Case: 18-11040 Date Filed: 02/26/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-11040 Non-Argument Calendar ________________________
D.C. Docket No. 1:16-cv-22567-KMM, 1:13-cr-20207-KMM-2
TRAVARIS CRAWFORD,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee. ________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(February 26, 2020)
Before WILSON, TJOFLAT, and ANDERSON, Circuit Judges.
PER CURIAM:
Travaris Crawford appeals the District Court’s denial of his 28 U.S.C.
§ 2255 motion to vacate his conviction under 18 U.S.C. § 924(c)(1)(A) and the Case: 18-11040 Date Filed: 02/26/2020 Page: 2 of 7
corresponding sentence. The District Court held that Crawford’s argument that
§ 924(c)(3) is unconstitutionally vague was foreclosed by our decision in Ovalles.1
We reject that argument and affirm the District Court’s judgment on alternative
grounds.
I.
In 2013, Crawford pled guilty to three counts of Hobbs Act robbery, in
violation of 18 U.S.C. § 1951(a), and one count of possession of a firearm in
furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c). Section
924(c) provides for a mandatory consecutive sentence for any defendant who uses
or carries a firearm during and in relation to, or possesses a firearm in furtherance
of, either a “crime of violence” or a “drug trafficking crime.” 18 U.S.C. §
924(c)(1)(A).
The statute defines a “crime of violence” as a felony offense 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.
18 U.S.C.A. § 924(c)(3). We refer to § 924(c)(3)(A) as the elements clause and
§ 924(c)(3)(B) as the residual clause.
1 Ovalles v. United States, 861 F.3d 1257, 1263–67 (11th Cir. 2017), vacated on reh’g en banc, 905 F.3d 1356 (2018). 2 Case: 18-11040 Date Filed: 02/26/2020 Page: 3 of 7
In 2015, the Supreme Court decided Johnson v. United States, 135 S. Ct.
2551 (2015), holding that a similar residual clause in the Armed Career Criminal
Act of 1984 is unconstitutionally vague. Crawford then filed a § 2255 motion to
vacate. He argued that, in light of Johnson, § 924(c)’s residual clause is
unconstitutionally vague. He also argued that his conviction for substantive Hobbs
Act robbery did not qualify as a crime of violence under the elements clause
because it could be accomplished without physical force.
The District Court denied Crawford’s motion. Specifically, it held that
Crawford’s argument about the residual clause was “squarely foreclosed by the
Eleventh Circuit’s decision in Ovalles.” Because the felony qualified under the
residual clause, the District Court concluded that it “need not address [Crawford’s]
second argument – that Hobbs Act robbery does not qualify as a crime of violence
under the [elements] clause.”
In 2018, we granted Crawford a certificate of appealability (“COA”) on one
issue only:
Whether the Supreme Court’s decision in Sessions v. Dimaya, No. 15- 1498, manuscript op. at 24-25 (Apr. 17, 2018), undermines this Court’s holding in Ovalles v. United States, 86[1] F.3d 1258, 1263-67 (11th Cir. 2017), that the [residual] clause in 18 U.S.C. § 924(c)(3)(B) is not unconstitutionally vague.
That issue has since been decided by the Supreme Court. In United States v.
Davis, 139 S. Ct. 2319 (2019), the Supreme Court held that the residual clause,
3 Case: 18-11040 Date Filed: 02/26/2020 Page: 4 of 7
§ 924(c)(3)(B), is unconstitutionally vague. Davis thus abrogated our decision in
Ovalles.
Crawford subsequently filed his opening brief with us, answering the
question in the COA in the affirmative and requesting remand to the District Court.
The government moved for summary affirmance, contending that Crawford’s
substantive Hobbs Acts offense qualifies as a crime of violence under the elements
clause and that this Court can summarily affirm the District Court on any basis
supported by the record. Crawford objects that this issue is outside the COA and
that the District Court did not address this issue. We directed the parties to file
supplemental letter briefs on whether the COA should be expanded and on the
merits issue. We now affirm.
II.
The COA is a jurisdictional prerequisite: an appeal cannot be taken to this
Court without it. 28 U.S.C. § 2253(c)(1) (“Unless a circuit justice or judge issues a
certificate of appealability, an appeal may not be taken to the court of appeals . .
.”); Gonzalez v. Thaler, 565 U.S. 134, 142, 132 S. Ct. 641, 649 (2012). A judge
can issue a COA only if the applicant “has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The COA must also
specify which issue or issues satisfy that showing. Id. § 2253(c)(3). But while
4 Case: 18-11040 Date Filed: 02/26/2020 Page: 5 of 7
“failure to obtain a COA is jurisdictional,” “a COA’s failure to indicate an issue is
not.” Gonzalez, 565 U.S. at 143, 132 S. Ct. at 649.
Although the specification requirement is not jurisdictional, we are still
bound by the clear text enacted by Congress. Spencer v. United States, 773 F.3d
1132, 1138 (11th Cir. 2014) (en banc). We cannot act in contradiction to the
statutory requirements. Id. As such, we have repeatedly held that “the scope of
our review of an unsuccessful § 2255 motion is limited to the issues enumerated in
the COA.” McKay v. United States, 657 F.3d 1190, 1195 (11th Cir. 2011); see
also Murray v. United States, 145 F.3d 1249, 1251 (11th Cir. 1998). Normally,
this limitation means that we disregard arguments raised by an appellant that are
outside the issues specified in the COA. See, e.g., Hodges v. Att’y Gen., 506 F.3d
1337, 1341 (11th Cir. 2007); Murray, 145 F.3d at 1251.
Here, however, the government requests that we consider—and summarily
affirm—on an issue not specified in the COA. The government points to the
Supreme Court’s decision Jennings v. Stephens, 574 U.S. 271, 135 S. Ct. 793, 796
(2015), arguing that we can affirm on any basis supported by the record.
In Jennings, the Supreme Court considered whether a petitioner-appellee
could defend his writ of habeas corpus on a theory that the District Court had
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Case: 18-11040 Date Filed: 02/26/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-11040 Non-Argument Calendar ________________________
D.C. Docket No. 1:16-cv-22567-KMM, 1:13-cr-20207-KMM-2
TRAVARIS CRAWFORD,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee. ________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(February 26, 2020)
Before WILSON, TJOFLAT, and ANDERSON, Circuit Judges.
PER CURIAM:
Travaris Crawford appeals the District Court’s denial of his 28 U.S.C.
§ 2255 motion to vacate his conviction under 18 U.S.C. § 924(c)(1)(A) and the Case: 18-11040 Date Filed: 02/26/2020 Page: 2 of 7
corresponding sentence. The District Court held that Crawford’s argument that
§ 924(c)(3) is unconstitutionally vague was foreclosed by our decision in Ovalles.1
We reject that argument and affirm the District Court’s judgment on alternative
grounds.
I.
In 2013, Crawford pled guilty to three counts of Hobbs Act robbery, in
violation of 18 U.S.C. § 1951(a), and one count of possession of a firearm in
furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c). Section
924(c) provides for a mandatory consecutive sentence for any defendant who uses
or carries a firearm during and in relation to, or possesses a firearm in furtherance
of, either a “crime of violence” or a “drug trafficking crime.” 18 U.S.C. §
924(c)(1)(A).
The statute defines a “crime of violence” as a felony offense 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.
18 U.S.C.A. § 924(c)(3). We refer to § 924(c)(3)(A) as the elements clause and
§ 924(c)(3)(B) as the residual clause.
1 Ovalles v. United States, 861 F.3d 1257, 1263–67 (11th Cir. 2017), vacated on reh’g en banc, 905 F.3d 1356 (2018). 2 Case: 18-11040 Date Filed: 02/26/2020 Page: 3 of 7
In 2015, the Supreme Court decided Johnson v. United States, 135 S. Ct.
2551 (2015), holding that a similar residual clause in the Armed Career Criminal
Act of 1984 is unconstitutionally vague. Crawford then filed a § 2255 motion to
vacate. He argued that, in light of Johnson, § 924(c)’s residual clause is
unconstitutionally vague. He also argued that his conviction for substantive Hobbs
Act robbery did not qualify as a crime of violence under the elements clause
because it could be accomplished without physical force.
The District Court denied Crawford’s motion. Specifically, it held that
Crawford’s argument about the residual clause was “squarely foreclosed by the
Eleventh Circuit’s decision in Ovalles.” Because the felony qualified under the
residual clause, the District Court concluded that it “need not address [Crawford’s]
second argument – that Hobbs Act robbery does not qualify as a crime of violence
under the [elements] clause.”
In 2018, we granted Crawford a certificate of appealability (“COA”) on one
issue only:
Whether the Supreme Court’s decision in Sessions v. Dimaya, No. 15- 1498, manuscript op. at 24-25 (Apr. 17, 2018), undermines this Court’s holding in Ovalles v. United States, 86[1] F.3d 1258, 1263-67 (11th Cir. 2017), that the [residual] clause in 18 U.S.C. § 924(c)(3)(B) is not unconstitutionally vague.
That issue has since been decided by the Supreme Court. In United States v.
Davis, 139 S. Ct. 2319 (2019), the Supreme Court held that the residual clause,
3 Case: 18-11040 Date Filed: 02/26/2020 Page: 4 of 7
§ 924(c)(3)(B), is unconstitutionally vague. Davis thus abrogated our decision in
Ovalles.
Crawford subsequently filed his opening brief with us, answering the
question in the COA in the affirmative and requesting remand to the District Court.
The government moved for summary affirmance, contending that Crawford’s
substantive Hobbs Acts offense qualifies as a crime of violence under the elements
clause and that this Court can summarily affirm the District Court on any basis
supported by the record. Crawford objects that this issue is outside the COA and
that the District Court did not address this issue. We directed the parties to file
supplemental letter briefs on whether the COA should be expanded and on the
merits issue. We now affirm.
II.
The COA is a jurisdictional prerequisite: an appeal cannot be taken to this
Court without it. 28 U.S.C. § 2253(c)(1) (“Unless a circuit justice or judge issues a
certificate of appealability, an appeal may not be taken to the court of appeals . .
.”); Gonzalez v. Thaler, 565 U.S. 134, 142, 132 S. Ct. 641, 649 (2012). A judge
can issue a COA only if the applicant “has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The COA must also
specify which issue or issues satisfy that showing. Id. § 2253(c)(3). But while
4 Case: 18-11040 Date Filed: 02/26/2020 Page: 5 of 7
“failure to obtain a COA is jurisdictional,” “a COA’s failure to indicate an issue is
not.” Gonzalez, 565 U.S. at 143, 132 S. Ct. at 649.
Although the specification requirement is not jurisdictional, we are still
bound by the clear text enacted by Congress. Spencer v. United States, 773 F.3d
1132, 1138 (11th Cir. 2014) (en banc). We cannot act in contradiction to the
statutory requirements. Id. As such, we have repeatedly held that “the scope of
our review of an unsuccessful § 2255 motion is limited to the issues enumerated in
the COA.” McKay v. United States, 657 F.3d 1190, 1195 (11th Cir. 2011); see
also Murray v. United States, 145 F.3d 1249, 1251 (11th Cir. 1998). Normally,
this limitation means that we disregard arguments raised by an appellant that are
outside the issues specified in the COA. See, e.g., Hodges v. Att’y Gen., 506 F.3d
1337, 1341 (11th Cir. 2007); Murray, 145 F.3d at 1251.
Here, however, the government requests that we consider—and summarily
affirm—on an issue not specified in the COA. The government points to the
Supreme Court’s decision Jennings v. Stephens, 574 U.S. 271, 135 S. Ct. 793, 796
(2015), arguing that we can affirm on any basis supported by the record.
In Jennings, the Supreme Court considered whether a petitioner-appellee
could defend his writ of habeas corpus on a theory that the District Court had
rejected without taking a cross-appeal or obtaining a COA. 574 U.S. at 271, 135 S.
Ct. at 796. The Court determined that the gate-keeping function of a COA applies
5 Case: 18-11040 Date Filed: 02/26/2020 Page: 6 of 7
only when “tak[ing] an appeal”; it does not apply when defending a judgment on
alternative grounds. Id. at 802. Therefore, no COA is required for the government
to defend the district court’s judgment on alternative grounds. 2 Because the
government seeks only to affirm the judgment of the District Court below, we can
consider arguments in defense of that judgment. 3
Satisfied that we can consider the issue, we turn now to whether Crawford’s
Hobbs Act robbery qualifies as a crime of violence under the use-of-force clause.
We review de novo whether an offense qualifies as a “crime of violence.” Brown,
942 F.3d at 1072.
We use a categorical approach to assess whether an offense constitutes a
“crime of violence” under the elements clause. Id. (citing United States v. St.
2 We have followed this practice in unpublished decisions. See, e.g., Williams v. United States, 785 F. App’x 710, 712 (11th Cir. 2019); Caison v. Sec’y, Dep’t of Corr., 766 F. App’x 870, 874 n.1 (11th Cir. 2019). 3 We asked the parties to brief the effect of Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992) (en banc), on our ability to affirm on a ground that the District Court did not decide. Clisby held that a district court must resolve all claims for relief in a habeas motion, regardless of whether relief is granted or denied. 960 F.2d at 935–36, 938; Rhode v. United States, 583 F.3d 1289, 1291 (11th Cir. 2009) (extending Clisby to § 2255 motions). We cannot consider a claim that a district court has not resolved in the first instance and instead, “will vacate the district court’s judgment without prejudice and remand the case for consideration of all remaining claims.” Clisby, 960 F.2d at 938. A claim is “any allegation of a constitutional violation.” Id. at 936. Here, however, Crawford has only one claim—that his conviction for Hobbs Act Robbery does not qualify as a crime of violence under § 924(c). We can consider other arguments in defense of the judgment on that claim. 6 Case: 18-11040 Date Filed: 02/26/2020 Page: 7 of 7
Hubert, 909 F.3d 335, 348–49 (11th Cir. 2018)). “[W]e look to whether the
statutory elements of the predicate offense necessarily require, at a minimum, the
threatened or attempted use of force.” Id. We assume that the conviction rests
upon the least of the acts criminalized, and then determine whether those acts
qualify as a crime of violence. Moncrieffe v. Holder, 569 U.S. 184, 191, 133 S. Ct.
1678, 1684 (2013). The specific circumstances of the actual offense are irrelevant;
the “inquiry begins and ends with the elements of the crime.” Brown, 942 F.3d at
1075.
We have repeatedly held—and Crawford concedes—that substantive Hobbs
Act robbery qualifies as a crime of violence under the elements clause of
§ 924(c)(3)(A). See St. Hubert, 909 F.3d at 348; In Re Saint Fleur, 824 F.3d 1337
(11th Cir. 2016). Therefore, the government’s motion for summary affirmance is
granted.
AFFIRMED.