Case: 16-16198 Date Filed: 11/27/2018 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-16198
Non-Argument Calendar
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D.C. Docket Nos. 8:16-cv-01641-EAK-MAP,
8:11-cr-00181-EAK-MAP-1
KENNETH H. BURKE, JR.,
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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(November 27, 2018)
Before MARTIN, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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We sua sponte vacate our earlier opinion in this case and affirm the district
court’s judgment denying Kenneth Burke’s motion to vacate his conviction and
sentence under 28 U.S.C. § 2255.
Burke says the Supreme Court’s decision in Johnson v. United States, 135 S.
Ct. 2551 (2015), invalidated his conviction for carrying a firearm during and in
relation to a crime of violence in violation of 18 U.S.C. § 924(c). Section 924(c)
defines a crime of violence in part as any felony “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)(B). Johnson held
similar language in 18 U.S.C § 924(e)(2)(B)(ii) unconstitutionally vague. 135 S.
Ct. at 2557. This Court recently ruled in In re Garrett, No. 18-13680 (11th Cir.
Nov. 2, 2018), that neither Johnson nor Sessions v. Dimaya, 138 S. Ct. 1204
(2018), invalidate § 924(c). Garrett thus forecloses Burke’s argument. For this
reason, we AFFIRM.
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ROSENBAUM, Circuit Judge, concurring:
I concur in the panel’s order affirming the district court’s denial of Kenneth
Burke’s 28 U.S.C. § 2255 petition. One of Burke’s companion offenses for his
conviction under 18 U.S.C. § 924(c) was attempted Hobbs Act robbery. We have
held that attempted Hobbs Act robbery qualifies as a “crime of violence” under §
924(c)(3)(A)’s elements clause, without consideration of § 924(c)(3)(B)’s risk-of-
force clause. United States v. St. Hubert, No. 16-10874, 2018 WL 5993528 (Nov.
15, 2018). Therefore, we are bound by that holding, and Johnson v. United States,
135 S. Ct. 2551 (2015), cannot affect Burke’s conviction. As a result, the district
court did not err in denying Burke’s § 2255 petition. I would not opine further on
Burke’s Johnson claim, as it is unnecessary to resolve this appeal.
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