Sherond Duron King v. USA, No. 17-11053 (11th Cir. 2018)
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Case: 17-11053 Date Filed: 01/26/2018 Page: 1 of 5 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 17-11053 Non-Argument Calendar ________________________ D.C. Docket Nos. 1:15-cv-23922-FAM; 1:12-cr-20367-FAM-2 SHEROND DURON KING, Petitioner - Appellant, versus UNITED STATES OF AMERICA, Respondent - Appellee. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (January 26, 2018) Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges. PER CURIAM: Case: 17-11053 Date Filed: 01/26/2018 Page: 2 of 5 Sherond Duron King appeals the denial of his 28 U.S.C. § 2255 motion to vacate his 1,062-month sentence imposed after a jury convicted him of conspiracy to commit Hobbs Act robbery, four counts of Hobbs Act robbery, and four counts of possession of a firearm in furtherance of a crime of violence. King previously appealed his convictions and sentence, and we affirmed. United States v. King, 751 F.3d 1268 (11th Cir. 2014). Now, he argues that his Hobbs Act robbery convictions no longer qualify as crimes of violence under 18 U.S.C. § 924(c) following the United States Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015). But we have previously held that Johnson did not invalidate the “risk-of-force” provision in 18 U.S.C. § 924(c)(1)(B) and that Hobbs Act robbery qualifies as a crime of violence under § 924(c)(1)(A). Accordingly, we affirm the decision below. I. In reviewing a § 2255 proceeding, we review legal conclusions de novo and factual findings for clear error. Osley v. United States, 751 F.3d 1214, 1222 (11th Cir. 2014). We may affirm the denial of a § 2255 motion for any reason supported by the record, even if it was not relied upon by the district court. United States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir. 2008). 2 Case: 17-11053 Date Filed: 01/26/2018 Page: 3 of 5 II. At the time King filed his initial brief, this Court had not decided whether Johnson applied to 18 U.S.C. § 924(c). We have since upheld the validity of § 924(c)(1)(B). Ovalles v. United States, 861 F.3d 1257 (11th Cir. 2017). In Johnson, the Supreme Court considered the constitutionality of the “residual clause” of the Armed Career Criminal Act (“ACCA”). The ACCA defined a “violent felony as any crime punishable by a term of imprisonments exceeding one year 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.” 18 U.S.C. 924(e)(1)(B)(ii) (emphasis added); Johnson, 135 S. Ct. at 2556. The clause emphasized above is known as the residual clause, and the Supreme Court determined in Johnson that that clause was unconstitutionally vague. In contrast to § 924(e) of the ACCA, § 924(c) provides for a mandatory consecutive sentence for any defendant who uses a firearm during a crime of violence or a drug-trafficking crime. 18 U.S.C. § 924(c)(1). For the purposes of § 924(c), “crime of violence” in that statute 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. 3 Case: 17-11053 Date Filed: 01/26/2018 Page: 4 of 5 Id. § 924(c)(3)(A), (B). The first prong of the definition is referred to as the “use-of-force” clause, and the second prong is referred to as the “risk-of-force” clause. Ovalles, 861 F.3d at 1263. In Ovalles¸ we held that the Supreme Court’s decision in Johnson did not invalidate the “risk-of-force” clause in § 924(c)(3)(B). Id. at 1265-66. We are bound by this Court’s prior precedent unless and until it is overruled by this Court sitting en banc or by the Supreme Court. United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008); see also In re Lambrix, 776 F.3d 789, 794 (11th Cir. 2015) (holding that the prior-panel-precedent rule applies with equal force to priorpanel decisions published in the context of applications to file second or successive petitions). Accordingly, King’s argument regarding the validity of § 924(c)(3)(B) is foreclosed by our decision in Ovalles, and we affirm the denial of his § 2255 motion for this reason. III. Even if King’s argument concerning the validity of § 924(c)(3)(B) were not foreclosed by our decision in Ovalles, King would not be entitled to relief. Though King argues that his Hobbs Act robbery convictions do not qualify as crimes of violence under § 924(c)(1)(A), the “use-of-force” provision, his argument is foreclosed by our precedent in In re Fleur, 824 F.3d 1337, 1340-41 (11th Cir. 4 Case: 17-11053 Date Filed: 01/26/2018 Page: 5 of 5 2016), in which we held that Hobbs Act robbery “clearly qualifies” as a crime of violence under the use-of-force clause of § 924(c). IV. The district court did not err in denying King’s §2255 motion. Accordingly, we affirm. AFFIRMED. 5
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