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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-16584
Non-Argument Calendar
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D.C. Docket Nos. 0:16-cv-61379-JIC; 0:10-cr-60206-JIC-1
KELVIN GIBSON,
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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(January 9, 2019)
Before WILSON, JILL PRYOR and HULL, Circuit Judges.
PER CURIAM:
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Kelvin Gibson, a federal inmate, appeals the district court’s denial of his
28 U.S.C. § 2255 motion to vacate. Gibson argues that the district court erred in
concluding that he was ineligible for relief from his 18 U.S.C. § 924(c) conviction
and sentence, predicated on bank robbery. After careful review, we affirm.
I.
A grand jury indicted Gibson on one count of bank robbery, in violation of
18 U.S.C. § 2113(a) (Count 1), and one count of using and possessing a firearm
during, or in furtherance of, a crime of violence (the bank robbery), in violation of
18 U.S.C. § 924(c) (Count 2). Under § 924(c), a “crime of violence” is a felony
that “has as an element the use, attempted use, or threatened use of physical force
against the person or property of another” or “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)(A)-(B). The former
definition is called the “elements clause” and the latter is known as the “residual
clause.” See Ovalles v. United States, 905 F.3d 1231, 1234 (11th Cir. 2018) (en
banc).
Gibson pled guilty to Count 2 pursuant to a written plea agreement; in
exchange, the government agreed to dismiss Count 1. In the factual proffer entered
in support of the guilty plea, Gibson admitted that he pointed his gun at bank
tellers and demanded money. The district court sentenced Gibson to 300 months’
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imprisonment, a term that later was reduced to 120 months’ imprisonment based
on his substantial assistance to the government. See Fed. R. Crim. P. 35(b)(1).
Gibson did not file a direct appeal.
Gibson filed the instant § 2255 motion after the Supreme Court struck as
unconstitutionally vague the “residual clause” of the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii). See Johnson v. United States, 135 S. Ct.
2551, 2563 (2015). He argued that § 924(c)’s residual clause, which is similar to
ACCA’s, was unconstitutional under the same logic the Supreme Court articulated
in Johnson. And, he argued, bank robbery did not qualify as a crime of violence
under § 924(c)’s other definition, its elements clause. The district court denied
Gibson’s motion, concluding that bank robbery satisfied § 924(c)’s elements clause
definition notwithstanding any effect Johnson may have had on § 924(c)’s residual
clause.
This Court granted Gibson a certificate of appealability on whether the
district court erred in concluding that Gibson’s § 924(c) conviction and sentence,
predicated on bank robbery under § 2113(a), was unaffected by Johnson.
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II.
On appeal, Gibson argues that § 924(c)’s residual clause is unconstitutional.
He further contends that bank robbery does not satisfy § 924(c)’s elements clause.1
Because binding precedent forecloses both of his arguments, we affirm. 2
In Ovalles, this Court sitting en banc upheld § 924(c)’s residual clause
against a constitutional challenge by concluding that its text permitted courts to
examine a defendant’s conduct rather than the predicate offense statute—the
approach that led to the demise of ACCA’s residual clause. 905 F.3d at 1233-34.
We are bound to follow Ovalles unless or until it is overruled or undermined to the
point of abrogation by this Court sitting en banc or by the Supreme Court. United
States v. Brown, 342 F.3d 1245, 1246 (11th Cir. 2003). Thus, Gibson’s argument
that § 924(c)’s residual clause is unconstitutional must fail.
We also are bound to reject Gibson’s argument that robbery under 18 U.S.C.
§ 2113(a) does not satisfy § 924(c)’s elements clause. In In re Sams, this Court
held that bank robbery under § 2113(a) categorically qualifies as an elements
clause crime of violence. 830 F.3d 1234, 1239 (11th Cir. 2016). Although Gibson
argues that Sams—as a published order on a request for authorization to file a
1
“In a section 2255 proceeding, we review legal issues de novo and factual findings
under a clear error standard.” United States v. Walker, 198 F.3d 811, 813 (11th Cir. 1999).
2
Given that Gibson’s arguments fail on the merits, we need not address the government’s
argument that his claim is barred by the sentence appeal waiver in his plea agreement. See
United States v. St. Hubert, 909 F.3d 335, 346 n.7 (11th Cir. 2018).
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second or successive § 2255 motion, not a merits decision, see id. at 1235—is not
binding outside the second or successive context, that argument also is foreclosed
by circuit precedent. See United States v. St. Hubert, 909 F.3d 335, 345-46 (11th
Cir. 2018). Following the logic of St. Hubert, as we must, Sams binds us unless or
until it is overruled or undermined to the point of abrogation by this Court sitting
en banc or by the Supreme Court. Brown, 342 F.3d at 1246. Thus, we conclude
that Gibson’s § 924(c) conviction is valid because his predicate offense, bank
robbery, satisfies the elements clause. 3
For the foregoing reasons, we affirm Gibson’s § 924(c) conviction and
sentence.
AFFIRMED.
3
Because bank robbery satisfies § 924(c)’s elements clause, we need not decide whether
Gibson’s offense conduct satisfies the residual clause under Ovalles’s conduct-based approach,
although we note that Gibson admitted to pointing a gun at bank tellers.
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Kelvin Gibson v. United States
Combined Opinion