United States v. Marcos Henderson

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 7, 2020
• Docket: 17-15464
• Status: Unpublished

Opinion

Case: 17-15464 Date Filed: 01/07/2020 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-15464 Non-Argument Calendar ________________________

D.C. Docket No. 4:17-cr-00015-CDL-MSH-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARCOS HENDERSON,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Middle District of Georgia ________________________

(January 7, 2020)

Before WILLIAM PRYOR, JILL PRYOR, and NEWSOM, Circuit Judges.

PER CURIAM: Case: 17-15464 Date Filed: 01/07/2020 Page: 2 of 5

Marcos Henderson is a federal prisoner serving a total sentence of 152-

months’ imprisonment. In 2017, Henderson pleaded guilty to four counts: two

counts of Hobbs Act robbery in violation of 18 U.S.C. § 1951 (Counts 1 and 2),

one count of possession of a firearm in furtherance of a crime of violence

(specifically, the Hobbs Act robbery underlying the second count) in violation of

18 U.S.C. § 924(c)(1)(A)(i) (Count 3), and one count of possession of a firearm by

a convicted felon in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (Count 4).

Henderson now appeals the district court’s denial of his motion to dismiss the

§ 924(c) count—possession of a firearm in furtherance of a crime of violence.1

Relying on the Supreme Court’s recent decision in United States v. Davis, 139 S.

Ct. 2319 (2019), Henderson argues that Hobbs Act robbery is not a crime of

violence under § 924(c) and that the district court therefore abused its discretion

when it denied his motion to dismiss.

We affirm. As this Circuit has previously recognized, Henderson’s

predicate offense of Hobbes Act robbery qualifies as a crime of violence under the

use-of-force clause in § 924(c)(3)(A). Thus, although the Davis Court invalidated

the residual clause in § 924(c)(3)(B), Henderson’s conviction remains valid.

1 In his plea agreement, Henderson retained the right to appeal the district court’s denial of his motion to dismiss. 2 Case: 17-15464 Date Filed: 01/07/2020 Page: 3 of 5

I

We review the denial of a motion to dismiss a charge in an indictment for

abuse of discretion. United States v. Pendergraft, 297 F.3d 1198, 1204 (11th Cir.

2002) (citation omitted). A district court abuses its discretion when it makes an

error of law. United States v. Hill, 643 F.3d 807, 874 (11th Cir. 2011) (citations

omitted). Whether an offense qualifies as a crime of violence under § 924(c) is a

question of law. United States v. McGuire, 706 F.3d 1333, 1336 (11th Cir. 2013),

overruled in part on other grounds by Ovalles v. United States, 905 F.3d 1231,

1234 (11th Cir. 2018) (en banc), cert. denied, 139 S. Ct. 2716 (2019), and

abrogated by Davis, 139 S. Ct. at 2336.

Section 924(c) of Title 18 of the United States Code criminalizes the use or

carrying of a firearm in furtherance of a crime of violence or drug-trafficking

crime. 18 U.S.C. § 924(c). “Crime of violence” is defined 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, 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).

Subsection (A) is known as the “use-of-force” clause while subsection (B) is

known as the “residual” clause. In re Fleur, 824 F.3d 1337, 1339 (11th Cir. 2016). 3 Case: 17-15464 Date Filed: 01/07/2020 Page: 4 of 5

In Davis, the Supreme Court extended its holdings in Johnson v United States, 135

S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018), to § 924(c)

and held that § 924(c)(3)(B)’s residual clause, like the residual clauses in the

Armed Career Criminal Act and 18 U.S.C. § 16(b), is unconstitutionally vague.

Davis, 139 S. Ct. at 2325–27, 2336.

II

Henderson argues that his § 924(c) conviction is invalid because the district

court held that his § 924(c) predicate offense—the Hobbs Act robbery in Count

2—qualified as a “crime of violence” under § 924(c)(3)(B)’s now-void residual

clause. The problem with this argument is that, although the district court did hold

that Hobbs Act robbery is a “crime of violence” under § 924(c)(3)(B)’s now-void

residual clause, it alternatively held that Hobbs Act robbery is a “crime of

violence” under § 924(c)(3)(A)’s use-of-force clause. See Dist. Ct. Order Denying

Mot. to Dismiss at 8. And Davis left § 924(c)(3)(A)’s use-of-force clause

untouched. See 139 S. Ct. at 2336.

As he must, therefore, Henderson also attempts to argue that the district

court erred when it concluded that Hobbs Act robbery constitutes a “crime of

violence” under § 924(c)(3)(A)’s use-of-force clause. The problem here is that

binding circuit precedent is to the contrary. We have held that a “conviction for

Hobbs Act robbery . . . clearly qualifies as a ‘crime of violence’ under the use-of-

4 Case: 17-15464 Date Filed: 01/07/2020 Page: 5 of 5

force clause in § 924(c)(3)(A).” In re Fleur, 824 F.3d at 1340; see also In re

Cannon, 931 F.3d 1236, 1242 (11th Cir. 2019) (holding, post-Davis, that Hobbs

Act robbery qualifies as a crime of violence under the use-of-force clause in

§ 924(c)(3)(A)); United States v. St. Hubert, 909 F.3d 335, 349 (11th Cir. 2018)

(“Hobbs Act robbery is categorically a crime of violence under the use-of-force

clause in § 924(c)(3)(A).”), petition for cert. filed, No. 19-5267 (2019). Thus,

despite Davis’s holding that § 924(c)(3)(B)’s residual clause is unconstitutionally

vague, Henderson’s § 924(c) conviction remains valid.

III

Based on the foregoing, we hold that the district court’s decision denying

Henderson’s motion to dismiss is AFFIRMED.