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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11201
Non-Argument Calendar
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D.C. Docket Nos. 1:17-cv-21929-MGC; 1:07-cr-20825-MGC-7
ONAY VALDES,
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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(February 13, 2020)
Before WILSON, BRANCH, and HULL, Circuit Judges.
PER CURIAM:
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Onay Valdes appeals the district court’s denial of his 28 U.S.C. § 2255
motion to vacate his sentence related to his convictions for conspiracy to commit
Hobbs Act robbery in violation of 18 U.S.C. § 1951(a) and possession of a firearm
in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A). The
district court granted a certificate of appealability (COA) on one issue: whether
reasonable jurists could debate whether Valdes’s conviction under § 924(c) was
constitutional in light of the Supreme Court’s grant of certiorari in United States v.
Davis, 588 U.S. ___, 139 S. Ct. 2319 (2019).
When reviewing a district court’s denial of a § 2255 motion, we review
questions of law de novo and factual findings for clear error. Lynn v. United
States, 365 F.3d 1225, 1232 (11th Cir. 2004) (per curiam). We may affirm for any
reason supported by the record. Castillo v. United States, 816 F.3d 1300, 1303
(11th Cir. 2016).
Normally, the scope of our review of an unsuccessful § 2255 motion is
limited to the issues enumerated in the COA. McKay v. United States, 657 F.3d
1190, 1195 (11th Cir. 2011). However, “we will construe the issue specification in
light of the pleadings and other parts of the record.” McCoy v. United States,
266 F.3d 1245, 1248 n.2 (11th Cir. 2001) (internal quotation mark omitted). We
have addressed the merits of a defendant’s claim that his § 924(c) conviction was
unconstitutional in light of Davis where the COA stated the issue in terms of
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Johnson. See Steiner v. United States, 940 F.3d 1282, 1288, 1292–93 (11th Cir.
2019) (per curiam). So even though the opinion in Davis issued after Valdes was
granted his COA, we can consider now whether Davis affords Valdes his requested
relief. See id.
Section 924(c) criminalizes the use or carrying of a firearm in furtherance of
a crime of violence or drug-trafficking crime. 18 U.S.C. § 924(c)(1)(A). In
§ 924(c), Congress provided definitions of a “crime of violence.” See
§ 924(c)(3)(A)–(B). However, the Supreme Court recently nullified one of those
definitions in § 924(c)(3)(B)—widely known as the residual clause—because it
was unconstitutionally vague. See Davis, 139 S. Ct. at 2324–25, 2336.
Even so, § 924(c)(3)(A)—the elements clause—still stands. A felony
offense that “has as an element the use, attempted use, or threatened use of
physical force against the person or property of another” still qualifies as a “crime
of violence.” § 924(c)(3)(A); see Steiner, 940 F.3d at 1293 (citing Davis, 139 S.
Ct. at 2336). And “a conviction under § 924(c) does not require that the defendant
be convicted of, or even charged with, the predicate offense.” In re Navarro, 931
F.3d 1298, 1302 (11th Cir. 2019).
We have held that substantive Hobbs Act robbery is a crime of violence
under § 924(c)’s elements clause. In re Fleur, 824 F.3d 1337, 1340–41 (11th Cir.
2016); see 18 U.S.C. § 1951(a). We also held that conspiracy to commit Hobbs
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Act robbery is not a crime of violence. Brown v. United States, 942 F.3d 1069,
1075 (11th Cir. 2019) (per curiam).
Here, Valdes has not made a prima facie showing that he is entitled to relief
under Davis.1 In addition to the crimes to which he pled guilty and for which he
was convicted, Valdes was charged with Hobbs Act robbery. The indictment listed
both counts of conspiracy to commit Hobbs Act robbery and Hobbs Act robbery as
the factual predicates for the § 924 charge. Valdes admitted that he held a gun to
the head of a Brinks truck messenger and stole over $1 million, facts that fall
within the definition of Hobbs Act robbery. See 18 U.S.C. § 1951(a). Because
Valdes admitted facts sufficient to support a conviction for substantive Hobbs Act
robbery, which is a crime of violence, his conviction under § 924(c) was supported
by a predicate offense. See Fleur, 824 F.3d at 1340–41; Navarro, 931 F.3d at
1302. Accordingly, we affirm the district court’s denial of Valdes’s § 2255
motion.
AFFIRMED.
1
The government argues that we should dismiss Valdes’s claims because he did not raise them
on direct appeal. But we see no need to address this procedural-default issue given our decision
on the merits.
4