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United States Court of Appeals, Eleventh Circuit.

Marcus MCKNIGHT, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 16-13077

Decided: January 17, 2019

Before JORDAN, BRANCH, and JULIE CARNES, Circuit Judges. Curt Obront, Obront Corey, PLLC, Miami, FL, for Petitioner-Appellant Aileen Cannon, Emily M. Smachetti, U.S. Attorney Service - Southern District of Florida, U.S. Attorney Service - SFL, Miami, FL, Jennifer A. Keene, Sivashree Sundaram, U.S. Attorney's Office, Fort Lauderdale, FL, for Respondent-Appellee

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 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, ––– U.S. ––––, 135 S.Ct. 2551, 2557–58, 192 L.Ed.2d 569 (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.

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, ––– U.S. ––––, 138 S.Ct. 1204, 200 L.Ed.2d 549 (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

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.



1.   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 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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