1339 (11th Cir. 2016).
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In Davis, the Supreme Court extended its holdings in Johnson v United States,
135
S. Ct. 2551 (2015), and Sessions v. Dimaya,
138 S. Ct. 1204 (2018), to § 924(c)
and held that § 924(c)(3)(B)’s residual clause, like the residual clauses in the
Armed Career Criminal Act and 18 U.S.C. § 16(b), is unconstitutionally vague.
Davis, 139 S. Ct. at 2325–27, 2336.
II
Henderson argues that his § 924(c) conviction is invalid because the district
court held that his § 924(c) predicate offense—the Hobbs Act robbery in Count
2—qualified as a “crime of violence” under § 924(c)(3)(B)’s now-void residual
clause. The problem with this argument is that, although the district court did hold
that Hobbs Act robbery is a “crime of violence” under § 924(c)(3)(B)’s now-void
residual clause, it alternatively held that Hobbs Act robbery is a “crime of
violence” under § 924(c)(3)(A)’s use-of-force clause. See Dist. Ct. Order Denying
Mot. to Dismiss at 8. And Davis left § 924(c)(3)(A)’s use-of-force clause
untouched.
See 139 S. Ct. at 2336.
As he must, therefore, Henderson also attempts to argue that the district
court erred when it concluded that Hobbs Act robbery constitutes a “crime of
violence” under § 924(c)(3)(A)’s use-of-force clause. The problem here is that
binding circuit precedent is to the contrary. We have held that a “conviction for
Hobbs Act robbery . . . clearly qualifies as a ‘crime of violence’ under the use-of-
4
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force clause in § 924(c)(3)(A).” In re
Fleur, 824 F.3d at 1340; see also In re
Cannon,
931 F.3d 1236, 1242 (11th Cir. 2019) (holding, post-Davis, that Hobbs
Act robbery qualifies as a crime of violence under the use-of-force clause in
§ 924(c)(3)(A)); United States v. St. Hubert,
909 F.3d 335, 349 (11th Cir. 2018)
(“Hobbs Act robbery is categorically a crime of violence under the use-of-force
clause in § 924(c)(3)(A).”), petition for cert. filed, No. 19-5267 (2019). Thus,
despite Davis’s holding that § 924(c)(3)(B)’s residual clause is unconstitutionally
vague, Henderson’s § 924(c) conviction remains valid.
III
Based on the foregoing, we hold that the district court’s decision denying
Henderson’s motion to dismiss is AFFIRMED.
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