United States v. Jhirmack Wiles

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 30, 2018
• Docket: 17-13409
• Status: Unpublished

Opinion

Case: 17-12671 Date Filed: 04/30/2018 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

Nos. 17-12671, 17-13409 Non-Argument Calendar ________________________

D.C. Docket No. 1:16-cr-20195-UU-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JHIRMACK WILES,

Defendant-Appellant.

________________________

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

(April 30, 2018)

Before TJOFLAT, ROSENBAUM, and NEWSOM, Circuit Judges.

PER CURIAM:

In these consolidated appeals, Jhirmack Wiles appeals his convictions after

pleading guilty to two counts of brandishing a firearm in furtherance of a crime of Case: 17-12671 Date Filed: 04/30/2018 Page: 2 of 4

violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The sole substantive issue

he raises on appeal is whether Hobbs Act robbery, 18 U.S.C. § 1951(a), is a “crime

of violence” for purposes of § 924(c).1 Wiles maintains that it is not because it

does not meet the definition of a crime of violence under the use-of-force clause in

§ 924(c)(3)(A), and because the risk-of-force or residual clause in § 924(c)(3)(B) is

unconstitutionally vague, in light of Johnson v. United States, 135 S. Ct. 2551

(2015). We affirm.

Section 924(c)(1)(A) provides for a separate consecutive sentence if any

person uses or carries a firearm during and in relation to a crime of violence, or

possesses a firearm in furtherance of such a crime. 18 U.S.C. § 924(c)(1)(A). For

purposes of § 924(c), a “crime of violence” is defined as an offense that is a felony

and

(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). Section 924(c)(3)(A) is commonly referred to as the use-of-force

clause, while § 924(c)(3)(B) is commonly referred to as the risk-of-force or

residual clause. United States v. St. Hubert, 883 F.3d 1319, 1327 (11th Cir. 2018).

1 Wiles also argues that the sentence-appeal waiver in his plea agreement does not bar his appeal, but the government does not seek to enforce the waiver or otherwise contest our authority to decide the issue raised. 2 Case: 17-12671 Date Filed: 04/30/2018 Page: 3 of 4

After Wiles filed his brief with this Court, we held in St. Hubert that Hobbs

Act robbery constitutes a crime of violence under § 924(c)(3)(A)’s use-of-force

clause. St. Hubert, 883 F.3d at 1328–29. Further, we rejected the argument that

the Supreme Court’s decision in Johnson invalidated the similarly worded clause

in § 924(c)(3)(B). Id. at 1327–28. We stated that, in Ovalles v. United States, 861

F.3d 1247 (11th Cir. 2017), we had already ruled that Johnson did not invalidate

§ 924(c)(3)(B), and we found we were bound to follow Ovalles. Id. at 1328. We

further concluded that, regardless of the Supreme Court’s ruling in Sessions v.

Dimaya, No. 15-1498 (U.S., argued Oct. 2, 2017), involving the residual clause in

18 U.S.C. § 16(B), that ruling would not undermine Ovalles because Dimaya

concerned a different substantive section than § 924(c)(3)(B), as well as different

analytical frameworks. See id. at 1336–37.

Here, Wiles’s arguments are foreclosed by binding precedent. See United

States v. Brown, 342 F.3d 1245, 1246 (11th Cir. 2003) (stating that we are bound

by our prior decisions unless and until they are overruled by the Supreme Court or

this Court en banc). We are bound by St. Hubert’s holding that Hobbs Act robbery

qualifies as a crime of violence under the use-of-force clause in § 924(c)(3)(A).

And Wiles’s contention that the risk-of-force clause in § 924(c)(3)(B) is

unconstitutionally vague is foreclosed by Ovalles, notwithstanding Dimaya.

Accordingly, we affirm Wiles’s convictions.

3 Case: 17-12671 Date Filed: 04/30/2018 Page: 4 of 4

AFFIRMED.