Case: 17-15192 Date Filed: 04/26/2019 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-15192 Non-Argument Calendar ________________________
D.C. Docket Nos. 0:16-cv-61354-DMM; 0:08-cr-60090-DMM-2
DEVON CHANCE,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(April 26, 2019)
Before WILLIAM PRYOR, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 17-15192 Date Filed: 04/26/2019 Page: 2 of 6
Devon Chance appeals from the district court’s denial of his authorized
successive 28 U.S.C. § 2255 motion to vacate his sentence. The district court
granted a certificate of appealability (“COA”) on one issue: whether 18 U.S.C.
§ 924(c)(3)(B) is unconstitutional in light of the Supreme Court’s decision in
Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015). Because this
question has been answered in the negative by this Court’s recent precedents, we
affirm.
A federal jury found Chance guilty of six counts of Hobbs Act robbery, 18
U.S.C. § 1951(a); six counts of possession of a firearm during and in relation to a
crime of violence (predicated on the Hobbs Act robbery offenses), 18 U.S.C.
§ 924(c)(1); one count of conspiracy to commit Hobbs Act robbery, 18 U.S.C.
§ 1951(a); and one count of conspiracy to possess a firearm during and in relation
to a crime of violence (predicated on the conspiracy to commit Hobbs Act robbery
offense), 18 U.S.C. § 924(o). The district court sentenced Chance to a total of
1,794 months’ imprisonment, 60 months’ supervised release, and fines totaling
$1400. Chance’s convictions and sentence were affirmed on direct appeal, United
States v. Lewis, 433 F. App’x 844 (11th Cir. 2011) (unpublished), and the district
court subsequently denied his first § 2255 motion.
In Johnson, the Supreme Court held that the definition of “violent felony” in
§ 924(e)(2)(B)(ii) of the Armed Career Criminal Act—commonly called the
2 Case: 17-15192 Date Filed: 04/26/2019 Page: 3 of 6
“residual clause”—was unconstitutionally vague. 135 S. Ct. at 2557. The
Supreme Court later held that Johnson announced a new substantive rule that
applies retroactively to cases on collateral review. Welch v. United States, 136 S.
Ct. 1257, 1264-65, 1268 (2016). More recently, in Sessions v. Dimaya, 584 U.S.
___, 138 S. Ct. 1204 (2018), the Court extended Johnson to invalidate the residual-
clause definition of “crime of violence” in 18 U.S.C. § 16(b), as incorporated into
the Immigration and Nationality Act.
Relying on Johnson and Welch, Chance filed an application for leave to file
a second or successive § 2255 motion on the ground that the definition of “crime of
violence” in § 924(c)(3)’s residual clause1 had the same constitutional failings as
the ACCA’s residual clause, and that all seven of his convictions under
§§ 924(c)(1) and 924(o) were therefore invalid. We granted Chance leave to file a
second § 2255 motion on the limited issue of whether his conviction for conspiracy
to possess a firearm during and in relation to a crime of violence, predicated on
conspiracy to commit Hobbs Act robbery, was affected by Johnson.
Once given leave to do so, Chance filed a second § 2255 motion in the district
court, arguing (as relevant here) that conspiracy to commit Hobbs Act robbery could
1 Section 924(c)(3) defines a “crime of violence” as a felony offense that either “(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another” (the “elements clause”), 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” (the “residual clause”). 18 U.S.C. § 924(c)(3)(A)–(B); see Ovalles v. United States, 905 F.3d 1231, 1234 (11th Cir. 2018) (en banc). 3 Case: 17-15192 Date Filed: 04/26/2019 Page: 4 of 6
no longer serve as a predicate crime of violence for his § 924(o) conviction because
Johnson had rendered § 924(c)’s residual-clause definition of that term invalid, and
the offense did not otherwise meet the statutory definition of “crime of violence.”
Notably, Chance did not dispute that his conspiracy offense met the definition in the
residual clause; he argued only that the residual clause was constitutionally invalid.
The district court, adopting in part the magistrate judge’s report and
recommendation, found that Johnson did not affect § 924(c)(3)’s residual clause,
based on our decision in Ovalles v. United States (“Ovalles I”), 861 F.3d 1257 (11th
Cir. 2017), vacated on reh’g en banc, 889 F.3d 1259 (11th Cir. 2018). The court
denied Chance’s § 2255 motion but granted him a COA, and Chance appealed.
In reviewing the district court’s denial of a § 2255 motion to vacate, we
review the court’s legal conclusions de novo and its findings of fact for clear error.
Stoufflet v. United States, 757 F.3d 1236, 1239 (11th Cir. 2014). Although the
decisions on which we now rely were issued after the district court denied
Chance’s § 2255 motion, they support the court’s analysis and decision.
While Chance’s appeal was pending, we held en banc in Ovalles v. United
States, 905 F.3d 1231 (11th Cir. 2018) (“Ovalles II”) that § 924(c)(3)’s residual
clause is not unconstitutionally vague under Johnson and Dimaya because, unlike
the similarly-worded residual clauses in the ACCA and § 16(b), § 924(c)(3)(B)
could be plausibly interpreted to incorporate an approach that “focuses . . . on the
4 Case: 17-15192 Date Filed: 04/26/2019 Page: 5 of 6
real-world facts of the defendant’s offense—i.e., how the defendant actually went
about committing the crime in question.” 905 F.3d at 1233, 1252. We pointed out
that the Supreme Court in both Johnson and Dimaya emphasized that there was no
basis to “doubt the constitutionality of laws that call for the application of a
qualitative standard such as ‘substantial risk’ to real-world conduct.” Id. at 1233–
34 (quoting Johnson, 135 S. Ct. at 2561 and Dimaya, 138 S. Ct. at 1214).
Because Johnson and Dimaya did not affect § 924(c)(3)’s residual clause,
federal prisoners challenging their § 924(c) convictions and sentences in a second
or successive § 2255 motion cannot rely on those decisions to meet the
requirements of § 2255(h). In re Garrett, 908 F.3d 686, 688–89 (11th Cir. 2018)
(denying a federal prisoner’s successive § 2255 application and holding that
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Case: 17-15192 Date Filed: 04/26/2019 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-15192 Non-Argument Calendar ________________________
D.C. Docket Nos. 0:16-cv-61354-DMM; 0:08-cr-60090-DMM-2
DEVON CHANCE,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(April 26, 2019)
Before WILLIAM PRYOR, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 17-15192 Date Filed: 04/26/2019 Page: 2 of 6
Devon Chance appeals from the district court’s denial of his authorized
successive 28 U.S.C. § 2255 motion to vacate his sentence. The district court
granted a certificate of appealability (“COA”) on one issue: whether 18 U.S.C.
§ 924(c)(3)(B) is unconstitutional in light of the Supreme Court’s decision in
Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015). Because this
question has been answered in the negative by this Court’s recent precedents, we
affirm.
A federal jury found Chance guilty of six counts of Hobbs Act robbery, 18
U.S.C. § 1951(a); six counts of possession of a firearm during and in relation to a
crime of violence (predicated on the Hobbs Act robbery offenses), 18 U.S.C.
§ 924(c)(1); one count of conspiracy to commit Hobbs Act robbery, 18 U.S.C.
§ 1951(a); and one count of conspiracy to possess a firearm during and in relation
to a crime of violence (predicated on the conspiracy to commit Hobbs Act robbery
offense), 18 U.S.C. § 924(o). The district court sentenced Chance to a total of
1,794 months’ imprisonment, 60 months’ supervised release, and fines totaling
$1400. Chance’s convictions and sentence were affirmed on direct appeal, United
States v. Lewis, 433 F. App’x 844 (11th Cir. 2011) (unpublished), and the district
court subsequently denied his first § 2255 motion.
In Johnson, the Supreme Court held that the definition of “violent felony” in
§ 924(e)(2)(B)(ii) of the Armed Career Criminal Act—commonly called the
2 Case: 17-15192 Date Filed: 04/26/2019 Page: 3 of 6
“residual clause”—was unconstitutionally vague. 135 S. Ct. at 2557. The
Supreme Court later held that Johnson announced a new substantive rule that
applies retroactively to cases on collateral review. Welch v. United States, 136 S.
Ct. 1257, 1264-65, 1268 (2016). More recently, in Sessions v. Dimaya, 584 U.S.
___, 138 S. Ct. 1204 (2018), the Court extended Johnson to invalidate the residual-
clause definition of “crime of violence” in 18 U.S.C. § 16(b), as incorporated into
the Immigration and Nationality Act.
Relying on Johnson and Welch, Chance filed an application for leave to file
a second or successive § 2255 motion on the ground that the definition of “crime of
violence” in § 924(c)(3)’s residual clause1 had the same constitutional failings as
the ACCA’s residual clause, and that all seven of his convictions under
§§ 924(c)(1) and 924(o) were therefore invalid. We granted Chance leave to file a
second § 2255 motion on the limited issue of whether his conviction for conspiracy
to possess a firearm during and in relation to a crime of violence, predicated on
conspiracy to commit Hobbs Act robbery, was affected by Johnson.
Once given leave to do so, Chance filed a second § 2255 motion in the district
court, arguing (as relevant here) that conspiracy to commit Hobbs Act robbery could
1 Section 924(c)(3) defines a “crime of violence” as a felony offense that either “(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another” (the “elements clause”), 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” (the “residual clause”). 18 U.S.C. § 924(c)(3)(A)–(B); see Ovalles v. United States, 905 F.3d 1231, 1234 (11th Cir. 2018) (en banc). 3 Case: 17-15192 Date Filed: 04/26/2019 Page: 4 of 6
no longer serve as a predicate crime of violence for his § 924(o) conviction because
Johnson had rendered § 924(c)’s residual-clause definition of that term invalid, and
the offense did not otherwise meet the statutory definition of “crime of violence.”
Notably, Chance did not dispute that his conspiracy offense met the definition in the
residual clause; he argued only that the residual clause was constitutionally invalid.
The district court, adopting in part the magistrate judge’s report and
recommendation, found that Johnson did not affect § 924(c)(3)’s residual clause,
based on our decision in Ovalles v. United States (“Ovalles I”), 861 F.3d 1257 (11th
Cir. 2017), vacated on reh’g en banc, 889 F.3d 1259 (11th Cir. 2018). The court
denied Chance’s § 2255 motion but granted him a COA, and Chance appealed.
In reviewing the district court’s denial of a § 2255 motion to vacate, we
review the court’s legal conclusions de novo and its findings of fact for clear error.
Stoufflet v. United States, 757 F.3d 1236, 1239 (11th Cir. 2014). Although the
decisions on which we now rely were issued after the district court denied
Chance’s § 2255 motion, they support the court’s analysis and decision.
While Chance’s appeal was pending, we held en banc in Ovalles v. United
States, 905 F.3d 1231 (11th Cir. 2018) (“Ovalles II”) that § 924(c)(3)’s residual
clause is not unconstitutionally vague under Johnson and Dimaya because, unlike
the similarly-worded residual clauses in the ACCA and § 16(b), § 924(c)(3)(B)
could be plausibly interpreted to incorporate an approach that “focuses . . . on the
4 Case: 17-15192 Date Filed: 04/26/2019 Page: 5 of 6
real-world facts of the defendant’s offense—i.e., how the defendant actually went
about committing the crime in question.” 905 F.3d at 1233, 1252. We pointed out
that the Supreme Court in both Johnson and Dimaya emphasized that there was no
basis to “doubt the constitutionality of laws that call for the application of a
qualitative standard such as ‘substantial risk’ to real-world conduct.” Id. at 1233–
34 (quoting Johnson, 135 S. Ct. at 2561 and Dimaya, 138 S. Ct. at 1214).
Because Johnson and Dimaya did not affect § 924(c)(3)’s residual clause,
federal prisoners challenging their § 924(c) convictions and sentences in a second
or successive § 2255 motion cannot rely on those decisions to meet the
requirements of § 2255(h). In re Garrett, 908 F.3d 686, 688–89 (11th Cir. 2018)
(denying a federal prisoner’s successive § 2255 application and holding that
“neither Johnson nor Dimaya supplies any ‘rule of constitutional law’—‘new’ or
old, ‘retroactive’ or nonretroactive, ‘previously unavailable’ or otherwise—that
can support a vagueness-based challenge to the residual clause of section 924(c)”);
see United States v. St. Hubert, 909 F.3d 335, 346 (11th Cir. 2018) (holding that
three-judge orders ruling on successive § 2255 applications are “binding precedent
on all subsequent panels of this Court, including those reviewing direct appeals
and collateral attacks” (emphasis in the original)). And to the extent that Chance
might argue that the trial court erred in his case by applying a “categorical
approach” to § 924(c)(3)’s residual clause, rather than the conduct-based approach
5 Case: 17-15192 Date Filed: 04/26/2019 Page: 6 of 6
mandated by Ovalles II, such a claim would not meet the requirements of
§ 2255(h) either, because it is statutory rather than constitutional. See Solomon v.
United States, 911 F.3d 1356, 1361 (11th Cir. 2019); Garrett, 908 F.3d at 689.
The failure to satisfy § 2255(h) is fatal to Chance’s authorized successive
§ 2255 motion. See Solomon, 911 F.3d at 1360–61; Randolph v. United States,
904 F.3d 962, 964–65 (11th Cir. 2018). The district court did not err in denying
the motion, and we therefore affirm.
AFFIRMED.