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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-15696
Non-Argument Calendar
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D.C. Docket Nos. 8:16-cv-01677-RAL-TBM,
8:10-cr-00230-RAL-TBM-1
CARLOS LAMAR MITCHELL,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(April 2, 2019)
Before TJOFLAT, JORDAN, and GRANT, Circuit Judges.
PER CURIAM:
Carlos Lamar Mitchell, a federal prisoner serving a 189-month sentence for
bank robbery,
18 U.S.C. § 2113(a), and brandishing a firearm during and in
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relation to a crime of violence,
18 U.S.C. § 924(c)(1)(A)(ii), appeals the district
court’s dismissal of his motion to vacate his sentence based on Johnson v. United
States, 576 U.S. ___,
135 S. Ct. 2551 (2015). Finding no error, we affirm.
In June 2015, the Supreme Court issued its opinion in Johnson, holding that
the definition of “violent felony” in the so-called “residual clause” of the Armed
Career Criminal Act was unconstitutionally vague. The following year, Mitchell
filed a motion to vacate his sentence pursuant to
28 U.S.C. § 2255, arguing that the
definition of “crime of violence” in § 924(c)(3)(B)’s residual clause was
unconstitutional under Johnson, and that bank robbery did not otherwise qualify as
a crime of violence for purposes of § 924(c).
The district court found that Johnson did not invalidate Mitchell’s
conviction under § 924(c) and dismissed his motion to vacate. We granted
Mitchell a certificate of appealability on the following issue: “Whether the district
court erred in concluding that Mitchell’s conviction under
18 U.S.C. § 924(c),
predicated on a bank robbery conviction under
18 U.S.C. § 2113(a), was
unaffected by the Supreme Court’s ruling in Johnson v. United States, 576 U.S.
___,
135 S. Ct. 2551 (2015).” In reviewing the district court’s dismissal of a
motion to vacate under § 2255, we review the court’s legal conclusions de novo
and its findings of fact for clear error. Stoufflet v. United States,
757 F.3d 1236,
1239 (11th Cir. 2014).
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For purposes of § 924(c), a “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.”
18 U.S.C.
§ 924(c)(3). This Court has referred to § 924(c)(3)(A) as the “elements clause,”
while § 924(c)(3)(B) is referred to as the “residual clause.” Ovalles v. United
States,
905 F.3d 1231, 1234 (11th Cir. 2018) (en banc).
In Ovalles, we held that § 924(c)’s residual clause is not unconstitutionally
vague under Johnson as long as it is interpreted to require “a conduct-based
approach, pursuant to which the crime-of-violence determination should be made
by reference to the actual facts and circumstances underlying a defendant’s
offense.” 905 F.3d at 1234. Ovalles forecloses Mitchell’s argument on appeal.
See In re Garrett,
908 F.3d 686, 689 (2018) (holding, in the context of a second or
successive § 2255 motion, that Johnson and its progeny do not “support a
vagueness-based challenge to the residual clause of section 924(c)”).
In any event, even if Johnson did invalidate § 924(c)(3)’s residual clause,
Mitchell’s conviction still would be unaffected because his predicate offense of
bank robbery also qualifies as a crime of violence under the elements clause,
§ 924(c)(3)(A). In re Sams,
830 F.3d 1234, 1238–39 (11th Cir. 2016) (holding, in
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denying an application to file a second or successive § 2255 motion, that § 2113(a)
bank robbery qualifies as a crime of violence under § § 924(c)(3)(A)). This is
because § 2113(a)—which requires the use of force and violence or intimidation—
necessarily requires the use, attempted use, or threatened use of physical force. Id.
at 1238–39; cf. Johnson,
135 S. Ct. at 2563 (clarifying that the invalidation of the
ACCA’s residual clause did not call into question either the enumerated crimes
clause or the elements clause).
Mitchell contends that Sams does not govern in his case because orders
ruling on applications to file second or successive collateral attacks have no
precedential value outside that context. This argument too is foreclosed by circuit
precedent. In United States v. St. Hubert, we held that “law established in
published three-judge orders issued pursuant to
28 U.S.C. § 2244(b) in the context
of applications for leave to file second or successive § 2255 motions is binding
precedent on all subsequent panels of this Court, including those reviewing direct
appeals and collateral attacks, ‘unless and until [it is] overruled or undermined to
the point of abrogation by the Supreme Court or by this court sitting en banc.’”
909 F.3d 335, 346 (11th Cir. 2018) (alteration in the original) (citation omitted).
The district court correctly concluded that Johnson provides no basis for
invalidating Mitchell’s conviction under
18 U.S.C. § 924(c)(1)(A). We therefore
affirm.
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AFFIRMED.
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