BURKE v. UNITED STATES (2018)

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, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (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, 908 F.3d 686 (11th Cir. 2018), that neither Johnson nor Sessions v. Dimaya, ––– U.S. ––––, 138 S.Ct. 1204, 200 L.Ed.2d 549 (2018), invalidate § 924(c). Garrett thus forecloses Burke’s argument. For this reason, we AFFIRM.

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, 909 F.3d 335, 2018 WL 5993528 (Nov. 15, 2018). Therefore, we are bound by that holding, and Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (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.

PER CURIAM: