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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-16337
Non-Argument Calendar
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D.C. Docket Nos. 1:16-cv-22405-JLK,
1:12-cr-20654-JLK-1
CARLOS MARCANO, JR.,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 8, 2017)
Before ED CARNES, Chief Judge, MARTIN, and ANDERSON, Circuit Judges.
PER CURIAM:
Carlos Marcano, Jr. appeals the district court’s denial of his 28 U.S.C.
§ 2255 motion to vacate his sentence and conviction. In 2012 Marcano was
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convicted of brandishing a firearm during a “crime of violence,” in violation of 18
U.S.C. § 924(c). The crime was premised on Marcano’s display of that weapon
during a carjacking (which he was also convicted of). He contends that in light of
the Supreme Court’s decision in Johnson v. United States, 576 U.S. ___, 135 S. Ct.
2551 (2015), his carjacking conviction under 18 U.S.C. § 2119 no longer qualifies
as a “crime of violence” under § 924(c).
I.
In 2012 Marcano walked into an auto repair shop and requested to test drive
a car. The seller agreed and accompanied him on the drive. After a few minutes
Marcano abruptly stopped the car and told the seller he needed to call his mother.
But instead of calling his mother, Marcano reached into his pocket, pulled out a
gun, pointed it at the seller’s face, and ordered him to get out of the car. The seller
left and immediately called the police. Later that day police caught Marcano
attempting to wipe the “for sale” markings off of the car’s windows. Police found
the gun and keys to the car in Marcano’s pants pockets.
Marcano was indicted on two counts: carjacking, in violation of § 2119, and
brandishing a firearm during a crime of violence, in violation of § 924(c)(1)(A)(ii).
He pleaded guilty to both. The district court imposed a sentence of 1 day for the
carjacking conviction and 84 months for the § 924(c) conviction, to be served
consecutively. Marcano did not seek a direct appeal.
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In June 2016 Marcano filed a 28 U.S.C. § 2255 motion, contending that his
§ 924(c) conviction is no longer valid, because carjacking no longer constitutes a
“crime of violence” in light of the Supreme Court’s decision in Johnson, 135 S. Ct.
2551. The district court denied Marcano’s motion. It determined that carjacking
was still a crime of violence under § 924(c)’s use-of-force clause even if Johnson
applied to § 924(c)’s risk-of-force clause. The district court denied Marcano a
certificate of appealability, but we granted him one on the issue of “[w]hether the
District Court erred in concluding Mr. Marcano’s conviction under 18 U.S.C.
§ 924(c), predicated on carjacking, was unaffected by the Supreme Court’s ruling
in [Johnson].”
II.
In reviewing a district court’s denial of a § 2255 motion, we review de novo
its legal conclusions and its factual findings for clear error. Osley v. United States,
751 F.3d 1214, 1222 (11th Cir. 2014). We may affirm for any reason supported by
the record, even if the district court did not rely on it, United States v. Al-Arian,
513 F.3d 1184, 1189 (11th Cir. 2008), though the scope of our “review is limited to
the issues specified in the COA,” Rhode v. United States, 583 F.3d 1289, 1291
(11th Cir. 2009). Whether a particular offense is a “crime of violence” under
§ 924(c) is a question of law that we review de novo. United States v. McGuire,
706 F.3d 1333, 1336 (11th Cir. 2013).
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Section 924(c) provides for a mandatory consecutive sentence of at least
seven years for any defendant who brandishes a firearm during a crime of violence.
18 U.S.C. § 924(c)(1). Under § 924(c), a “crime of violence” is a felony that:
(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.
Id. § 924(c)(3)(A), (B). We have referred to the first prong of the definition as the
“use-of-force” clause and the second prong as the “risk-of-force” clause. Ovalles
v. United States, 861 F.3d 1257, 1263 (11th Cir. 2017).
Marcano contends that his conviction and sentence under § 924(c) should be
vacated because carjacking no longer qualifies as a “crime of violence.” He argues
that based on the Supreme Court’s decision in Johnson, § 924(c)’s risk-of-force
clause is unconstitutionally vague. He also argues that carjacking is not a “crime
of violence” under the use-of-force clause because it can be committed by
intimidation, which does not require the “use, attempted use, or threatened use of
physical force.” 18 U.S.C. § 924(c)(3)(A).
In Johnson, the Supreme Court held that the “residual clause” in the Armed
Career Criminal Act’s definition of “violent felony,” was unconstitutionally vague.
135 S. Ct. at 2556. That clause defined a “violent felony” as a crime that “involves
conduct that presents a serious potential risk of physical injury to another.”
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18 U.S.C. § 924(e)(2)(B)(ii). The Court stated that the residual clause created
uncertainty about how to evaluate the “potential risk of physical injury” posed by a
prior criminal act and the amount of risk necessary to be “serious.” Johnson, 135
S. Ct. at 2557–58, 2563. That defect rendered the residual clause
unconstitutionally vague. Id. The Supreme Court later held in Welch v. United
States that Johnson announced a new substantive rule that applied retroactively to
cases on collateral review. 578 U.S. ___, 136 S. Ct. 1257, 1268 (2016).
We recently considered whether Johnson invalidates a conviction under
§ 924(c) predicated on carjacking in our Ovalles decision. See 861 F.3d 1257. We
affirmed the denial of the petitioner’s § 2255 motion to vacate her § 924(c)
conviction and sentence for using and carrying a firearm during an attempted
carjacking under § 2119. Id. at 1269. Although we noted that the language in
§ 924(e)’s residual clause and § 924(c)’s risk-of-force clause is similar, we
determined that “Johnson does not apply to, or invalidate, the risk-of-force clause
in § 924(c)(3)(B).” Id. at 1266. We explained that several material differences —
textual and contextual — clarify the application of the risk-of-force clause, unlike
the unpredictable and speculative determination that § 924(e)’s residual clause
required. Id. at 1263–67. The risk-of-force clause in § 924(c) has a distinct
purpose of punishing firearm use in connection with a specific crime rather than
recidivism. Id. at 1264. Moreover, the determination of § 924(c) is much more
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concrete than § 924(e) — § 924(c)’s risk-of-force clause is tailored to the risk
presented by the current offense instead of looking back to an old crime. Id. at
1266. And the determination in § 924(c) is freed from the “confusing list of
exemplar crimes” that plagued § 924(e)’s residual clause. Id.; see also Johnson,
135 S. Ct. at 2561 (noting that the residual clause was interpreted by comparing it
to a “confusing list” of enumerated crimes that appears immediately before it in
§ 924(e)(2)(B)(ii), specifically burglary, arson, or extortion, or any crime involving
the use of explosives). For those reasons, the risk-of-force clause of § 924(c) has
not caused the same interpretive difficulties as the residual clause of § 924(e).
Ovalles, 861 F.3d at 1266.
Based on the material differences between the two statutes, we concluded
the risk-of-force clause of § 924(c) remains valid after Johnson. Id. at 1267. As a
result, we held that attempted carjacking qualifies as a crime of violence under the
risk-of-force clause. Id. We also held that as alternative and independent grounds
for affirmance, attempted carjacking categorically qualifies as a crime of violence
under the use-of-force clause of § 924(c)(3)(A) as well. Id.; see also In re Smith,
829 F.3d 1276, 1280–81 (11th Cir. 2016) (concluding in the successive § 2255
petition context that even if Johnson invalidated the risk-of-force clause, a § 2119
carjacking is still a crime of violence under § 924(c)’s use-of-force clause).
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Although Marcano’s crime involves a completed carjacking as opposed to
an attempted one, his claims are identical to the petitioner’s claims in Ovalles.
Under the prior panel precedent rule, we are bound to follow the holding in Ovalles
“unless and until it is overruled or undermined to the point of abrogation by the
Supreme Court or by this Court sitting en banc.” In re Lambrix, 776 F.3d 789, 794
(11th Cir. 2015). Because that has not happened, we must apply Ovalles. As a
result, Marcano’s claims fail. 1 His § 924(c) conviction is still valid after Johnson,
and the district court did not err by denying his § 2255 motion.
AFFIRMED.
1
Marcano also argues that the Supreme Court’s upcoming decision in Sessions v.
Dimaya, U.S. No. 15-1498, argued Jan. 17, 2017, reargued Oct. 2, 2017, could bear on the
validity of the risk-of-force clause because it concerns the identical language in 18 U.S.C.
§ 16(b). Again, as we explained in Ovalles, “the task in § 16(b) cases is not as precise and
predictable as in § 924(c)(3)(B) cases.” 861 F.3d at 1267. Section 16(b) involves a recidivist
statute, requiring a judgment about a past conviction as opposed to a contemporaneous crime
required by § 924(c). Id. And even if the Supreme Court’s decision in Dimaya throws
§ 924(c)(3)(B) into question, it doesn’t change the fact that Marcano’s carjacking is still a crime
of violence under § 924(c)(3)(A)’s use-of-force clause. Id. Our holding in Ovalles that a § 2119
carjacking is a crime of violence as defined by the use-of-force clause was alternative and
independent of our determination that it was a crime of violence as defined by the risk-of-force
clause. Id. Alternative holdings are just as binding as solitary ones. Kilgore v. Sec’y, Fla. Dept.
of Corr., 805 F.3d 1301, 1315 (11th Cir. 2015). So it is unlikely that the Supreme Court’s
decision in Dimaya will affect this case.
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