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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
Nos. 16-13661-J, 16-14000-J
IN RE: JEFFREY SMITH,
Petitioner.
Application for Leave to File a Second or Successive
Motion to Vacate, Set Aside,
or Correct Sentence, 28 U.S.C. § 2255(h)
Before HULL,JULIE CARNES,and JILL PRYOR,Circuit Judges.
BY THE PANEL:
Jeffrey Smith was convicted by a jury ofcarjacking, in violation of 18 U.S.C.
§ 2119, and carrying and using a firearm during this crime of violence, in violation
of 18 U.S.C. § 924(c). The convictions arose out of a carjacking during which one
ofthe victims was shot to death. Smith has filed an application seeking an order
authorizing the district court to consider a second or successive motion to vacate, set
aside, or correct his federal sentence under 28 U.S.C. § 2255. Such authorization
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may be granted only ifthis Court certifies that the second or successive motion
contains a claim involving:
(1)newly discovered evidence that, ifproven and viewed in light
ofthe evidence as a whole, would be sufficient to establish by
clear and convincing evidence that no reasonable factfinder
would have found the movant guilty ofthe offense; or
(2)a new rule ofconstitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable.
28 U.S.C.§ 2255(h). Only the second subsection above—assertion ofa new rule of
constitutional law—is at issue here.
We may authorize the filing of a second or successive motion only if we first
determine that the applicant has made a primafacie showing that satisfies the
requirements ofthis subsection. 28 U.S.C. § 2244(b)(3)(C); see also Jordan v.
Sec y, Dep Y ofCorr.,485 F.3d 1351,1357-58(11th Cir. 2007)(explaining that this
Court's determination that an applicant has made a primafacie showing that the
statutory criteria have been met is simply a threshold determination).
Smith filed two applications, one pro se, and one counseled. We
consolidated those applications, and, because the applications raise substantially the
same claim, we consider them together. In his applications. Smith indicates that he
wishes to raise one claim in a second or successive § 2255 motion. Smith asserts
that his claim relies upon the new rule ofconstitutional law announced in Johnson v.
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United States, 576 U.S. ,135 S. Ct. 2551 (2015). \n Johnson, the Supreme Court
held that because the residual clause ofthe "violent felony" definition in the Armed
Career Criminal Act("ACCA")is unconstitutionally vague, imposition of an
enhanced sentence under that provision violates the Fifth Amendment's guarantee
of due process. The Supreme Court made clear that its ruling on the residual
clause did not call into question the validity ofthe elements clause or the
enumerated crimes clause ofthe ACCA's definition of a violent felony.^ Id. at
, 135 S. Ct. at 2563. Smith's applications also cite Welch v. United States, 578
U.S. ,136 S. Ct. 1257(2016), in which the Supreme Court held that Johnson
applies retroactively to cases on collateral review. In short. Smith asserts that his
conviction and sentence under § 924(c) are no longer valid in light ofJohnson.
In light ofthe Supreme Court's holdings in Johnson and Welch, federal
prisoners who make a primafacie showing that they previously were sentenced in
reliance on the ACCA's now-void residual clause are entitled to file a second or
successive § 2255 motion in the district court. However, merely asserting, in the
^ The ACCA calls for an enhanced sentence for a defendant who has three prior predicate
convictions and who has been convicted under 18 U.S.C. § 922(g), which, among other things,
prohibits a felon from possessing a firearm. A predicate conviction for a violent felony can
qualify either under(1)the elements clause(§ 924(e)(2)(B)(i))(a prior crime having as an element
the use, attempted use, or threatened use of physical force against the person ofanother);(2)the
enumerated crimes clause(§ 924(e)(2)(B)(ii))(burglary, arson, extortion or use of explosives); or
(3)the residual clause(§ 924(e)(2)(B)(ii))(crime that presents a serious potential risk of physical
injury to another).
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abstract, a ground that purportedly meets § 2255(h)'s requirements "represent[s] the
minimum showing" necessary to file a successive § 2255 motion. In re Holladay,
331 F.3d 1169, 1173(11th Cir. 2003)(granting a state death-row inmate's
successive application because he had proffered detailed evidence, in satisfaction of
§ 2244(b)(3)(C), that showed "a reasonable likelihood that he is in fact mentally
retarded" to support his proposed Atkins claim). Rather, § 2244(b)(3)(C)requires
the applicant to make "a primafacie showing that the application satisfies the
requirements ofthis subsection." Id. Accordingly, it is not enough for a federal
prisoner to merely cite Johnson as the basis for the claim he seeks to raise in a
second or successive § 2255 motion. Instead, the prisoner must also make a prima
facie showing that he falls within the scope ofthe new substantive rule announced in
Johnson. See id; 28 U.S.C. § 2244(b)(3)(C).
Potential Applicability of Johnson to a Non-ACCA Statute
As noted,Johnson rendered the residual clause ofthe ACCA invalid. It said
nothing about the validity ofthe definition ofa crime of violence found in
§ 924(c)(3), which prohibits using or carrying a firearm during a crime of violence.
Section 924(c)creates a separate crime and provides for a mandatory consecutive
sentence for a defendant who uses a firearm during a crime of violence or a drug
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trafficking crime. 18 U.S.C. § 924(c)(1). For 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 against the person or property of another may be used in
the course of committing the offense.
18 U.S.C. § 924(c)(3).
Subsection(A)is often referred to as the force clause,the use-of-force clause,
or the elements clause. Subsection(B)is often referred to as the residual clause or
the substantial-risk clause. We will refer to the clauses, respectively, as the force
clause and the residual clause.
As noted. Smith contends that the rule promulgated in Johnson, which held
the residual clause ofthe ACCA to be unconstitutionally vague, means that
§ 924(c)'s residual clause must likewise suffer the same fate. Further, as this
argument goes, because Johnson applies retroactively for purposes of permitting a
second or successive § 2255 motion,then a prisoner who was not convicted ofan
ACCA violation may also rely on Johnson and Welch to gain permission to file a
second or successive motion attacking a conviction under a different statute. This
contention, however, is not self-evident and, indeed, there are good reasons to
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question an argument thdX Johnson mandates the invalidation of§ 924(c)'s particular
residual clause, as set out in § 924(c)(3)(B).
First, an analysis ofa statute's vagueness is necessarily dependent on the
particular words used and, while similar, the language in the two statutes is not the
same.2 Not only did
• •
the Supreme Court in Johnson decline to expressly invalidate
§ 924(c)'s residual clause, it further refused to broadly condemn other criminal laws
that used risk-based terms. Johnson, 135 S. Ct. at 2561 (indicating that, contrary to
fears expressed by the Government, its holding did not mean that other criminal
statutes that used terms such as "substantial risk" were necessarily in "constitutional
doubt"). Second,§ 924(c)'s residual clause has not been subject to the same kind
of uncertainty in application that long plagued the residual clause ofthe ACCA and
ultimately led the Supreme Court to strike that clause. See id, at 2559-60
(discussing the uncertainty experienced in applying the ACCA's residual clause).
In short, there are reasons to question whether the Supreme Court's striking ofthe
2 • • •
Section 924(c)(3) defines a crime ofviolence as a felony offense that"(A)has as an element the
use, attempted use, or threatened use ofphysical force against the person or property ofanother, or
(B)that by its nature, involves a substantial risk that physical force against the person or property
ofanother may be used in the course ofcommitting the offense." Section 924(c)(3)(B)is similar,
but not identical,to the language ofthe ACCA residual clause invalidated by the Supreme Court in
Johnson. Specifically, the residual clause ofthe ACCA counts as qualifying a crime that involves
conduct that presents a serious potential risk ofphysical injury to another. See 18 U.S.C.
§ 924(e)(2)(B)(ii). The residual clause of§ 924(c),on the other hand,requires a crime that, by its
nature, involves a substantial risk that physicalforce may be used against people or property. See 18
U.S.C. § 924(c)(3)(B).
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ACCA's residual clause means that § 924(c)'s clause is also invalid and, if so,
whether the Supreme Court has expressed that conclusion clearly enough in Johnson
to warrant permitting a prisoner convicted under § 924(c)to file a second or
successive petition on such an uncertain basis.
Nevertheless, in executing our gatekeeper function as to claims asserting that
§ 924(c)'s residual clause is now also invalid as a result ofJohnson, we have
assumed,as a threshold matter,that it might be. See In re Pinder,No. 16-12084,
F.3d ,2016 WL 3081954,at *2(11th Cir. June 1,2016). But where it is clear that
a § 924(c) conviction is based on an underlying offense that satisfies the statute's
force clause, we have said so and, in those cases, we have denied the application for
a second or successive § 2255 motion. For example, we have held that armed bank
robbery and Hobbs Act robbery clearly meet the requirements of§ 924(c)(3)(A)'s
force clause, and therefore have found no primafacie showing by an applicant who
seeks to make a Johnson challenge as to those convictions in a successive motion.
See In re Mines, No. 16-12454, _ F.3d _,2016 WL 3189822, at *2-3(11th Cir.
June 8,2016)(explaining that armed bank robbery under 18 U.S.C.§ 2113 is a crime
ofviolence under § 924(c)(3)(A)'s force clause);In re Saint Fleur,No. 16-12299,
F.3d ,2016 WL 3190539, at *3-4, manuscript order at 6-7(11th Cir. June 8,
2016)(concluding that Hobbs Act robbery under 18 U.S.C. § 1951 is a crime of
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violence under § 924(c)(3)(A)'s force clause). When it is uncertain whether the
underlying offense satisfies § 924(c)(3)'s force clause, we have granted the
application. See In re Pinder, 2016 WL 3081954 at *2(holding that an applicant
made a primafacie case,for purposes ofsecond or successive review, when seeking
to challenge a conviction for conspiracy to commit Hobbs Act robbery based on an
argument that such a conviction meets only the residual clause of§ 924(c)).
In sum,then, for purposes ofthis order, we will assume that we can
extrapolate from the Johnson holding that § 924(c)'s residual clause is also
unconstitutional. But as explained below, even making that assumption, we
conclude that Smith has not made a primafacie case that Johnson renders his
§ 924(c)conviction invalid.
A Carjacking Conviction under 18 U.S.C.$ 2119 Satisfies 8 924(cVs Force
Clause
As explained above. Smith contends that the rule promulgated in Johnson,
which held the residual clause ofthe ACCA to be unconstitutionally vague, means
that § 924(c)'s residual clause must likewise suffer the same fate. While skeptical
ofthe merits ofthis argument, we will assume for now that Smith is correct.
Consistent with that assumption, if § 924(c) now lacks a residual clause, all that
remains is the force clause. Smith asserts that a federal conviction for carjacking
under § 2119 does not meet the requirements ofthe force clause and, that being so,
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carjacking can never be deemed a crime of violence. For this reason, Smith argues
he should be allowed to pursue a second § 2255 motion to seek to have his § 924(c)
conviction overturned.
We disagree. Even assuming that Johnson invalidated § 924(c)'s residual
clause, that conclusion would not assist Smith because the elements ofthe
underlying conviction on which his § 924(c)conviction was based—carjacking,in
violation of 18 U.S.C. § 2119—^meet the requirements that the force clause in
§ 924(c)(3)(A)sets out for a qualifying underlying offense. In fact, our precedent
says just that. In United States v. Moore,43 F.3d 568(11th Cir. 1994), we held:
The term crime of violence^'' as Congress defined it in 18 U.S.C
§ 924(c)(3) clearly includes carjacking. "Tak[ing] or attempt[ing]
to take by force and violence or by intimidation," 18 U.S.C. § 2119,
encompasses "the use, attempted use, or threatened use of physical
force ...." 18 U.S.C. § 924(c)(3)(A).
Id. at Sll-13(emphasis added). Stated another way,an element requiring that one
take or attempt to take by force and violence or by intimidation, which is what the
federal carjacking statute does, satisfies the force clause of§ 924(c), which requires
the use, attempted use, or threatened use ofphysical force.^ In short, our precedent"*
^ Our dissenting colleague points out that,following its statement that the elements ofa carjacking
offense satisfy the force clause(§ 924(c)(3)(A)), the opinion in Moore notes that those elements
also satisfy the § 924(c)(3)(B)'s residual clause. From that, the dissent argues that the opinion
could be read as relying on the residual clause. We do not read Moore in this way. By setting
out each ofthe two clauses of§ 924(c)(3) and concluding that carjacking meets each ofthem, we
find Moore's holding to be clear.
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holds that carjacking in violation of§ 2119 satisfies § 924(c)'s force clause, and that
ends the discussion.^
Accordingly, regardless ofthe validity of§ 924(c)'s residual clause. Smith's
§ 924(c)conviction meets the requirements ofthat statute's force clause.
Therefore, Smith has failed to make aprimafacie showing that he has raised a claim
that meets the statutory criteria and his application is therefore DENIED.
Although we have binding precedent to support our conclusion, we do not concede that such
precedent is required. Citing In re Rogers,the dissent asserts that we are required to grant an
application unless "it is clear under 'on-point binding precedent [that] a particular crime
categorically qualifies' as a crime of violence notwithstanding Johnson.'''' Dissenting Ord. at 3
(quoting In re Rogers, No. 16-12626, ^F.3d ,2016 WL 3362057, at *2(11th Cir. June 17,
2016)). But we have held that this language in In re Rogers addressed only an ACCA challenge,
not a challenge ofa § 924(c) conviction. And given the significant difference between those two
types of challenges, we held that Rogers^s statement regarding the need for prior precedent does
not apply in this context. See In re Gordon, No. 16-13681 & 16-13803, F.3d ,2016 WL
3648472, at *4 n.4(11th Cir. July 8, 2016).
^ We also disagree with the dissent's suggestion that the Supreme Court's decision in Holloway
V. United States, 526 U.S. 1,11 (1999)undermines Moore. The dissent reads Holloway as
indicating that a defendant could be found guilty ofcarjacking ifa driver surrenders his car, even if
the defendant never used, attempted to use, or threatened to use physical force, so long as the
defendant had the intent to inflict death or serious bodily harm. Respectfully, we do not read
Holloway as making such a pronouncement. Ifone reads the sentences that precede the language
quoted by the dissent, it appears that the Supreme Court is saying nothing more than not every
threat, accompanied by the taking ofa vehicle, renders one guilty ofcarjacking. Instead, a taking
preceded by a threat will be insufficient unless there is also at least a conditional intent to inflict
bodily harm. Hence,that the driver-victim may have surrendered his car based on an "empty
threat" or "intimidating bluff," id, by the defendant does not mean that the latter is guilty of
caijacking unless he also intended to inflict physical harm on the victim. See id.
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JILL PRYOR,Circuit Judge, dissenting:
I respectfully dissent from the decision to deny Jeffrey Smith's application
to file a second or successive 28 U.S.C. § 2255 motion.
Mr. Smith argues ihdX Johnson v. United States, 135 S. Ct. 2551 (2015),
makes his 18 U.S.C. § 924(c)sentence unlawful. In Johnson,the Supreme Court
struck a portion ofthe Armed Career Criminal Act("ACCA")as unconstitutionally
vague. Generally speaking, the ACCA imposes an enhanced mandatory
minimum term ofimprisonment for individuals convicted of being a felon in
possession ofa firearm who had at least three prior violent felonies or serious drug
offenses. 18 U.S.C. § 924(e)(1). The ACCA provides three definitions of
"violent felony." Section 924(e)(2)(B)(i), the "elements clause," covers any
offense that"has as an element the use, attempted use, or threatened use of
physical force against the person of another." Section 924(e)(2)(B)(ii) covers any
offense that "is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of physical injury
to another." The first 9 words ofthat subsection make up the "enumerated crimes
clause," and the last 13 make up the "residual clause." Johnson struck the
residual clause from the ACCA.
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Mr. Smith was sentenced under 18 U.S.C. § 924(c), which requires a higher
prison sentence whenever an individual uses a firearm during and in relation to a
"crime of violence." 18 U.S.C. § 924(c)(1)(A). The definition of"crime of
violence" under § 924(c)is "very similar" to that in the ACCA. In re Pinder, No.
16-12084, F.3d ,2016 WL 3081954,*1 (11th Cir. June 1, 2016)(authorizing
a second or successive § 2255 motion in a § 924(c)case based on Johnson), A
"crime of violence" under § 924(c)is a felony offense 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.
18 U.S.C. § 924(c)(3)(B). The statute, then, contains an elements clause
(subsection A)and a residual clause (subsection B).
Mr. Smith received a § 924(c)sentence enhancement based on a companion
conviction for carjacking, in violation of 18 U.S.C. § 2119. A person commits
the federal offense ofcarjacking when he,"with the intent to cause death or serious
bodily harm takes a motor vehicle that has been transported, shipped, or received
in interstate or foreign commerce from the person or presence of another by force
and violence or by intimidation," or if he attempts to do so. Id, In challenging
his § 924(c)sentence based on Johnson, Mr. Smith's application asserts that the
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statute qualifies as a crime of violence in whole or part under the residual clause.
Put differently, he is arguing that, in light ofJohnson, his carjacking offense no
longer categorically qualifies as a crime of violence.
We may only deny Mr. Smith's application if, as relevant here, it is clear
under "on-point binding precedent [that] a particular crime categorically qualifies"
as a crime of violence notwithstanding Johnson, In re Rogers, No. 16-12626,
F.3d 2016 WL 3362057,*2(11th Cir. June 17,2016).' The majority, without
citation to case law, concludes that carjacking "clearly meets the requirements for
an underlying felony offense, as set out in § 924(c)(3)(A)'s use-of-force [elements]
clause." Maj. Ord. at 5. I disagree.
Although the carjacking statute may categorically have "as an element the
use, attempted use, or threatened use of physical force" such that it necessarily
qualifies as a crime of violence even after Johnson, we have not so held. 18
U.S.C. § 924(c)(3)(A). In fact, it appears that we previously have relied at least
in part on the residual clause in concluding that carjacking qualifies as a crime of
violence. In United-States v. Moore,a panel ofthis Court explained:
'The majority, citing In re Gordon, No. 16-13681 & 16-13803, ^F.3d , 2016 WL
3648472(11th Cir. July 8,2016), states that we have "held" that Rogers is inapposite in § 924(c)
cases. Maj. Ord. at 10 n.4. But our suggestion in Gordon that Rogers^s applicability may be
limited outside the ACCA framework was not in any way essential to our holding in that case and,
therefore, merely is dicta. See United States v. Valencia-Trujillo, 573 F.3d 1171,1180 n.6(11th
Cir. 2009).
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The term "crime of violence" as Congress defined it in 18
U.S.C. § 924(c)(3) clearly includes carjacking. "Tak[ing] or
attempt[ing] to take by force and violence or by intimidation," 18
U.S.C. § 2119, encompasses "the use, attempted use, or threatened use
of physical force " 18 U.S.C. § 924(c)(3)(A). Moreover,the
defendant need not have engaged in actual violence in order for the
predicate offense to be a crime of violence under section 924(c)(1).
The offense is a crime of violence if it "by its nature, involves a
substantial risk that physical force ... may be used in the course of
committing the offense." 18 U.S.C. § 924(c)(3)(B); see also [United
States v.] Singleton, 16 F.3d [1419,] 1423 [(5th Cir. 1994)](noting
that carjacking is always and without exception a crime of violence as
that term is defined in 18 U.S.C. § 924(c)(3)).
43 F.3d 568, 572-73(11th Cir. 1994). I think it is telling that the panel in Moore
relied on the residual clause. Had the panel agreed with the majority's assertion
here that carjacking "clearly meets" the requirements ofthe elements clause, I see
no reason why it would have felt it necessary to discuss the residual clause at all.
I acknowledge that it is perhaps possible to read Moore as holding that
carjacking qualifies as a crime of violence solely under the elements clause. But I
also think it fair to intuit that both the elements clause and the residual clause were
necessary to the panel's conclusion that carjacking categorically qualified as a
crime of violence. The panel in Moore stated, for example,that the carjacking
statute "encompasses" the elements clause. In doing so, it intimated that a part of
the carjacking statute was broader than the elements clause. See Encompass,
Merriam-Webster Dictionary, http://www.merriam-webster.com/dictionary/
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encompass(defining "encompass" as "to include (something) as a part"). We can
therefore infer that the panel referenced the residual clause because it was
necessary to make up for what the elements clause did not cover.^
Even putting aside the express reasoning in Moore,I think that Mr. Smith
has a colorable argument that the offense of carjacking covers more conduct than
the elements clause and that in the absence ofthe residual clause carjacking may
not qualify as a crime of violence under § 924(c).
Notably, the carjacking statute under which Mr. Tucker was convicted can
be violated "by force and violence or by intimidation''' 18 U.S.C. § 2119
(emphasis added). Although on its face, the term "intimidation" seems
coterminous with "threatened use of physical force" as it appears in the elements
clause, our precedent indicates that may not necessarily be the case. This Court
previously has held that whether a defendant engaged in "intimidation" is analyzed
from the perspective ofa reasonable observer rather than the actions or threatened
actions ofthe defendant. See United States v. Kelley, 412 F.3d 1240, 1244-45
(11th Cir. 2005). It is thus possible for a defendant to engage in intimidation
without ever issuing a verbal threat by, for example, slamming a hand on a counter,
as occurred in Kelley. Id. at 1245. This, to me, raises a question regarding
^ Moore also construed an earlier version ofthe federal carjacking statute, but the
amendment did not affect the "by force and violence or by intimidation'' portion ofthe statute.
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whether it is possible to commit the offense ofcarjacking without ever using,
attempting to use, or threatening to use physical force as described in the elements
clause.
I note that in addition to covering acts of intimidation, the federal carjacking
statute also contains an intent element. A person commits the federal offense of
carjacking only if he acts "with the intent to cause death or serious bodily harm."
18 U.S.C. § 2119. But even if this intent requirement somewhat limits the broad
scope of conduct that otherwise qualifies as "intimidation," it does not entirely
eliminate my concern that the federal offense of carjacking covers more conduct
than does the elements clause of§ 924(c). The intent element and the "by force
and violence or by intimidation" element concern separate inquiries; if not, the
latter would be "render[ed] superfluous" by the former. Holloway v. United
States, 526 U.S. 1,11 (1999). Thus, it is possible to prove that a defendant had
the intent to commit death or serious bodily harm without proving that he used,
attempted to use, or threatened to use physical force against the victim. As the
Supreme Court explained in Holloway, a defendant could still be found guilty of
carjacking in a "case in which the driver surrendered or otherwise lost control over
his car" without the defendant ever using, attempting to use, or threatening to use
physical force so long as the government could separately satisfy the intent
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element. Id/ The government could do so by, for example, looking outside the
defendant's charged conduct and at his prior bad acts. United States v. Perez,443
F.3d 111, 779(11th Cir. 2006)(noting that it is permissible to admit
"prior-bad-acts evidence to show motive, preparation, knowledge, and intent, as
well as an ongoing scheme or plan"); Fed. R. Evid. 404(b).
Given this possibility, I think it far from a foregone conclusion that the
scope ofthe federal offense of carjacking is coextensive with that ofthe elements
clause. And if it isn't, we would have to rely on the residual clause to conclude
that carjacking categorically qualifies as a crime of violence. Moreover,ifthe
rule announced in Johnson applies to § 924(c)'s residual clause—and it may—^then
we cannot rely in part on the residual clause as we did in Moore to hold that
carjacking categorically qualifies as a crime of violence. Therefore, because
Moore may not now apply and for the reasons I have discussed, it is not clear from
our binding precedent that Mr. Tucker's § 924(c)sentence is unaffected by
Johnson's rule.
^ To be clear, I do not read Holloway as taking a stance on whether an act ofintimidation is
equivalent to a threat of violence. Rather, I cite it for what I consider to be the relatively
unremarkable conclusion that a defendant can only be convicted of carjacking if his conduct
separately satisfies both the intent element and the physical force / intimidation element. Thus, we
cannot automatically infer that a defendant threatened violence merely from the fact that he
possessed an intent to injure. Those are different inquiries and a defendant can satisfy one element
without satisfying the other.
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Nor should we decide here, in the first instance, whether carjacking
categorically qualifies as a crime of violence under the elements clause
notwithstanding the fact that it can be committed "by force and violence or by
intimidation" 18 U.S.C. § 2119(emphasis added). "To decide complex issues
offirst impression, such as whether a particular ... conviction ... categorically
qualifies under the elements clause ,..,or even whether the ... statute under
which that conviction was obtained is divisible, would be impracticable given our
time limitation and lack of merits briefing in the successive § 2255 motion
context." Rogers^ 2016 WL 3362057, at *3; see Jordan v. Sec'y, Dep Y ofCorr.,
485 F.3d 1351, 1357-58(11th Cir. 2007)("When we make that prima facie
decision we do so based only on the petitioner's submission. We do not hear
from the government. We usually do not have access to the whole record. And
we often do not have the time necessary to decide anything beyond the prima facie
question because we must comply with the statutory deadline.").'^ Indeed, in
Jordan we concluded that "the statute does not allow us" to reach the decision on
the merits at the application stage but rather "restricts us to deciding whether the
^ Ifthe question in this case merely was whether Mr. Smith used force when committing
his caijacking offense,I would have no trouble concluding that he did. But this is not the question
at all. The question we must answer is whether the caijacking statute under which Mr. Smith was
convicted categorically qualifies as a crime of violence so that his sentence may be enhanced
under § 924(c). See Rogers^ 2016 WL 3362057, at *2.
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petitioner has made out a prima facie case of compliance with the [28 U.S.C.]
§ 2244(b)requirements." Id.
"Nor would [deciding such a complex issue] be prudential, considering
nothing we pronounce in orders on applications to file successive § 2255 motions
binds the district court." Rogers,2016 WL 3362057, at *3;see In re Moss,703
F.3d 1301, 1302(11th Cir. 2013)(noting that our "limited determination" does not
bind the district court, which is to decide the "issues fresh, or in the legal
vernacular, de novo'''(alteration adopted)).
Unlike the majority, I have serious doubts about whether Mr. Smith's
carjacking conviction can qualify him for a § 924(c)enhanced sentence after
Johnson, We certainly have never held that the statute would qualify
categorically even setting aside the residual clause in § 924(c). It would be
impractical and imprudent to decide this complex question in the first instance
here. For these reasons, I respectfully dissent.
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