Quandre Council v. United States

Case: 17-12146 Date Filed: 12/04/2017 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 17-12146
Non-Argument Calendar
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D.C. Docket Nos. 1:16-cv-22409-UU,
1:12-cr-20937-UU-1

QUANDRE COUNCIL,
Individually,

Petitioner - Appellant,

versus

UNITED STATES OF AMERICA,

Respondent - Appellee.

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Appeal from the United States District Court
for the Southern District of Florida
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(December 4, 2017)

Before TJOFLAT, JORDAN and NEWSOM, Circuit Judges.

PER CURIAM:
 Case: 17-12146 Date Filed: 12/04/2017 Page: 2 of 4

Quandre Council, a federal prisoner serving a 96-month sentence for Hobbs

Act robbery and possession of a firearm in furtherance of a crime of violence,

appeals the district court’s denial of his motion to vacate, set aside, or correct his

sentence under 28 U.S.C. § 2255. In his initial motion and on appeal, Mr. Council

argues that his conviction for Hobbs Act robbery does not constitute a crime of

violence for purposes of 18 U.S.C. § 924(c) after Johnson v. United States, 135 S.

Ct. 2551 (2015), and because it does not categorically qualify as a crime of

violence under the “use of force” clause.

I

In denying Mr. Council’s § 2255 motion, the district court held that Hobbs

Act robbery qualifies as a crime of violence under § 924(c)’s “use-of-force” clause,

but found that the (residual) “risk-of-force” clause of § 924(c) was

unconstitutionally vague in light of Johnson. Thereafter, Mr. Council requested

and was granted a certificate of appealability on “whether a conviction for Hobbs

Act robbery categorically qualifies as a ‘crime of violence’ under § 924(c)’s ‘use-

of-force’ clause in light of Johnson.”

II

When reviewing a district court’s denial of a § 2255 motion, we review

questions of law de novo and factual findings for clear error. See Lynn v. United

States, 365 F.3d 1225, 1232 (11th Cir. 2004). We can affirm for any reason

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supported by the record, even if not relied upon by the district court. See United

States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir. 2008).

III

The Supreme Court invalidated the “residual clause” of the Armed Career

Criminal Act, 28 U.S.C. § 924(e), in Johnson, but made clear that its decision did

“not call into question application of the Act to the four enumerated offenses, or

the remainder of the Act’s definition of a violent felony.” 135 S. Ct. at 2563.

A separate provision requires additional penalties for a defendant who uses a

firearm during a violent felony or a drug trafficking crime. See § 924(c). This

provision defines a “crime of violence” as 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.

§ 924(c)(3). The “risk-of-force clause,” Section 924(c)(3)(B), uses language

similar to that found in § 924(e)’s now-unconstitutional residual clause, and that

forms the basis for Mr. Council’s argument. Unfortunately for Mr. Council, we

recently held in Ovalles v. United States, 861 F.3d 1257, 1267 (11th Cir. 2017),

that § 924(c)’s “risk-of-force” (i.e., residual) clause is not unconstitutionally vague.

In making our assessment, we noted “material textual differences” between the

clauses. See id. at 1263. We also explained that § 924(c) “is not concerned with
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recidivism, but rather with whether the instant firearm was used during and in

relation to the predicate crime of violence.” Id. at 1265. Because of the close

nexus needed between a firearm offense and a predicate crime, a § 924(c) residual

clause “crime of violence determination [is] more precise and more predictable”

than a residual clause determination under § 924(e). We thus held that textual and

application differences between § 924(c) and § 924(e) allow § 924(c)’s “risk-of-

force” clause to withstand attack under Johnson. Id. at 1266.

IV

Given our decision in Ovalles, Mr. Council’s sentence is affirmed.

AFFIRMED.

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