           Case: 16-16566   Date Filed: 07/25/2017   Page: 1 of 11


                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-16566
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket Nos. 1:16-cv-00446-CB,
                         1:98-cr-00099-KD-S-3



CORNELIUS KENYATTA CRAIG,
a.k.a. Douglas Buster,

                                                           Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                         Respondent-Appellee.

                       ________________________

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

                              (July 25, 2017)

Before HULL, WILSON, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Appellant Cornelius Craig appeals the district court’s denial of his motion to

vacate, set aside, or correct his sentence filed pursuant to 28 U.S.C. § 2255. On

appeal, Craig challenges the district court’s determination that his conviction for

carjacking qualifies as a crime of violence under 18 U.S.C. § 924(c)(3). After

careful review, we affirm.

I.    BACKGROUND

      In June 1998, a federal grand jury issued an indictment against Craig and

several codefendants, charging Craig specifically with: three counts of conspiracy

to commit carjacking, in violation of 18 U.S.C. § 371 (Counts 1, 4, and 7); three

counts of carjacking, in violation of 18 U.S.C. §§ 2119 and 2 (Counts 2, 5, and 8);

and three counts of using a firearm during and in relation to a crime of violence, in

violation of 18 U.S.C. §§ 924(c) and 2 (Counts 3, 6, and 9). The § 924(c) counts

alleged that the firearm was used during the robbery of an automobile, in violation

of § 2119.

      Two months later, in August 1998, Craig and two others were charged with:

one count of conspiracy to commit carjacking, in violation of § 371 (Count 1);

carjacking, in violation of §§ 2119 and 2 (Count 2); and using and carrying a

firearm during and in relation to a crime of violence, in violation of §§ 924(c) and

2 (Count 3). The indictment stated that the offense underlying the § 924(c) count

was robbery of an automobile, in violation of § 2119.


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      Both indictments were consolidated for trial. A jury returned a guilty verdict

on all counts and the district court sentenced Craig to 931 months’ imprisonment.

This Court affirmed on appeal.

      In 2001, Craig filed a § 2255 motion, arguing in relevant part that his

§ 924(c) convictions were unconstitutional because the indictment was defective as

to those charges. The district court denied the motion.

      In July 2016, Craig filed an application for leave to file a second or

successive motion to vacate in July 2016. In his application, he relied on the

Supreme Court’s decisions in Johnson v. United States, 135 S. Ct. 2552 (2015), in

which the Supreme Court held that the residual clause of the Armed Career

Criminal Act (“ACCA”), 18 U.S.C. § 924(e), was unconstitutionally vague, and

Welch v. United States, 136 S. Ct. 1257 (2016), which applied Johnson

retroactively to cases on collateral review. In light of Johnson, Craig argued that

§ 924(c)(3)(B)’s nearly identical risk-of-force clause was also void for vagueness,

and therefore his § 924(c) convictions were unconstitutional.

      We granted Craig’s application for leave to file a second or successive

§ 2255 motion. We explained that we had denied applications for leave to file a

second or successive § 2255 motion where the applicant’s § 924(c) companion

conviction qualified as a crime of violence under § 924(c)(3)(A)’s use-of-force

clause. However, we had determined that an applicant made a prima facie


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showing that his claim implicated Johnson where the record indicated that the

applicant’s companion conviction was based on conspiracy to commit Hobbs Act

robbery and it was not clear whether Johnson invalidated that § 924(c) conviction

and sentence. We concluded that although Craig’s § 924(c) convictions in case

number 98-cv-00099 were clearly based on his carjacking convictions, he had

made a prima facie showing that he was entitled to file a second or successive

§ 2255 motion with respect to his § 924(c) conviction in case number 98-cv-00158.

This was so because it was not clear which conviction served as the basis for that

offense: carjacking or conspiracy to commit carjacking.

      Having received this Court’s permission, Craig filed a § 2255 motion in the

district court in August 2017. He argued that carjacking was not a crime of

violence under § 924(c)(3)(A)’s use-of-force clause because it did not have as an

element the use, attempted use, or threatened use of physical force against the

person or property of another. He also argued that conspiracy to commit

carjacking did not qualify as a crime of violence. Finally, he asserted that the risk-

of-force clause under § 924(c) was unconstitutional.

      The district court denied Craig’s § 2255 motion. The district court

determined that the indictment and jury instructions made clear that Craig’s

§ 924(c) conviction in case number 98-cr-00158 was based on his carjacking

conviction, not conspiracy to commit carjacking. Moreover, Craig’s argument that


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his carjacking conviction was not a crime of violence under the use-of-force clause

of § 924(c)(3)(A) was foreclosed by this Court’s decision in In re Smith, 829 F.3d

1276, 1280 (11th Cir. 2016). Nevertheless, based on the dissenting opinion in In

re Smith, the district court concluded that the issue of whether carjacking

constituted a crime of violence was debatable among jurists of reason, and thus the

district court granted Craig a certificate of appealability on that issue. This appeal

followed.

II.    DISCUSSION

       Craig argues that carjacking does not qualify as a crime of violence under

§ 924(c)(3) because (1) carjacking does not meet the requirements of

§ 924(c)(3)(A)’s use-of-force clause 1 and (2) Johnson invalidated § 924(c)(3)(B)’s

risk-of-force clause.

       We review the legal issues pertaining to a § 2255 proceeding de novo and

factual findings for clear error. Lynn v. United States, 365 F.3d 1225, 1232 (11th

Cir. 2004). The Supreme Court’s decision in Johnson did not address the statute

under which Craig was convicted. Johnson instead addressed the ACCA, which

provides that a person who violates 18 U.S.C. § 922(g) and has three prior

convictions for a violent felony or serious drug offense is subject to a 15-year

1
  Craig’s argument that carjacking does not qualify as a crime of violence under
§ 924(c)(3)(A)’s use-of-force clause is arguably untimely under § 2255(f), as this claim is not
premised on the newly recognized right established by the Supreme Court in Johnson.


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mandatory minimum sentence. 18 U.S.C. § 924(e)(1). The statute defines the

term violent felony as any crime that carries an imprisonment sentence of more

than 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 use of explosives, or
      otherwise involves conduct that presents a serious potential risk of
      physical injury to another.

18 U.S.C. § 924(e)(2)(B). “The first prong of this definition is referred to as the

‘elements clause,’ while the second prong contains the ‘enumerated crimes’ and,

finally, what is commonly called the ‘residual clause.’” United States v. Ovalles, --

F.3d --, case no. 17-10172, manuscript op. at 11 (11th Cir. June 30, 2017). In

Johnson, the Supreme Court struck down the residual clause as unconstitutionally

vague. Johnson, 135 S. Ct. at 2563.

      The present case involves Craig’s conviction under 18 U.S.C. § 924(c). A

person violates § 924(c) by using or carrying a firearm during and in relation to, or

by possessing a firearm in furtherance of, a drug trafficking crime or a crime of

violence. 18 U.S.C. § 924(c)(1)(A). The sentence imposed under § 924(c) must be

served consecutively to any other sentence imposed. Id. § 924(c)(1)(A),

(c)(1)(D)(ii).

       For purposes of § 924(c), the term crime of violence is defined as any felony

offense that:
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            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. § 924(c)(3). The former clause is often referred to as the “use-of-force”

clause or the “elements clause” and the latter clause is referred to as “risk-of-force”

clause. Ovalles, manuscript op. at 12 (explaining that although the latter clause is

often referred to as the residual clause, the name “risk-of-force” clause is more

appropriate); In re Smith, 829 F.3d 1276, 1279–80 (11th Cir. 2016); In re Saint

Fleur, 824 F.3d 1337, 1339 (11th Cir. 2016).

      We recently held that the Supreme Court’s void-for-vagueness ruling in

Johnson does not invalidate § 924(c)(3)(B)’s risk-of-force clause. Ovalles,

manuscript op. at 17. In doing so, we joined the Second, Sixth, and Eighth

Circuits, all of which have held that Johnson does not apply to § 924(c)(3)(B). Id.

at 17, 20. We agreed with the reasoning of those courts that the “significant

differences” between the ACCA’s residual clause and the risk-of-force clause

under § 924(c)(3)(B) make § 924(c)’s crime-of-violence definition more narrow

than the definition of violent felony under the ACCA. See Ovalles, manuscript op.

at 13–14, 17 (quoting United States v. Taylor, 814 F.3d 340, 376–77 (6th Cir.

2016)). We also agreed that unlike § 924(c), where courts are generally tasked

with “considering contemporaneous predicate federal crimes, often charged in the
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same federal indictment,” the ACCA requires federal courts to consider a

defendant’s prior crimes, which are often unrelated to, and remote from, the instant

§ 922(g) firearm offense. Id. at 14–15.

      We also emphasized the functional differences between § 924(c) and the

ACCA, explaining that the ACCA is a recidivist sentencing enhancement and does

not require a nexus between the § 922(g) firearm offense and the predicate violent

felony. Id. Section 924(c), in contrast, requires a nexus between the § 924(c)

firearm offense and the predicate crime of violence. Id. at 17–18. Further, section

924(c) has not presented the same interpretative difficulties as the ACCA’s

residual clause because: (1) section 924(c)’s requirement that the “use” of

“physical force” be used against the person or property of another in the course of

committing the offense is focused on whether the defendant himself uses force

while committing the offense, rather than on whether the defendant’s actions may

produce a potential risk of physical injury; (2) section 924(c)’s requirement that the

risk occur while the defendant is committing the offense places a temporal

restriction on the potential scope of the risk; and (3) section 924(c)(3)(B) does not

contain the list of enumerated crimes that preceded the ACCA’s residual clause

and therefore does not require courts to figure out the amount of risk necessary to

meet the statute. Id. at 18–20.




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       As an initial matter, the district court did not err by concluding that

carjacking was the companion conviction underlying Craig’s § 924(c) conviction

in case number 98-cr-00158.2 The indictment clearly states that the crime of

violence underlying Craig’s § 924(c) conviction was robbery of an automobile, in

violation of 18 U.S.C. § 2119. Therefore, the district court properly determined

that Craig’s § 924(c) conviction was based on carjacking.

       Further, Craig’s argument that Johnson invalidated § 924(c)(3)(B)’s risk-of-

force clause is foreclosed by our decision in Ovalles. Craig’s sole argument

pertaining to the risk-of-force clause is that it is unconstitutionally vague. He has

not challenged whether his carjacking conviction qualifies as a crime of violence

under that clause. Because Johnson does not render § 924(c)(3)(B)’s risk-of-force

clause unconstitutionally vague, the district court did not err by denying Craig’s

§ 2255 motion. See Castillo v. United States, 816 F.3d 1300, 1303 (11th Cir.

2016) (“We may affirm on any ground supported by the record.” (quotations

omitted)).

       But regardless, even if Johnson did invalidate § 924(c)(3)(B)’s risk-of-force

clause, we would nevertheless affirm the district court’s denial of Craig’s § 2255

motion because his carjacking conviction qualifies as a crime of violence under
2
  Only Craig’s § 924(c) conviction in case number 98-cr-00158 is at issue here. In granting
Craig’s application to file a second or successive § 2255 motion, we explained that it was clear
that his § 924(c) convictions in case number 98-cr-00099 were based on his carjacking
convictions.


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§ 924(c)(3)(A)’s use-of-force clause. See Ovalles, manuscript op. at 22–26

(upholding the denial of prisoner’s § 2255 motion on the independent and

alternative ground that, even if Johnson invalidated the risk-of-force clause,

attempted carjacking qualified as a crime of violence under § 924(c)(3)(A)’s use-

of-force clause). A person commits the federal offense of carjacking when he,

“with the intent to cause death or serious bodily harm takes a motor vehicle that

has been transported, shipped, or received in interstate or foreign commerce from

the person or presence of another by force and violence or by intimidation, or

attempts to do so.” 18 U.S.C. § 2119.

       We have held that the offense of carjacking under § 2119 qualifies as a

crime of violence under § 924(c)(3)(A)’s use-of-force clause.3 Indeed, in In re

Smith, a case involving an application for leave to file a second or successive

§ 2255 motion, we relied on our prior precedent in United States v. Moore, 43 F.3d

568 (11th Cir. 1995), to hold that carjacking under § 2119 qualifies as a crime of

violence under § 924(c)(3)(A)’s use-of-force clause. In re Smith, 829 F.3d at 1280.

In doing so, we explained that “an element requiring that one take or attempt to

take by force and violence or by intimidation . . . satisfies the force clause of

§ 924(c), which requires the use, attempted use, or threatened use of physical
3
  We note that other circuits have similarly held that a conviction under the federal carjacking
statute—18 U.S.C. § 2119—qualifies as a crime of violence under § 924(c)(3)(A)’s use-of-force
clause. See United States v. Jones, 854 F.3d 737, 740–41 (5th Cir. 2017); United States v.
Evans, 848 F.3d 242, 246–48 (4th Cir. 2017).


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force.” Id. Under the prior precedent rule, “we are bound to follow a prior binding

precedent unless and until it is overruled by this court en banc or by the Supreme

Court.” United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008)

(quotations omitted).

      Based on the foregoing discussion, the district court did not err by denying

Craig’s § 2255 motion.

      AFFIRMED.




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