Juan Mercado v. United States

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 2, 2018
• Docket: 17-10343
• Status: Unpublished

Opinion

Case: 17-10343 Date Filed: 05/02/2018 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-10343 Non-Argument Calendar ________________________

D.C. Docket Nos. 9:16-cv-81104-WJZ; 9:10-cr-80139-WJZ-3

JUAN MERCADO,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(May 2, 2018)

Before TJOFLAT, NEWSOM, and EDMONDSON, Circuit Judges. Case: 17-10343 Date Filed: 05/02/2018 Page: 2 of 4

PER CURIAM:

Juan Mercado, a federal prisoner, appeals the district court’s denial of his 28

U.S.C. § 2255 motion to vacate and to correct his sentence. No reversible error has

been shown; we affirm.

In 2010, Mercado pleaded guilty to armed bank robbery (in violation of 18

U.S.C. § 2113(a) and (d)) and to brandishing a firearm during and in relation to a

crime of violence (in violation of 18 U.S.C. § 924(c)(1)(A)). Mercado filed no

direct appeal.

In his section 2255 motion, Mercado argued that he was “actually innocent”

of his conviction under 18 U.S.C. § 924(c). * The district court denied Mercado’s

motion. A member of this Court then granted a certificate of appealability on this

issue: “Whether the District Court erred in concluding Mr. Mercado’s conviction

under 18 U.S.C. § 924(c), predicated on armed bank robbery under 18 U.S.C. §

2113(a) and (d), was unaffected by the Supreme Court’s ruling in Johnson v.

United States, 576 U.S. ___, 135 S. Ct. 2551 (2015).”

We review de novo legal issues in section 2255 proceedings. Lynn v.

United States, 365 F.3d 1225, 1232 (11th Cir. 2004). Whether an offense

constitutes a “crime of violence” for purposes of section 924(c) is a legal question

* Mercado raised no challenge to his conviction or sentence for armed bank robbery, 18 U.S.C. § 2113(a) and (d). 2 Case: 17-10343 Date Filed: 05/02/2018 Page: 3 of 4

subject to de novo review. 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 if a defendant brandishes a firearm during a crime of violence. 18

U.S.C. § 924(c)(1)(A)(ii). “Crime of violence” is defined as a felony that satisfies

at least one of the following criteria:

(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.

28 U.S.C. § 924(c)(3).

Mercado contends that the Supreme Court’s decision in Johnson -- which

struck down, as unconstitutionally vague, the residual clause of the Armed Career

Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii) -- also invalidated the “risk-of-force

clause” in section 924(c)(3)(B). This argument, however, is foreclosed by this

Court’s binding precedent. See Ovalles v. United States, 861 F.3d 1257, 1265

(11th Cir. 2017) (concluding expressly that “Johnson’s void-for-vagueness ruling

does not apply to or invalidate the ‘risk-of-force’ clause in § 924(c)(3)(B).”).

Moreover, this Court has already concluded that a conviction for armed bank

robbery constitutes a “crime of violence” under the “use-of-force clause” in section

924(c)(3)(A). See In re Hines, 824 F.3d 1334, 1337 (11th Cir. 2016) (denying an 3 Case: 17-10343 Date Filed: 05/02/2018 Page: 4 of 4

application for leave to file a second or successive section 2255 motion); In re

Hunt, 835 F.3d 1277, 1277 (11th Cir. 2016) (same). We are bound by that

precedent. See In re Lambrix, 776 F.3d 789, 794 (11th Cir. 2015) (explaining that

“our prior-panel-precedent rule applies with equal force as to prior panel decisions

published in the context of applications to file second or successive petitions.”);

United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (under this Court’s

prior-panel-precedent rule, “a prior panel’s holding is binding on all subsequent

panels unless and until it is overruled or undermined to the point of abrogation by

the Supreme Court or by this court sitting en banc.”).

Because Mercado’s conviction is unaffected by the Supreme Court’s

decision in Johnson, we affirm the denial of his section 2255 motion.

AFFIRMED.