Carlos Marcano, Jr. v. United States

714 F. App'x 955
CourtCourt of Appeals for the Eleventh Circuit
DecidedNovember 8, 2017
Docket16-16337 Non-Argument Calendar
StatusUnpublished

This text of 714 F. App'x 955 (Carlos Marcano, Jr. v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carlos Marcano, Jr. v. United States, 714 F. App'x 955 (11th Cir. 2017).

Opinion

PER CURIAM:

Carlos Marcano, Jr. appeals the district court’s denial of his 28 U.S.C, § 2255 motion to vacate his sentence and conviction. In 2012 Marcano was convicted of brandishing a firearm during a “crime of violence,” in violation of 18 U.S.C. § 924(c). The crime was premised on Marcano’s display of that weapon during a carjacking (which he was also convicted of). He contends that in.light of the Supreme Court’s decision in Johnson v. United States, 576 U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), his carjacking conviction under 18 U.S.C. § 2119 no longer qualifies as a “crime of violence” under § 924(c).

I.

In 2012 Marcano walked into an auto repair shop and requested to test drive a car. The seller agreed and accompanied him on the drive. After a few minutes Marcano abruptly stopped the car and told the seller he needed to call his mother. But instead of calling his mother, Marcano reached into his pocket, pulled out a gun, pointed it at the seller’s face, and ordered him to get out of the car. The seller left and immediately called the police. Later that day police caught Marcano attempting to wipe the “for sale” markings off of the car’s windows. Police found the gun and keys to the car in Marcano’s pants pockets.

Marcano was indicted on two counts: carjacking, in violation of § 2119, and brandishing a firearm during a crime of violence, in violation of § 924(c) (1) (A) (ii). He pleaded guilty to both. The district court imposed a sentence of 1 day for the carjacking conviction and 84 months for the § 924(c) conviction, to be served consecutively. Marcano did not seek a direct appeal.

In June 2016 Marcano filed a 28 U.S.C. § 2255 motion, contending that his § 924(c) conviction is no longer valid, because carjacking no longer constitutes a “crime of violence” in light of the Supreme Court’s decision in Johnson, — U.S. —, 135 S.Ct. 2551. The district court denied Marcano’s motion. It determined that carjacking was still a crime of violence under § 924(c)’s use-of-force clause even if Johnson applied to § 924(c)’s risk-of-force clause. The district court denied Marcano a certificate of appealability, but we granted him one on the issue of “[wjhether the District Court erred in concluding Mr. Mareano’s conviction under 18 U.S.C. § 924(c), predicated on carjacking, was unaffected by the Supreme Court’s ruling in [Johnson],”

II.

In reviewing a district court’s denial of a § 2255 motion, we review de novo its legal conclusions and its factual findings for clear error. Osley v. United States, 751 F.3d 1214, 1222 (11th Cir. 2014). We may affirm for any reason supported by the record, even if the district court did not rely on it, United States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir. 2008), though the scope of our “review is limited to the issues specified in the COA,” Rhode v. United States, 583 F.3d 1289, 1291 (11th Cir. 2009). Whether a particular offense is a “crime of violence” under § 924(c) is a question of law that we review de novo. United States v. McGuire, 706 F.3d 1333, 1336 (11th Cir. 2013).

Section 924(c) provides for a mandatory consecutive sentence of at least seven years for any defendant who brandishes a firearm during a crime of violence. 18 U.S.C. § 924(c)(1). Under § 924(c), a “crime of violence” is a felony 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.

Id. § 924(c)(3)(A), (B). We have referred to the first prong of the definition as the “use-of-force” clause and the second prong as the “risk-of-force” clause. Ovalles v. United States, 861 F.3d 1257, 1263 (11th Cir. 2017).

Marcano contends that his conviction and sentence under § 924(c) should be vacated because carjacking no longer qualifies as a “crime of violence.” He argues that based on the Supreme Court’s decision in Johnson, § 924(c)’s risk-of-force clause is unconstitutionally vague. He also argues that carjacking is not a “crime of violence” under the use-of-force clause because it can be committed by intimidation, which does not require the “use, attempted use, or threatened use of physical force.” 18 U.S.C. § 924(c)(3)(A).

In Johnson, the Supreme Court held that the “residual clause” in the Armed Career Criminal Act’s definition of “violent felony,” was unconstitutionally vague. 135 S.Ct. at 2556. That clause defined a “violent felony” as a crime that “involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). The Court stated that the residual clause created uncertainty about how to evaluate the “potential risk of physical injury” posed by a prior criminal act and the amount of risk necessary to be “serious.” Johnson, 135 S.Ct. at 2557-58, 2563. That defect rendered the residual clause unconstitutionally vague. Id. The Supreme Court later held in Welch v. United States that Johnson announced a new substantive rule that applied retroactively to cases on collateral review. 578 U.S. -, 136 S.Ct. 1257, 1268, 194 L.Ed.2d 387 (2016).

We recently considered whether Johnson invalidates a conviction under § 924(c) predicated on carjacking in our Ovalles decision. See 861 F.3d 1257. We affirmed the denial of the petitioner’s § 2255 motion to vacate her § 924(c) conviction and sentence for using and carrying a firearm during an attempted carjacking under § 2119. Id at 1269. Although we noted that the language in § 924(e)’s residual clause and § 924(c)’s risk-of-force clause is similar, we determined that “Johnson does not apply to, or invalidate, the risk-of-force clause in § 924(c)(3)(B).” Id. at 1266. We explained that several material differences—textual and contextual—clarify the application of the risk-of-force clause, unlike the unpredictable and speculative determination that § 924(e)’s residual clause required. Id. at 1263-67.

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Related

United States v. Al-Arian
514 F.3d 1184 (Eleventh Circuit, 2008)
Rhode v. United States
583 F.3d 1289 (Eleventh Circuit, 2009)
United States v. Jason Dennis McGuire
706 F.3d 1333 (Eleventh Circuit, 2013)
Demond L. Osley v. United States
751 F.3d 1214 (Eleventh Circuit, 2014)
In re: Cary Michael Lambrix
776 F.3d 789 (Eleventh Circuit, 2015)
Johnson v. United States
576 U.S. 591 (Supreme Court, 2015)
Kilgore v. Secretary, Florida Department of Corrections
805 F.3d 1301 (Eleventh Circuit, 2015)
Welch v. United States
578 U.S. 120 (Supreme Court, 2016)
In Re: Jeffrey Smith
829 F.3d 1276 (Eleventh Circuit, 2016)
Irma Ovalles v. United States
861 F.3d 1257 (Eleventh Circuit, 2017)

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Bluebook (online)
714 F. App'x 955, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carlos-marcano-jr-v-united-states-ca11-2017.