             Case: 16-13508    Date Filed: 01/10/2019   Page: 1 of 5


                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 16-13508
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket Nos. 0:16-cv-60929-WPD,
                            0:14-cr-30277-WPD-2


DANNY HERRERA,

                                                             Petitioner-Appellant,

                                     versus

UNITED STATES OF AMERICA,

                                                            Respondent-Appellee.

                          ________________________

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

                               (January 10, 2019)

Before WILSON, JILL PRYOR, and JULIE CARNES, Circuit Judges.

PER CURIAM:

      Danny Herrera pleaded guilty to possession of a firearm during a crime of

violence or drug-trafficking crime under 18 U.S.C. § 924(c), which was premised
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on conspiracy to commit Hobbs Act robbery under 18 U.S.C. § 1951. He now

appeals the district court’s denial of his motion to vacate his 60-month sentence

under 28 U.S.C. § 2255. Herrera argues that the district court erred in concluding

that the Supreme Court’s ruling in Johnson v. United States, 135 S. Ct. 2551

(2015), did not affect Herrera’s conviction under 18 U.S.C. § 924(c). The

government responds that Herrera’s appeal is barred by the sentence-appeal waiver

in Herrera’s plea agreement, and alternatively, that Herrera’s conviction is

unaffected by Johnson. After careful review, we affirm.


                                          I.


      We review the validity of a sentence-appeal waiver de novo. United States

v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). Plea agreements “are like

contracts,” and “[a]bsent some indication that the parties intended otherwise,” the

language of the agreement is given its “ordinary and natural meaning.” United

States v. Rubbo, 396 F.3d 1330, 1334 (11th Cir. 2005). Any ambiguities in the

agreement are resolved in favor of the defendant. United States v. Jeffries, 908

F.2d 1520, 1523 (11th Cir. 1990). The plain language of Herrera’s sentence-

appeal waiver did not include his right to collaterally attack his conviction and

sentence using 28 U.S.C. § 2255. As a result, the waiver does not foreclose this

collateral challenge to his conviction or sentence. Cf. Williams v. United States,


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396 F.3d 1340, 1341–42 (11th Cir. 2005) (holding that sentence-appeal waiver

applied to the defendant’s § 2255 claim at sentencing because the waiver expressly

included the defendant’s right to collaterally attack his sentence).


                                          II.


      In an appeal challenging the district court’s resolution of a § 2255 motion,

we review factual findings for clear error and legal issues de novo. Lynn v. United

States, 365 F.3d 1225, 1232 (11th Cir. 2004) (per curiam). Herrera argues that the

district court erred in concluding that his conviction under 18 U.S.C. § 924(c) is

unaffected by the Supreme Court’s ruling in Johnson. Johnson involved the

Armed Career Criminal Act (ACCA), which imposes a heightened sentence on a

defendant with three prior convictions for either “a violent felony or serious drug

offense.” See Johnson, 135 S. Ct. at 2557–58; 18 U.S.C. § 924(e)(1). The ACCA

defines “violent felony” as any crime, punishable by a term of imprisonment

exceeding one year, that:

      (i)    has as an element the use, attempted use, or threatened use of
             physical force against the person of another; or
      (ii)   is burglary, arson, or extortion, involves the use of explosives,
             or otherwise involves conduct that presents a serious potential
             risk of physical injury to another . . . .




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18 U.S.C. § 924(e)(2)(B). The first prong is the “elements clause.” See United

States v. Owens, 672 F.3d 966, 968 (11th Cir. 2012). The second prong contains

the “enumerated crimes” clause and the “residual clause.” See id.

      In Johnson, the Supreme Court held that the residual clause of the ACCA

was unconstitutionally vague. See 135 S. Ct. at 2557–58, 2563. Separate from §

924(e)’s residual clause at issue in Johnson, Herrera was convicted under § 924(c),

which imposes a mandatory consecutive sentence for a defendant who uses a

firearm during a “crime of violence” or “drug trafficking crime.” 18 U.S.C. §

924(c)(1). Section 924(c)(3) defines a “crime of violence” as any crime,

punishable by a term of imprisonment exceeding one year, 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.

      In this Court’s recent en banc decision in Ovalles v. United States, 905 F.3d

1231 (11th Cir. 2018) (en banc), we held that § 924(c)(3)(B)’s residual clause is

not unconstitutionally vague so long as the statute is interpreted to embody a

conduct-based approach that accounts for the actual, real-world facts of the

companion offense’s commission, as opposed to the categorical approach. Id. at

1253. Herrera concedes that conspiracy to commit Hobbs Act robbery is a crime




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of violence under § 924(c)(3)(B). See United States v. St. Hubert, 883 F.3d 1319,

1327–28 (11th Cir. 2018).

      Moreover, under Ovalles’ conduct-based approach, Herrera committed a

crime of violence. Herrera signed a written factual proffer in which he admitted to

conspiring to commit a home invasion robbery. The factual proffer also contained

details of the items uncovered after a search of the defendants and their vehicle,

including two loaded guns, ammunition, a ski mask, and zip ties. Like in Ovalles,

“[e]specially when layered on top of [Herrera’s] own admission to the overtly

violent charge” of conspiracy to commit Hobbs Act robbery and his concession on

appeal, the government’s factual proffer leads to the conclusion that Herrera

committed a “crime of violence” within the meaning of § 924(c)(3)(B). Herrera’s

argument that Johnson affects his conviction is thus foreclosed by Ovalles.

      AFFIRMED.




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