Kenneth H. Burke, Jr. v. USA, No. 16-16198 (11th Cir. 2018)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on November 19, 2018.
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Case: 16-16198 Date Filed: 11/27/2018 Page: 1 of 3 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 16-16198 Non-Argument Calendar ________________________ D.C. Docket Nos. 8:16-cv-01641-EAK-MAP, 8:11-cr-00181-EAK-MAP-1 KENNETH H. BURKE, JR., Petitioner - Appellant, versus UNITED STATES OF AMERICA, Respondent - Appellee. ________________________ Appeal from the United States District Court for the Middle District of Florida ________________________ (November 27, 2018) Before MARTIN, JORDAN, and ROSENBAUM, Circuit Judges. PER CURIAM: Case: 16-16198 Date Filed: 11/27/2018 Page: 2 of 3 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, 135 S. Ct. 2551 (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, No. 18-13680 (11th Cir. Nov. 2, 2018), that neither Johnson nor Sessions v. Dimaya, 138 S. Ct. 1204 (2018), invalidate § 924(c). Garrett thus forecloses Burke’s argument. For this reason, we AFFIRM. 2 Case: 16-16198 Date Filed: 11/27/2018 Page: 3 of 3 ROSENBAUM, Circuit Judge, concurring: 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-offorce clause. United States v. St. Hubert, No. 16-10874, 2018 WL 5993528 (Nov. 15, 2018). Therefore, we are bound by that holding, and Johnson v. United States, 135 S. Ct. 2551 (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. 3
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