In Re: Edgar Colon, Jr., No. 16-13021 (11th Cir. 2016)

Petitioner filed two applications 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, citing Johnson v. United States and Welch v. United States. Petitioner argued that his conviction for aiding and abetting a Hobbs Act robbery no longer qualifies as a crime of violence because of Johnson, and thus, his 18 U.S.C. 924(c) sentence cannot stand. The court held that petitioner's companion conviction for aiding and abetting a Hobbs Act robbery, which was charged in the same indictment as, and makes up the basis for, petitioner's section 924(c) count, clearly qualifies as a crime of violence under the use-of-force clause in section 924(c)(3)(A). Therefore, petitioner's section 924(c) sentence would be valid even if Johnson makes the section 924(c)(3)(B) residual clause unconstitutional. Because petitioner has not made a prima facie showing that his proposed Johnson residual-clause claim meets the statutory criteria, the court denied this applications.