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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-14701 Non-Argument Calendar ________________________
D.C. Docket Nos. 1:16-cv-21973-RNS; 1:04-cr-20112-RNS-2
KENNEDY TERRELL WALKER,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(August 25, 2021)
Before WILLIAM PRYOR, Chief Judge, GRANT, and JULIE CARNES, Circuit Judges.
PER CURIAM: USCA11 Case: 17-14701 Date Filed: 08/25/2021 Page: 2 of 21
Petitioner Kennedy Walker appeals the district court’s denial of his 28
U.S.C. § 2255 petition to vacate the sentences he received on convictions of
carjacking in violation of 18 U.S.C. § 2119 (two counts) and brandishing a firearm
during a crime of violence in violation of 18 U.S.C. § 924(c). Walker was
sentenced to life for the carjackings pursuant to the federal three-strikes law, 18
U.S.C. § 3559(c). In addition to the life sentence, Walker received a consecutive
seven-year sentence under § 924(c), based on the jury’s finding that he had
brandished a firearm while committing the carjacking offenses. In his § 2255
petition, Walker argued that neither sentence was valid after the Supreme Court’s
decision in Johnson v. United States, 576 U.S. 591 (2015) that the residual clause
of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), is
unconstitutionally vague. According to Walker, the sentencing court relied on
similarly worded, and equally vague, residual clauses in § 3559(c) and § 924(c)
when the court sentenced him under those provisions.
The district court denied Walker’s § 2255 petition based on this Court’s
holding in Ovalles v. United States, 861 F.3d 1257 (11th Cir. 2017) (Ovalles I) that
Johnson does not apply to § 924(c) and its reasoning that, per Ovalles I, Johnson
likewise should not apply to § 3559(c). At the time the court denied Walker’s
petition, Ovalles I was binding precedent as to the validity of § 924(c)’s residual
clause. Nevertheless, the court issued a Certificate of Appealability (“COA”) as to
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the question “whether Johnson applies” to invalidate the residual clauses of
§ 924(c) and § 3559(c). The court concluded that question was “debatable” and
“being debated” by reasonable jurists. This appeal by Walker followed.
While Walker’s appeal was pending, this Court vacated Ovalles I in an en
banc opinion that again concluded, albeit under a different rationale than was
applied in Ovalles I, that the residual clause of § 924(c) survives Johnson. See
Ovalles v. United States, 905 F.3d 1231, 1252 (11th Cir. 2018) (en banc) (Ovalles
II). Thereafter, the Supreme Court decided United States v. Davis, 139 S. Ct. 2319
(2019), which abrogated Ovalles II and held that the residual clause of § 924(c) is
indeed unconstitutionally vague per the reasoning of Johnson. See Davis, 139 S.
Ct. at 2336.
Davis decided one of the questions posed in the COA underlying this
appeal—that is, whether Johnson applies to the residual clause of § 924(c)—in
favor of Walker, and it drew into question the rationale underlying the district
court’s conclusion that Johnson does not apply to § 3559(c). Accordingly, this
Court expanded and revised the COA to include the questions (1) whether the
residual clause of § 3559(c)—§ 3559(c)(2)(F)(ii)—is unconstitutionally vague, and
(2) whether the residual clauses of § 3559(c) or § 924(c) “adversely affected the
sentence that [Walker] received” as required for him to prevail on the merits of his
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habeas petition. The parties have submitted supplemental briefing as to both
questions, as requested by the Court.
In addition to the above developments, this Court recently held that a
petitioner’s habeas claim based on the invalidity of § 924(c)’s residual clause
under Johnson and Davis was procedurally defaulted because the petitioner failed
to argue at trial or on direct appeal that the residual clause of § 924(c) is
unconstitutionally vague. See Granda v. United States, 990 F.3d 1272, 1285–92
(11th Cir. 2021). The Government has submitted Granda as a supplemental
authority to support its argument, made in the initial and supplemental briefing,
that Walker’s Johnson claim likewise is procedurally defaulted.
Having reviewed the record, the initial and supplemental briefing, and the
supplemental authority submitted by the Government, we AFFIRM the district
court’s denial of Walker’s § 2255 petition.
BACKGROUND
In 2004, a jury convicted Petitioner Kennedy Walker of: (1) two counts of
carjacking in violation of 18 U.S.C. § 2119, (2) brandishing a firearm during and in
relation to a crime of violence in violation of 18 U.S.C. § 924(c), and (3) being a
felon in possession of a firearm in violation of 18 U.S.C. § 922(g). According to
Walker’s PSR, the convictions arose from an incident during which Walker and his
co-defendant Tyrone Brown approached two victims in a parking lot, threatened
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the first victim with a gun, struck the second victim in the ribs, and then stole and
escaped with both victims’ wallets and vehicles. Walker was apprehended after he
led officers on a dangerous car chase while driving one of the stolen vehicles. The
officers recovered two loaded guns and several rounds of ammunition from the
vehicle Walker was driving.
Walker’s PSR assigned him a base offense level of 24 for the carjacking and
§ 922(g) convictions because he committed the offenses after sustaining at least
two felony convictions for either a crime of violence or a controlled substance
offense. It applied multi-level increases based on Walker’s use of a firearm in
connection with the carjackings, his status as an organizer of the crime, and the
fact that he led officers on a car chase, during which he drove recklessly and
“created a substantial risk of death or serious bodily injury” while attempting to
flee, prior to his arrest. Ultimately, the PSR calculated Walker’s combined
adjusted offense level for the carjacking and § 922(g) convictions to be 34, which
was increased to 37 by application of a career offender enhancement based on a
determination that Walker’s carjacking offenses were crimes of violence and that
Walker had four prior felony convictions for crimes of violence or controlled
substance offenses. The PSR specifically identified Walker’s two prior Florida
armed robbery convictions—one in 1989 and the other in 1990, and both in
violation of Florida Statutes § 812.13—as crimes of violence.
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Walker’s offense level of 37 and criminal history category of IV yielded a
recommended sentencing guidelines range of 360 months to life imprisonment.
However, the PSR determined Walker was subject to a mandatory life sentence for
the carjackings under 18 U.S.C. § 3559(c), the federal “three-strikes” law that
requires a mandatory life sentence upon a defendant’s third conviction for a
“serious violent felony.” See 18 U.S.C. § 3559(c)(1)(A)(i). It also determined that
Walker was subject to an additional seven-year consecutive term of imprisonment
under § 924(c), which requires such a consecutive sentence when a defendant uses
or carries a firearm during a “crime of violence.” See 18 U.S.C. § 924(c)(1)(A).
Finally, the PSR determined Walker was subject to a 180-month mandatory
minimum sentence on his § 922(g) conviction.
The district court accepted the PSR’s recommendations and sentenced
Walker to life imprisonment on the carjacking convictions under § 3559(c), plus an
additional seven years imprisonment under § 924(c) for brandishing a firearm
during the carjacking offenses. Walker directly appealed his convictions and
sentences, but he did not argue on appeal that the sentences he received were
invalid because they were based on the unconstitutionally vague residual clauses of
§ 3559(c) and § 924(c). See United States v. Walker, 201 F. App’x 737, 738 (11th
Cir. 2006). This Court denied Walker’s appeal and affirmed the judgment against
him. See id. at 741.
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Walker filed the instant § 2255 petition in 2016, within a year of the
Supreme Court’s decision in Johnson striking the residual clause of the ACCA as
unconstitutional. In support of his petition, Walker argued that Johnson
invalidated the residual clauses of § 3559(c) and § 924(c), which are worded
similarly to the ACCA’s residual clause.1 According to Walker, he was no longer
eligible to be sentenced under § 3559(c) and § 924(c) after Johnson, because his
relevant convictions qualified as predicates only under the residual clauses of those
provisions rather than under the still-valid enumerated offenses or elements clause
of § 3559(c) or the still-valid elements clause of § 924(c).
The district court denied Walker’s § 2255 petition. As outlined briefly
above, the court first determined that Walker’s § 924(c) claim was foreclosed by
this Court’s then-binding decision in Ovalles I that Johnson does not apply to or
invalidate § 924(c)’s residual clause. The court then concluded that Johnson did
not invalidate § 3559(c)’s residual clause because that clause closely resembles
§ 924(c)’s residual clause. Nevertheless, the court issued a COA as to the question
“whether Johnson applies to the provisions of § 924(c) and § 3559(c) . . . since it
1 Walker also argued in his petition that he was unlawfully sentenced under the ACCA and the sentencing guidelines per Johnson. However, Walker has not briefed or otherwise indicated any intent to pursue his ACCA and guidelines arguments on appeal. Thus, we do not address those arguments. 7 USCA11 Case: 17-14701 Date Filed: 08/25/2021 Page: 8 of 21
appears from Walker’s citations that the questions raised are indeed debatable and,
in fact, are being debated, among reasonable jurists.” Walker appealed.
While Walker’s appeal was pending, the Supreme Court decided the first
question posed in the COA when it held, in Davis, that § 924(c)’s residual clause is
unconstitutionally vague per the reasoning of Johnson. See Davis, 139 S. Ct. at
2336. Accordingly, this Court revised and expanded the COA in this case to
include the questions whether (1) the residual clause of § 3559(c) is
unconstitutionally vague and (2) the residual clauses of § 3559(c) or § 924(c)
“adversely affected the sentence that [Walker] received” as required for him to
obtain relief on his § 2255 petition. In addition to these developments, this Court
recently held that a petitioner’s claim challenging the validity of § 924(c)’s
residual clause under Johnson was procedurally defaulted because the petitioner
failed to challenge the constitutionality of the residual clause at trial or on direct
appeal. See Granda, 990 F.3d at 1292. The Government has cited Granda as a
supplemental authority in support of its argument that Walker likewise
procedurally defaulted the claims asserted in his § 2255 petition by failing to raise
them on direct appeal.
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DISCUSSION
I. Standard of Review
An appeal from a district court’s final order in a § 2255 proceeding is
available only if the petitioner makes a “substantial showing of the denial of a
constitutional right” as to a “specific issue or issues” identified in a COA. 28
U.S.C. § 2253(c). Assuming the COA requirement is met, we review the district
court’s legal conclusions in a § 2255 appeal de novo, and its factual findings for
clear error. See Carmichael v. United States, 966 F.3d 1250, 1258 (11th Cir.
2020). Whether a claim asserted in a § 2255 petition is procedurally defaulted is a
mixed question of law and fact, which we review de novo. See Granda, 990 F.3d
at 1286.
II. Procedural Default
In support of his § 2255 petition, Walker argues that his life sentence under
§ 3559(c) and consecutive seven-year sentence under § 924(c) are invalid because
the sentences are based on the residual clauses of § 3559(c) and § 924(c), both of
which Walker contends are unconstitutionally vague per the Supreme Court’s
reasoning in Johnson and, more recently, Davis. Before addressing the merits of
that argument, we note that Walker failed to challenge the constitutionality of the
residual clause of § 3559(c) or § 924(c) during his 2004 criminal proceeding or on
direct appeal. The Government thus argues that Walker’s § 2255 claim based on
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the purported invalidity of those provisions is procedurally defaulted, and its
argument finds support in recent authority from this Court. See Granda, 990 F.3d
at 1286 (noting that “a defendant generally must advance an available challenge to
a criminal conviction on direct appeal or else the defendant is barred from raising
that claim in a habeas proceeding” and rejecting the petitioner’s argument that the
novelty of his claim challenging the constitutionality of § 924(c)’s residual clause
established cause for his failure to assert the claim during his criminal proceeding
or on direct appeal) (quotation marks omitted).
However, the Government concedes that it failed to assert procedural default
as a defense in response to Walker’s § 2255 petition, and thus arguably waived the
defense. See Howard v. United States, 374 F.3d 1068, 1070 (11th Cir. 2004)
(concluding that “the government procedurally defaulted” its procedural bar
defense “by failing to raise th[e] affirmative defense in the district court”). It is not
entirely clear that a waiver occurred here. Although the Government did not assert
a procedural default defense in its initial response to Walker’s § 2255 petition, the
issue was argued in the proceedings below. In his R&R recommending denial of
the petition, the Magistrate Judge determined, sua sponte, that Walker’s Johnson
claim was procedurally defaulted. Walker argued against application of the
procedural default defense in his objections to the R&R, and the Government
asserted the defense in its response to Walker’s objections. Thus, Walker had an
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opportunity in the district court to overcome the default by showing actual
innocence or cause and prejudice. Compare id. at 1073 (pointing out that “[t]he
government failed to raise the defense of procedural default in the district court,
and the court did not bring it up either” (emphasis added)) and Foster v. United
States, 996 F.3d 1100, 1106 (11th Cir. 2021) (rejecting the Government’s
procedural default defense where it was asserted for the first time on appeal and
the petitioner had no opportunity in the proceedings below to overcome the
default).
Nevertheless, we are not required to rule on the procedural default defense
given the Government’s failure to assert it in the first instance, and there is some
uncertainty in the law as to exactly when it is appropriate for a court to raise the
issue sua sponte. See Trest v. Cain, 522 U.S. 87, 90 (1997) (recognizing “some
uncertainty in the lower courts as to whether, or just when, a habeas court may
consider a procedural default that the State at some point has waived, or failed to
raise”); Esslinger v. Davis, 44 F.3d 1515, 1525–26 (11th Cir. 1995) (holding that
the lower court’s sua sponte invocation of procedural default served no important
federal interest under the circumstances); Burgess v. United States, 874 F.3d 1292,
1296–99 (11th Cir. 2017) (discussing the “competing lines of legal reasoning”
relevant to the question whether “a district court has the authority in resolving a
§ 2255 motion to raise in the first instance a plea agreement’s collateral-action
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waiver”). Accordingly, and while we acknowledge that there is a strong argument
that Walker’s claim is procedurally defaulted in light of this Court’s recent
decision in Granda, we will proceed to, and resolve this appeal based on, the
merits of the claims asserted in Walker’s § 2255 petition.
III. Merits
Regarding the merits, the revised COA identifies two issues for the Court to
decide: (1) whether the residual clause of § 3559(c) is unconstitutionally vague per
the Supreme Court’s decisions in Johnson and Davis, and (2) given that the
Supreme Court has now held the residual clause of § 924(c) to be unconstitutional
and assuming the residual clause of § 3559(c) is likewise unconstitutional, whether
either of those provisions adversely affected Walker’s sentence. The Government
concedes in its supplemental briefing that § 3559(c)’s residual clause is
unconstitutionally vague based on the Supreme Court’s recent decision in Davis,
and it has withdrawn its prior arguments as to the survival of that clause. We
assume the Government is correct to concede this point. As noted in the revised
COA, the text of § 3559(c)’s residual clause is “almost identical to the language of
its counterpart in § 924(c)” and it raises the same vagueness concerns as the
residual clauses of the ACCA and § 924(c) struck down in Johnson and Davis—
namely, it requires the sentencing court to apply an imprecise risk standard to
determine whether the residual clause applies in a particular case. See Davis, 139
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S. Ct. at 2326 (comparing the residual clauses of the ACCA and § 16(b) to the
residual clause of § 924(c) and explaining why all three are unconstitutionally
vague).
Nevertheless, a petitioner is entitled to habeas relief on a Johnson claim only
if the residual clause “actually adversely affected the sentence he received.”
Beeman v. United States, 871 F.3d 1215, 1221 (11th Cir. 2017). See also In re
Hammoud, 931 F.3d 1032, 1041 (11th Cir. 2019) (noting that a § 2255 petitioner
challenging his § 924(c) conviction under Davis has “the burden of showing that
he is actually entitled to relief on his Davis claim, meaning he will have to show
that his § 924(c) conviction resulted from application of solely the residual
clause”). As explained more fully below, Walker’s sentence was not adversely
affected by the residual clause of either § 3559(c) or § 924(c). Walker’s federal
carjacking offense is a serious violent felony under the enumerated offenses clause
of § 3559(c), and the sentencing court determined that his two prior Florida armed
robberies qualified as serious violent felonies, and thus § 3559(c) predicates, not
only under the residual clause but also under the enumerated offenses and the
elements clauses of that provision. As to § 924(c), Walker’s federal carjacking
offense was at the time of his conviction, and remains today, a valid predicate
under the elements clause § 924(c). Thus, because Walker’s sentence was not
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adversely impacted by the residual clauses of either § 3559(c) or § 924(c), his
§ 2255 petition based on the invalidity of those provisions must fail.
A. Walker’s mandatory minimum life sentence under § 3559(c)
Walker was sentenced to life imprisonment for his federal carjacking
convictions pursuant to 18 U.S.C. § 3559(c). Section 3559(c) is the federal “three-
strikes” law that requires a mandatory minimum life sentence when a defendant is
convicted of a serious violent felony and the defendant “has previously been
convicted of a combination of two or more serious violent felonies or serious drug
offenses.” See United States v. Harris, 741 F.3d 1245, 1248 (11th Cir. 2014).
Section 3559(c) defines “serious violent felony” to include: (1) a list of
enumerated offenses, including carjacking in violation of 28 U.S.C. § 2119,
(2) “any other offense punishable by a maximum term of imprisonment of 10 years
or more that has as an element the use, attempted use, or threatened use of physical
force” against another person, and (3) an offense punishable by a maximum 10-
year term of imprisonment and that “by its nature, involves a substantial risk that
physical force against the person of another may be used in the course of
committing the offense.” See 18 U.S.C. § 3559(c)(2)(F).
The first prong of the above definition is known as the “enumerated
offenses” clause, the second prong as the “elements” clause, and the third prong as
the “residual” clause. See Beeman, 871 F.3d at 1218. As discussed above, the
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Supreme Court held in Johnson that the ACCA’s similarly worded residual clause
is unconstitutionally vague. See Johnson, 576 U.S. at 596. In Davis, the Supreme
Court extended Johnson to hold that the residual clause of § 924(c) is likewise
unconstitutionally vague. See Davis, 139 S. Ct. at 2336. See also Sessions v.
Dimaya, 138 S. Ct. 1204, 1223 (2018) (applying Johnson and holding that the
residual clause of 18 U.S.C. § 16 is unconstitutionally vague). The Government
now concedes that the residual clause of § 3559(c) is also unconstitutionally vague.
However, the Supreme Court clarified in Johnson that the decision did “not
call into question” the validity of the other clauses under which an offense can
qualify as an ACCA predicate, including the ACCA’s enumerated offenses clause
and elements clause. See Johnson, 576 U.S. at 606. Accordingly, this Court has
required a § 2255 petitioner asserting a Johnson claim to “show that—more likely
than not—it was use of the residual clause that led to the sentencing court’s
enhancement of his sentence” under the ACCA. See Beeman, 871 F.3d at 1222.
As the Court explained in Beeman, that is the case only:
(1) if the sentencing court relied solely on the residual clause, as opposed to also or solely relying on either the enumerated offenses clause or elements clause (neither of which were called into question by Johnson) to qualify a prior conviction as a violent felony, and (2) if there were not at least three other prior convictions that could have qualified under either of those two clauses as a violent felony.
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Id. at 1221. See also United States v. Pickett, 916 F.3d 960, 963 (11th Cir. 2019)
(“Put simply, it must be more likely than not that the sentence was based on the
residual clause and only the residual clause.” (emphasis in original)).
Beeman arose in the context of the ACCA, but Walker acknowledges that its
reasoning applies with equal force to his habeas claim based on the
unconstitutionality of the residual clause of § 3559(c). Similar to the ACCA,
§ 3559(c) requires the sentencing judge to impose a statutorily mandated minimum
sentence when a defendant who is convicted of a specified crime (possession of a
firearm by a convicted felon in the case of the ACCA, and a serious violent felony
in the case of § 3559(c)) has the requisite predicate convictions for offenses that
qualify as serious violent felonies. And like the ACCA, § 3559(c)’s definition of a
serious violent felony includes offenses that meet the requirements of either an
enumerated crimes clause, an elements clause, or a residual clause. Pursuant to
Johnson and the Supreme Court’s later decision in Davis, a conviction can no
longer qualify as a serious violent felony—and thus a § 3559(c) predicate—under
the residual clause, but the conviction might nevertheless still qualify under the
enumerated crimes or elements clauses of § 3559(c), which remain valid. Thus,
under Beeman, a § 2255 petitioner asserting a Johnson challenge to his life
sentence under § 3559(c) must show that the sentencing judge did not rely on the
still-valid enumerated crimes or elements clauses when applying § 3559(c).
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Walker cannot meet his burden under Beeman to show that the sentencing
court “relied solely on the residual clause, as opposed to also or solely relying on
either the enumerated offenses clause or elements clause.” See Beeman, 871 F.3d
at 1221. Indeed, the sentencing record conclusively establishes just the opposite.
Walker does not dispute that his federal carjacking convictions in this case qualify
as serious violent felonies under the enumerated offenses clause of § 3559(c),
rather than the residual clause. The sentencing judge determined that Walker was
eligible for a life sentence on the carjacking convictions under § 3559(c) because at
the time of his conviction he had two prior Florida armed robbery convictions that
constituted serious violent felonies under the residual clause of § 3559(c), as well
as the enumerated offenses and elements clauses.
As to the Florida robbery convictions, the sentencing judge expressly stated
during Walker’s sentencing hearing that those convictions satisfied both the
enumerated offenses and elements clauses of § 3559(c), in addition to the residual
clause. Specifically, the judge stated that the Florida robbery convictions qualified
under the enumerated crimes clauses because they were “like firearms possession
ascribed in Section 924(c)” and that they qualified under the elements clause
because they were “punishable by a maximum term of ten years or more” and they
“ha[d] as an element the use, attempted us, or the actual use of physical force.”
The sentencing judge’s express reliance on the enumerated crimes and elements
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clauses to classify Walker’s prior Florida robbery convictions as serious violent
felonies precludes Walker’s § 2255 claim based on the unconstitutionality of
§ 3559(c)’s residual clause. See Pickett, 961 F.3d at 963 (noting that the
sentencing record is determinative of the Beeman inquiry when it contains direct
evidence as to whether the sentencing judge relied on the residual clause).
We note further that the Supreme Court recently held that a robbery
conviction under Florida Statutes § 812.13 satisfies the ACCA’s elements clause
under current law. See Stokeling v. United States, 139 S. Ct. 544, 555 (2019)
(“Florida robbery qualifies as an ACCA-predicate offense under the elements
clause.”). Stokeling confirmed this Court’s determination in prior cases that
robbery as defined by Florida Statutes § 812.13 “has as an element the use,
attempted use, or threatened use of physical force against the person of another.”
See id. at 554 (internal quotation marks omitted). See also United States v. Fritts,
841 F.3d 937, 940–44 (11th Cir. 2016) (discussing Circuit case law holding that
Florida robberies, like Walker’s, satisfy the elements clause and concluding that
the petitioner’s Florida armed robbery conviction under § 812.13 likewise
categorically qualified as a violent felony under the elements clause). The
ACCA’s elements clause is identical to the elements clause of § 3559(c). Pursuant
to Stokeling and Fritts, Walker’s prior Florida robbery convictions would thus
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satisfy § 3559(c)’s elements clause even if he were convicted today. 2 For all these
reasons, Walker cannot prevail on his § 2255 claim challenging his life sentence
under § 3559(c), despite the invalidity of § 3559(c)’s residual clause.
B. Walker’s conviction and consecutive sentence under § 924(c)
Walker was sentenced to seven years, to be served consecutively to his life
sentence, pursuant to 18 U.S.C. § 924(c). Section 924(c) requires such a
consecutive sentence when a defendant brandishes a firearm during a “crime of
violence.” See 18 U.S.C. § 924(c)(1)(A)(ii). Section 924(c) defines “crime of
violence” to mean an offense that is a felony and that: (1) “has as an element the
use, attempted use, or threatened use of physical force” against another person or
his property, or (2) “by its nature, involves a substantial risk that physical force
2 That remains true after the Supreme Court’s recent decision in Borden v. United States, 141 S. Ct. 1817 (2021). In Borden, the Supreme Court held that an offense cannot qualify as a violent felony under the ACCA’s elements clause if the offense “requires only a mens rea of recklessness—a less culpable mental state than purpose or knowledge.” Borden, 141 S. Ct. at 1821–22. Pursuant to that holding, the Court concluded that the defendant’s conviction for reckless aggravated assault in violation of Tennessee law did not qualify as an ACCA predicate. Id. at 1822, 1834. But there is no support for Walker’s contention that Florida armed robbery, as defined by Florida Statutes § 812.13 at the time of Walker’s convictions in 1989 and 1990, could somehow be accomplished recklessly or negligently. On the contrary, this Court explained in Fritts that the Florida robbery statute requires, and has always required, “resistance by the victim and physical force by the offender that overcomes that resistance.” Fritts, 841 F.3d at 943 (citing the Florida Supreme Court’s decision interpreting the Florida robbery statute in Robinson v. State, 692 So. 2d 883, 886 (Fla. 1997) (internal quotation marks omitted)). Walker does not cite any case law suggesting that such force could be employed recklessly or negligently, and the Supreme Court specifically held in Stokeling that “the elements clause encompasses robbery offenses” such as Florida robbery “that require the criminal to overcome the victim’s resistance.” Stokeling, 139 S. Ct. at 550. Nothing in Borden contravenes Stokeling on this point. See Borden, 141 S. Ct. at 1822 (citing Stokeling). 19 USCA11 Case: 17-14701 Date Filed: 08/25/2021 Page: 20 of 21
against the person or property of another may be used in the course of committing
the offense.” 18 U.S.C. § 924(c)(3). Thus, § 924(c) contains an elements clause
and a residual clause.
Walker argues that his sentence under § 924(c) is no longer valid as a result
of the Supreme Court’s decision in Davis striking § 924(c)’s residual clause as
unconstitutionally vague, but we are unpersuaded. Again, § 924(c)’s elements
clause remains valid. See Johnson, 576 U.S. at 606. The sentencing judge applied
§ 924(c) to Walker based on the jury’s determination that Walker had brandished a
firearm while committing a federal carjacking in violation of 18 U.S.C. § 2119.
The law at the time of Walker’s conviction provided that federal carjacking was a
crime of violence—and thus a valid § 924(c) predicate—under the elements clause.
See United States v. Moore, 43 F.3d 568, 572–73 (11th Cir. 1995) (explaining that
federal carjacking satisfies § 924(c)’s elements clause because “taking or
attempting to take [a car] by force and violence or by intimidation”—as described
in the federal carjacking statute, § 2119—encompasses “the use, attempted use, or
threatened use of physical force” (internal quotation marks omitted).
This Court later confirmed, post-Johnson, that federal carjacking as defined
by § 2119 still qualifies as a valid predicate under § 924(c)’s elements clause. See
In re Smith, 829 F.3d 1276, 1280 (11th Cir. 2016) (“[A]n element requiring that
one take or attempt to take by force and violence or by intimidation, which is what
20 USCA11 Case: 17-14701 Date Filed: 08/25/2021 Page: 21 of 21
the federal carjacking statute does, satisfies the [elements] clause of § 924(c),
which requires the use, attempted use, or threatened use of physical force”). The
Court in Smith denied an application to file a second or successive § 2255 petition
challenging the constitutionality of a carjacking-predicated § 924(c) conviction
under Johnson because “regardless of the validity of § 924(c)’s residual clause” the
conviction “m[et] the requirements of that statute’s [elements] clause.” Id. at 1281.
See also Granda, 990 F.3d at 1285 (noting that carjacking in violation of § 2119
“categorically qualifies as a crime of violence under the § 924(c)(3) elements
clause and is, therefore, a valid predicate for a [§ 924(o)] conviction”); In re Fleur,
824 F.3d 1337, 1341 (11th Cir. 2016) (denying the petitioner’s application to file a
second or successive § 2255 petition to assert a Johnson claim challenging the
constitutionality of § 924(c)’s residual clause where the challenged “sentence
would be valid” even if § 924(c)’s residual clause is unconstitutional under
Johnson). The reasoning of Smith is controlling here, and it precludes Walker’s
attempt to challenge the validity of his § 924(c) conviction and sentence based on
Johnson and Davis.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s order denying
Walker’s § 2255 petition.