In Re: Jeffrey Smith, No. 15-11092 (11th Cir. 2016)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on September 4, 2015.
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Case: 16-13661 Date Filed: 07/18/2016 Page: 1 of 19 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT Nos. 16-13661-J, 16-14000-J IN RE: JEFFREY SMITH, Petitioner. Application for Leave to File a Second or Successive Motion to Vacate, Set Aside, or Correct Sentence, 28 U.S.C. § 2255(h) Before HULL,JULIE CARNES,and JILL PRYOR,Circuit Judges. BY THE PANEL: Jeffrey Smith was convicted by a jury ofcarjacking, in violation of 18 U.S.C. § 2119, and carrying and using a firearm during this crime of violence, in violation of 18 U.S.C. § 924(c). The convictions arose out of a carjacking during which one ofthe victims was shot to death. Smith has filed an application seeking an order authorizing the district court to consider a second or successive motion to vacate, set aside, or correct his federal sentence under 28 U.S.C. § 2255. Such authorization Case: 16-13661 Date Filed: 07/18/2016 Page: 2 of 19 may be granted only ifthis Court certifies that the second or successive motion contains a claim involving: (1)newly discovered evidence that, ifproven and viewed in light ofthe evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty ofthe offense; or (2)a new rule ofconstitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. 28 U.S.C.§ 2255(h). Only the second subsection above—assertion ofa new rule of constitutional law—is at issue here. We may authorize the filing of a second or successive motion only if we first determine that the applicant has made a primafacie showing that satisfies the requirements ofthis subsection. 28 U.S.C. § 2244(b)(3)(C); see also Jordan v. Sec y, Dep Y ofCorr.,485 F.3d 1351,1357-58(11th Cir. 2007)(explaining that this Court's determination that an applicant has made a primafacie showing that the statutory criteria have been met is simply a threshold determination). Smith filed two applications, one pro se, and one counseled. We consolidated those applications, and, because the applications raise substantially the same claim, we consider them together. In his applications. Smith indicates that he wishes to raise one claim in a second or successive § 2255 motion. Smith asserts that his claim relies upon the new rule ofconstitutional law announced in Johnson v. 2 Case: 16-13661 Date Filed: 07/18/2016 Page: 3 of 19 United States, 576 U.S. ,135 S. Ct. 2551 (2015). \n Johnson, the Supreme Court held that because the residual clause ofthe "violent felony" definition in the Armed Career Criminal Act("ACCA")is unconstitutionally vague, imposition of an enhanced sentence under that provision violates the Fifth Amendment's guarantee of due process. The Supreme Court made clear that its ruling on the residual clause did not call into question the validity ofthe elements clause or the enumerated crimes clause ofthe ACCA's definition of a violent felony.^ Id. at , 135 S. Ct. at 2563. Smith's applications also cite Welch v. United States, 578 U.S. ,136 S. Ct. 1257(2016), in which the Supreme Court held that Johnson applies retroactively to cases on collateral review. In short. Smith asserts that his conviction and sentence under § 924(c) are no longer valid in light ofJohnson. In light ofthe Supreme Court's holdings in Johnson and Welch, federal prisoners who make a primafacie showing that they previously were sentenced in reliance on the ACCA's now-void residual clause are entitled to file a second or successive § 2255 motion in the district court. However, merely asserting, in the ^ The ACCA calls for an enhanced sentence for a defendant who has three prior predicate convictions and who has been convicted under 18 U.S.C. § 922(g), which, among other things, prohibits a felon from possessing a firearm. A predicate conviction for a violent felony can qualify either under(1)the elements clause(§ 924(e)(2)(B)(i))(a prior crime having as an element the use, attempted use, or threatened use of physical force against the person ofanother);(2)the enumerated crimes clause(§ 924(e)(2)(B)(ii))(burglary, arson, extortion or use of explosives); or (3)the residual clause(§ 924(e)(2)(B)(ii))(crime that presents a serious potential risk of physical injury to another). 3 Case: 16-13661 Date Filed: 07/18/2016 Page: 4 of 19 abstract, a ground that purportedly meets § 2255(h)'s requirements "represent[s] the minimum showing" necessary to file a successive § 2255 motion. In re Holladay, 331 F.3d 1169, 1173(11th Cir. 2003)(granting a state death-row inmate's successive application because he had proffered detailed evidence, in satisfaction of § 2244(b)(3)(C), that showed "a reasonable likelihood that he is in fact mentally retarded" to support his proposed Atkins claim). Rather, § 2244(b)(3)(C)requires the applicant to make "a primafacie showing that the application satisfies the requirements ofthis subsection." Id. Accordingly, it is not enough for a federal prisoner to merely cite Johnson as the basis for the claim he seeks to raise in a second or successive § 2255 motion. Instead, the prisoner must also make a prima facie showing that he falls within the scope ofthe new substantive rule announced in Johnson. See id; 28 U.S.C. § 2244(b)(3)(C). Potential Applicability of Johnson to a Non-ACCA Statute As noted,Johnson rendered the residual clause ofthe ACCA invalid. It said nothing about the validity ofthe definition ofa crime of violence found in § 924(c)(3), which prohibits using or carrying a firearm during a crime of violence. Section 924(c)creates a separate crime and provides for a mandatory consecutive sentence for a defendant who uses a firearm during a crime of violence or a drug Case: 16-13661 Date Filed: 07/18/2016 Page: 5 of 19 trafficking crime. 18 U.S.C. § 924(c)(1). For purposes of§ 924(c),"crime of violence" means an offense that is a felony and: (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. 18 U.S.C. § 924(c)(3). Subsection(A)is often referred to as the force clause,the use-of-force clause, or the elements clause. Subsection(B)is often referred to as the residual clause or the substantial-risk clause. We will refer to the clauses, respectively, as the force clause and the residual clause. As noted. Smith contends that the rule promulgated in Johnson, which held the residual clause ofthe ACCA to be unconstitutionally vague, means that § 924(c)'s residual clause must likewise suffer the same fate. Further, as this argument goes, because Johnson applies retroactively for purposes of permitting a second or successive § 2255 motion,then a prisoner who was not convicted ofan ACCA violation may also rely on Johnson and Welch to gain permission to file a second or successive motion attacking a conviction under a different statute. This contention, however, is not self-evident and, indeed, there are good reasons to Case: 16-13661 Date Filed: 07/18/2016 Page: 6 of 19 question an argument thdX Johnson mandates the invalidation of§ 924(c)'s particular residual clause, as set out in § 924(c)(3)(B). First, an analysis ofa statute's vagueness is necessarily dependent on the particular words used and, while similar, the language in the two statutes is not the • • same.2 Not only did the Supreme Court in Johnson decline to expressly invalidate § 924(c)'s residual clause, it further refused to broadly condemn other criminal laws that used risk-based terms. Johnson, 135 S. Ct. at 2561 (indicating that, contrary to fears expressed by the Government, its holding did not mean that other criminal statutes that used terms such as "substantial risk" were necessarily in "constitutional doubt"). Second,§ 924(c)'s residual clause has not been subject to the same kind of uncertainty in application that long plagued the residual clause ofthe ACCA and ultimately led the Supreme Court to strike that clause. See id, at 2559-60 (discussing the uncertainty experienced in applying the ACCA's residual clause). In short, there are reasons to question whether the Supreme Court's striking ofthe 2 • • • Section 924(c)(3) defines a crime ofviolence as a felony offense that"(A)has as an element the use, attempted use, or threatened use ofphysical force against the person or property ofanother, or (B)that by its nature, involves a substantial risk that physical force against the person or property ofanother may be used in the course ofcommitting the offense." Section 924(c)(3)(B)is similar, but not identical,to the language ofthe ACCA residual clause invalidated by the Supreme Court in Johnson. Specifically, the residual clause ofthe ACCA counts as qualifying a crime that involves conduct that presents a serious potential risk ofphysical injury to another. See 18 U.S.C. § 924(e)(2)(B)(ii). The residual clause of§ 924(c),on the other hand,requires a crime that, by its nature, involves a substantial risk that physicalforce may be used against people or property. See 18 U.S.C. § 924(c)(3)(B). Case: 16-13661 Date Filed: 07/18/2016 Page: 7 of 19 ACCA's residual clause means that § 924(c)'s clause is also invalid and, if so, whether the Supreme Court has expressed that conclusion clearly enough in Johnson to warrant permitting a prisoner convicted under § 924(c)to file a second or successive petition on such an uncertain basis. Nevertheless, in executing our gatekeeper function as to claims asserting that § 924(c)'s residual clause is now also invalid as a result ofJohnson, we have assumed,as a threshold matter,that it might be. See In re Pinder,No. 16-12084, F.3d ,2016 WL 3081954,at *2(11th Cir. June 1,2016). But where it is clear that a § 924(c) conviction is based on an underlying offense that satisfies the statute's force clause, we have said so and, in those cases, we have denied the application for a second or successive § 2255 motion. For example, we have held that armed bank robbery and Hobbs Act robbery clearly meet the requirements of§ 924(c)(3)(A)'s force clause, and therefore have found no primafacie showing by an applicant who seeks to make a Johnson challenge as to those convictions in a successive motion. See In re Mines, No. 16-12454, _ F.3d _,2016 WL 3189822, at *2-3(11th Cir. June 8,2016)(explaining that armed bank robbery under 18 U.S.C.§ 2113 is a crime ofviolence under § 924(c)(3)(A)'s force clause);In re Saint Fleur,No. 16-12299, F.3d ,2016 WL 3190539, at *3-4, manuscript order at 6-7(11th Cir. June 8, 2016)(concluding that Hobbs Act robbery under 18 U.S.C. § 1951 is a crime of Case: 16-13661 Date Filed: 07/18/2016 Page: 8 of 19 violence under § 924(c)(3)(A)'s force clause). When it is uncertain whether the underlying offense satisfies § 924(c)(3)'s force clause, we have granted the application. See In re Pinder, 2016 WL 3081954 at *2(holding that an applicant made a primafacie case,for purposes ofsecond or successive review, when seeking to challenge a conviction for conspiracy to commit Hobbs Act robbery based on an argument that such a conviction meets only the residual clause of§ 924(c)). In sum,then, for purposes ofthis order, we will assume that we can extrapolate from the Johnson holding that § 924(c)'s residual clause is also unconstitutional. But as explained below, even making that assumption, we conclude that Smith has not made a primafacie case that Johnson renders his § 924(c)conviction invalid. A Carjacking Conviction under 18 U.S.C.$ 2119 Satisfies 8 924(cVs Force Clause As explained above. Smith contends that the rule promulgated in Johnson, which held the residual clause ofthe ACCA to be unconstitutionally vague, means that § 924(c)'s residual clause must likewise suffer the same fate. While skeptical ofthe merits ofthis argument, we will assume for now that Smith is correct. Consistent with that assumption, if § 924(c) now lacks a residual clause, all that remains is the force clause. Smith asserts that a federal conviction for carjacking under § 2119 does not meet the requirements ofthe force clause and, that being so, 8 Case: 16-13661 Date Filed: 07/18/2016 Page: 9 of 19 carjacking can never be deemed a crime of violence. For this reason, Smith argues he should be allowed to pursue a second § 2255 motion to seek to have his § 924(c) conviction overturned. We disagree. Even assuming that Johnson invalidated § 924(c)'s residual clause, that conclusion would not assist Smith because the elements ofthe underlying conviction on which his § 924(c)conviction was based—carjacking,in violation of 18 U.S.C. § 2119—^meet the requirements that the force clause in § 924(c)(3)(A)sets out for a qualifying underlying offense. In fact, our precedent says just that. In United States v. Moore,43 F.3d 568(11th Cir. 1994), we held: The term crime of violence^'' as Congress defined it in 18 U.S.C § 924(c)(3) clearly includes carjacking. "Tak[ing] or attempt[ing] to take by force and violence or by intimidation," 18 U.S.C. § 2119, encompasses "the use, attempted use, or threatened use of physical force ...." 18 U.S.C. § 924(c)(3)(A). Id. at Sll-13(emphasis added). Stated another way,an element requiring that one take or attempt to take by force and violence or by intimidation, which is what the federal carjacking statute does, satisfies the force clause of§ 924(c), which requires the use, attempted use, or threatened use ofphysical force.^ In short, our precedent"* ^ Our dissenting colleague points out that,following its statement that the elements ofa carjacking offense satisfy the force clause(§ 924(c)(3)(A)), the opinion in Moore notes that those elements also satisfy the § 924(c)(3)(B)'s residual clause. From that, the dissent argues that the opinion could be read as relying on the residual clause. We do not read Moore in this way. By setting out each ofthe two clauses of§ 924(c)(3) and concluding that carjacking meets each ofthem, we find Moore's holding to be clear. 9 Case: 16-13661 Date Filed: 07/18/2016 Page: 10 of 19 holds that carjacking in violation of§ 2119 satisfies § 924(c)'s force clause, and that ends the discussion.^ Accordingly, regardless ofthe validity of§ 924(c)'s residual clause. Smith's § 924(c)conviction meets the requirements ofthat statute's force clause. Therefore, Smith has failed to make aprimafacie showing that he has raised a claim that meets the statutory criteria and his application is therefore DENIED. Although we have binding precedent to support our conclusion, we do not concede that such precedent is required. Citing In re Rogers,the dissent asserts that we are required to grant an application unless "it is clear under 'on-point binding precedent [that] a particular crime categorically qualifies' as a crime of violence notwithstanding Johnson.'''' Dissenting Ord. at 3 (quoting In re Rogers, No. 16-12626, ^F.3d ,2016 WL 3362057, at *2(11th Cir. June 17, 2016)). But we have held that this language in In re Rogers addressed only an ACCA challenge, not a challenge ofa § 924(c) conviction. And given the significant difference between those two types of challenges, we held that Rogers^s statement regarding the need for prior precedent does not apply in this context. See In re Gordon, No. 16-13681 & 16-13803, F.3d ,2016 WL 3648472, at *4 n.4(11th Cir. July 8, 2016). ^ We also disagree with the dissent's suggestion that the Supreme Court's decision in Holloway V. United States, 526 U.S. 1,11 (1999)undermines Moore. The dissent reads Holloway as indicating that a defendant could be found guilty ofcarjacking ifa driver surrenders his car, even if the defendant never used, attempted to use, or threatened to use physical force, so long as the defendant had the intent to inflict death or serious bodily harm. Respectfully, we do not read Holloway as making such a pronouncement. Ifone reads the sentences that precede the language quoted by the dissent, it appears that the Supreme Court is saying nothing more than not every threat, accompanied by the taking ofa vehicle, renders one guilty ofcarjacking. Instead, a taking preceded by a threat will be insufficient unless there is also at least a conditional intent to inflict bodily harm. Hence,that the driver-victim may have surrendered his car based on an "empty threat" or "intimidating bluff," id, by the defendant does not mean that the latter is guilty of caijacking unless he also intended to inflict physical harm on the victim. See id. 10 Case: 16-13661 Date Filed: 07/18/2016 Page: 11 of 19 JILL PRYOR,Circuit Judge, dissenting: I respectfully dissent from the decision to deny Jeffrey Smith's application to file a second or successive 28 U.S.C. § 2255 motion. Mr. Smith argues ihdX Johnson v. United States, 135 S. Ct. 2551 (2015), makes his 18 U.S.C. § 924(c)sentence unlawful. In Johnson,the Supreme Court struck a portion ofthe Armed Career Criminal Act("ACCA")as unconstitutionally vague. Generally speaking, the ACCA imposes an enhanced mandatory minimum term ofimprisonment for individuals convicted of being a felon in possession ofa firearm who had at least three prior violent felonies or serious drug offenses. 18 U.S.C. § 924(e)(1). The ACCA provides three definitions of "violent felony." Section 924(e)(2)(B)(i), the "elements clause," covers any offense that"has as an element the use, attempted use, or threatened use of physical force against the person of another." Section 924(e)(2)(B)(ii) covers any offense that "is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." The first 9 words ofthat subsection make up the "enumerated crimes clause," and the last 13 make up the "residual clause." Johnson struck the residual clause from the ACCA. 11 Case: 16-13661 Date Filed: 07/18/2016 Page: 12 of 19 Mr. Smith was sentenced under 18 U.S.C. § 924(c), which requires a higher prison sentence whenever an individual uses a firearm during and in relation to a "crime of violence." 18 U.S.C. § 924(c)(1)(A). The definition of"crime of violence" under § 924(c)is "very similar" to that in the ACCA. In re Pinder, No. 16-12084, F.3d ,2016 WL 3081954,*1 (11th Cir. June 1, 2016)(authorizing a second or successive § 2255 motion in a § 924(c)case based on Johnson), A "crime of violence" under § 924(c)is a felony offense 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. 18 U.S.C. § 924(c)(3)(B). The statute, then, contains an elements clause (subsection A)and a residual clause (subsection B). Mr. Smith received a § 924(c)sentence enhancement based on a companion conviction for carjacking, in violation of 18 U.S.C. § 2119. A person commits the federal offense ofcarjacking when he,"with the intent to cause death or serious bodily harm takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation," or if he attempts to do so. Id, In challenging his § 924(c)sentence based on Johnson, Mr. Smith's application asserts that the 12 Case: 16-13661 Date Filed: 07/18/2016 Page: 13 of 19 statute qualifies as a crime of violence in whole or part under the residual clause. Put differently, he is arguing that, in light ofJohnson, his carjacking offense no longer categorically qualifies as a crime of violence. We may only deny Mr. Smith's application if, as relevant here, it is clear under "on-point binding precedent [that] a particular crime categorically qualifies" as a crime of violence notwithstanding Johnson, In re Rogers, No. 16-12626, F.3d 2016 WL 3362057,*2(11th Cir. June 17,2016).' The majority, without citation to case law, concludes that carjacking "clearly meets the requirements for an underlying felony offense, as set out in § 924(c)(3)(A)'s use-of-force [elements] clause." Maj. Ord. at 5. I disagree. Although the carjacking statute may categorically have "as an element the use, attempted use, or threatened use of physical force" such that it necessarily qualifies as a crime of violence even after Johnson, we have not so held. 18 U.S.C. § 924(c)(3)(A). In fact, it appears that we previously have relied at least in part on the residual clause in concluding that carjacking qualifies as a crime of violence. In United-States v. Moore,a panel ofthis Court explained: 'The majority, citing In re Gordon, No. 16-13681 & 16-13803, ^F.3d , 2016 WL 3648472(11th Cir. July 8,2016), states that we have "held" that Rogers is inapposite in § 924(c) cases. Maj. Ord. at 10 n.4. But our suggestion in Gordon that Rogers^s applicability may be limited outside the ACCA framework was not in any way essential to our holding in that case and, therefore, merely is dicta. See United States v. Valencia-Trujillo, 573 F.3d 1171,1180 n.6(11th Cir. 2009). 13 Case: 16-13661 Date Filed: 07/18/2016 Page: 14 of 19 The term "crime of violence" as Congress defined it in 18 U.S.C. § 924(c)(3) clearly includes carjacking. "Tak[ing] or attempt[ing] to take by force and violence or by intimidation," 18 U.S.C. § 2119, encompasses "the use, attempted use, or threatened use of physical force " 18 U.S.C. § 924(c)(3)(A). Moreover,the defendant need not have engaged in actual violence in order for the predicate offense to be a crime of violence under section 924(c)(1). The offense is a crime of violence if it "by its nature, involves a substantial risk that physical force ... may be used in the course of committing the offense." 18 U.S.C. § 924(c)(3)(B); see also [United States v.] Singleton, 16 F.3d [1419,] 1423 [(5th Cir. 1994)](noting that carjacking is always and without exception a crime of violence as that term is defined in 18 U.S.C. § 924(c)(3)). 43 F.3d 568, 572-73(11th Cir. 1994). I think it is telling that the panel in Moore relied on the residual clause. Had the panel agreed with the majority's assertion here that carjacking "clearly meets" the requirements ofthe elements clause, I see no reason why it would have felt it necessary to discuss the residual clause at all. I acknowledge that it is perhaps possible to read Moore as holding that carjacking qualifies as a crime of violence solely under the elements clause. But I also think it fair to intuit that both the elements clause and the residual clause were necessary to the panel's conclusion that carjacking categorically qualified as a crime of violence. The panel in Moore stated, for example,that the carjacking statute "encompasses" the elements clause. In doing so, it intimated that a part of the carjacking statute was broader than the elements clause. See Encompass, Merriam-Webster Dictionary, http://www.merriam-webster.com/dictionary/ 14 Case: 16-13661 Date Filed: 07/18/2016 Page: 15 of 19 encompass(defining "encompass" as "to include (something) as a part"). We can therefore infer that the panel referenced the residual clause because it was necessary to make up for what the elements clause did not cover.^ Even putting aside the express reasoning in Moore,I think that Mr. Smith has a colorable argument that the offense of carjacking covers more conduct than the elements clause and that in the absence ofthe residual clause carjacking may not qualify as a crime of violence under § 924(c). Notably, the carjacking statute under which Mr. Tucker was convicted can be violated "by force and violence or by intimidation''' 18 U.S.C. § 2119 (emphasis added). Although on its face, the term "intimidation" seems coterminous with "threatened use of physical force" as it appears in the elements clause, our precedent indicates that may not necessarily be the case. This Court previously has held that whether a defendant engaged in "intimidation" is analyzed from the perspective ofa reasonable observer rather than the actions or threatened actions ofthe defendant. See United States v. Kelley, 412 F.3d 1240, 1244-45 (11th Cir. 2005). It is thus possible for a defendant to engage in intimidation without ever issuing a verbal threat by, for example, slamming a hand on a counter, as occurred in Kelley. Id. at 1245. This, to me, raises a question regarding ^ Moore also construed an earlier version ofthe federal carjacking statute, but the amendment did not affect the "by force and violence or by intimidation'' portion ofthe statute. 15 Case: 16-13661 Date Filed: 07/18/2016 Page: 16 of 19 whether it is possible to commit the offense ofcarjacking without ever using, attempting to use, or threatening to use physical force as described in the elements clause. I note that in addition to covering acts of intimidation, the federal carjacking statute also contains an intent element. A person commits the federal offense of carjacking only if he acts "with the intent to cause death or serious bodily harm." 18 U.S.C. § 2119. But even if this intent requirement somewhat limits the broad scope of conduct that otherwise qualifies as "intimidation," it does not entirely eliminate my concern that the federal offense of carjacking covers more conduct than does the elements clause of§ 924(c). The intent element and the "by force and violence or by intimidation" element concern separate inquiries; if not, the latter would be "render[ed] superfluous" by the former. Holloway v. United States, 526 U.S. 1,11 (1999). Thus, it is possible to prove that a defendant had the intent to commit death or serious bodily harm without proving that he used, attempted to use, or threatened to use physical force against the victim. As the Supreme Court explained in Holloway, a defendant could still be found guilty of carjacking in a "case in which the driver surrendered or otherwise lost control over his car" without the defendant ever using, attempting to use, or threatening to use physical force so long as the government could separately satisfy the intent 16 Case: 16-13661 Date Filed: 07/18/2016 Page: 17 of 19 element. Id/ The government could do so by, for example, looking outside the defendant's charged conduct and at his prior bad acts. United States v. Perez,443 F.3d 111, 779(11th Cir. 2006)(noting that it is permissible to admit "prior-bad-acts evidence to show motive, preparation, knowledge, and intent, as well as an ongoing scheme or plan"); Fed. R. Evid. 404(b). Given this possibility, I think it far from a foregone conclusion that the scope ofthe federal offense of carjacking is coextensive with that ofthe elements clause. And if it isn't, we would have to rely on the residual clause to conclude that carjacking categorically qualifies as a crime of violence. Moreover,ifthe rule announced in Johnson applies to § 924(c)'s residual clause—and it may—^then we cannot rely in part on the residual clause as we did in Moore to hold that carjacking categorically qualifies as a crime of violence. Therefore, because Moore may not now apply and for the reasons I have discussed, it is not clear from our binding precedent that Mr. Tucker's § 924(c)sentence is unaffected by Johnson's rule. ^ To be clear, I do not read Holloway as taking a stance on whether an act ofintimidation is equivalent to a threat of violence. Rather, I cite it for what I consider to be the relatively unremarkable conclusion that a defendant can only be convicted of carjacking if his conduct separately satisfies both the intent element and the physical force / intimidation element. Thus, we cannot automatically infer that a defendant threatened violence merely from the fact that he possessed an intent to injure. Those are different inquiries and a defendant can satisfy one element without satisfying the other. 17 Case: 16-13661 Date Filed: 07/18/2016 Page: 18 of 19 Nor should we decide here, in the first instance, whether carjacking categorically qualifies as a crime of violence under the elements clause notwithstanding the fact that it can be committed "by force and violence or by intimidation" 18 U.S.C. § 2119(emphasis added). "To decide complex issues offirst impression, such as whether a particular ... conviction ... categorically qualifies under the elements clause ,..,or even whether the ... statute under which that conviction was obtained is divisible, would be impracticable given our time limitation and lack of merits briefing in the successive § 2255 motion context." Rogers^ 2016 WL 3362057, at *3; see Jordan v. Sec'y, Dep Y ofCorr., 485 F.3d 1351, 1357-58(11th Cir. 2007) ("When we make that prima facie decision we do so based only on the petitioner's submission. We do not hear from the government. We usually do not have access to the whole record. And we often do not have the time necessary to decide anything beyond the prima facie question because we must comply with the statutory deadline.").'^ Indeed, in Jordan we concluded that "the statute does not allow us" to reach the decision on the merits at the application stage but rather "restricts us to deciding whether the ^ Ifthe question in this case merely was whether Mr. Smith used force when committing his caijacking offense,I would have no trouble concluding that he did. But this is not the question at all. The question we must answer is whether the caijacking statute under which Mr. Smith was convicted categorically qualifies as a crime of violence so that his sentence may be enhanced under § 924(c). See Rogers^ 2016 WL 3362057, at *2. 18 Case: 16-13661 Date Filed: 07/18/2016 Page: 19 of 19 petitioner has made out a prima facie case of compliance with the [28 U.S.C.] § 2244(b)requirements." Id. "Nor would [deciding such a complex issue] be prudential, considering nothing we pronounce in orders on applications to file successive § 2255 motions binds the district court." Rogers,2016 WL 3362057, at *3;see In re Moss,703 F.3d 1301, 1302(11th Cir. 2013)(noting that our "limited determination" does not bind the district court, which is to decide the "issues fresh, or in the legal vernacular, de novo'''(alteration adopted)). Unlike the majority, I have serious doubts about whether Mr. Smith's carjacking conviction can qualify him for a § 924(c)enhanced sentence after Johnson, We certainly have never held that the statute would qualify categorically even setting aside the residual clause in § 924(c). It would be impractical and imprudent to decide this complex question in the first instance here. For these reasons, I respectfully dissent. 19
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