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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-13077
Non-Argument Calendar
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D.C. Docket Nos. 0:16-cv-61001-WPD,
0:12-cr-60018-WPD-4
MARCUS MCKNIGHT,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 17, 2019)
Before JORDAN, BRANCH, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Marcus McKnight pled guilty to and was convicted of (1) conspiracy to
commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), and (2) carrying a
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firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). He
was sentenced to 84 months’ imprisonment and five years of supervised release.
On May 9, 2016, Mr. McKnight filed a motion to vacate his convictions and
sentences under 28 U.S.C. § 2255, arguing that he is not guilty of carrying a
firearm in relation to a crime of violence under § 924(c)’s residual clause. See §
924(c)(3)(B). He contends that the Supreme Court’s opinion in Johnson v. United
States, 135 S. Ct. 2551, 2257–58 (2015)—which held that the Armed Career
Criminal Act’s residual clause was void for vagueness—invalidated § 924(c)’s
residual clause.
The district court dismissed Mr. McKnight’s motion after concluding that
Johnson did not extend beyond the ACCA. Because Johnson did not apply to §
924(c), the motion to vacate was also not filed within § 2255(f)(3)’s one-year
statute of limitations, and Mr. McKnight was not excused from failing to directly
appeal his conviction. See Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir.
2004) (allowing a § 2255 motion to proceed without a direct appeal when “a
constitutional violation has probably resulted in the conviction of one who is
actually innocent”) (quotation marks omitted). On appeal, Mr. McKnight argues
that Johnson renders § 924(c)’s residual clause unconstitutionally vague. This
argument is foreclosed by recent binding precedent.
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After the parties briefed this appeal, we decided Ovalles v. United States,
905 F.3d 1231 (11th Cir. 2018) (en banc), holding that the Supreme Court’s
decisions in Johnson and Sessions v. Dimaya, 138 S. Ct. 1204 (2018), did not
invalidate § 924(c)’s residual clause. See Ovalles, 905 F.3d at 1252–53.
Specifically, we determined that the constitutional-doubt canon of statutory
construction required us to apply § 924(c)’s residual clause using a conduct-based
approach, as opposed a categorical approach. See id. at 1240, 1244, 1251. This
conduct-based approach accounts for “actual, real-world facts of the crime’s
commission” in determining whether that crime qualifies under § 924(c)’s residual
clause. Id. at 1253. Since Ovalles, we have held that an attempted Hobbs Act
robbery conviction qualified as “crime of violence” under § 924(c)’s residual
clause based on the facts of the offense stated at the defendant’s plea hearing. See
United States v. St. Hubert, 909 F.3d 335, 346–47 (11th Cir. 2018). See also In re
Garrett, 908 F.3d 686, 689 (2018) (“[Under Ovalles], neither Johnson nor Dimaya
supplies any ‘rule of constitutional law’ . . . that can support a vagueness-based
challenge to the residual clause of section 924(c).”). 1
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Our opinion in St. Hubert, 909 F.3d at 352, also concluded that a conviction for attempt to
commit a Hobbs Act robbery qualifies under § 924(c)’s elements clause, § 924(c)(3)(A). See
also In re Fleur, 824 F.3d 1337, 1341 (11th Cir. 2016) (holding that a Hobbs Act robbery
conviction met § 924(c)’s elements clause); In re Colon, 826 F.3d 1301, 1305 (11th Cir. 2016)
(holding that a conviction for aiding and abetting a Hobbs Act robbery met § 924(c)’s elements
clause). Cf. In re Pinder, 824 F.3d 977, 979 n.1 (11th Cir. 2016) (noting that it is unsettled
whether a conviction for conspiracy to commit a Hobbs Act robbery meets § 924(c)’s elements
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At Mr. McKnight’s plea hearing, the government proffered, without
objection, that it “would have proven beyond a reasonable doubt that [Mr.]
McKnight agreed to steal 15 to 20 kilograms of cocaine from a stash house
[belonging to a Mexican drug cartel] by using force through firearms and
ammunition.” Mr. McKnight’s PSI similarly recounted the facts surrounding his
conviction, which Mr. McKnight did not dispute. Under a conduct-based
approach, Mr. McKnight’s conspiracy to commit a Hobbs Act robbery involved a
substantial risk that physical force may be used against a person or property. See
Ovalles, 905 F.3d at 1252–53. Thus, his conviction constituted a crime of violence
under § 924(c)’s residual clause.
AFFIRMED.
clause). Because Mr. McKnight’s conviction satisfies § 924(c)’s residual clause, we need not
determine whether a conspiracy to commit a Hobbs Act robbery conviction falls under § 924(c)’s
elements clause.
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