              Case: 19-12441     Date Filed: 03/27/2020   Page: 1 of 4



                                                              [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 19-12441
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 1:18-cr-20811-RNS-2


UNITED STATES OF AMERICA,

                                                                Plaintiff - Appellee,

                                       versus

ERNESTO RODRIGUEZ,

                                                             Defendant - Appellant.

                           ________________________

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

                                 (March 27, 2020)

Before ROSENBAUM, NEWSOM, and HULL, Circuit Judges.

PER CURIAM:

      After pleading guilty, Ernesto Rodriguez was convicted of carjacking, in

violation of 18 U.S.C. § 2119, and of brandishing a firearm in furtherance of a crime
                Case: 19-12441        Date Filed: 03/27/2020      Page: 2 of 4



of violence, that is, carjacking, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). He now

appeals the § 924(c) conviction, arguing that federal carjacking does not qualify as

a predicate crime of violence. The government, asserting that this argument is

foreclosed by circuit precedent, moves for summary affirmance.1 We grant the

government’s motion.

       Summary disposition is appropriate where “the position of one of the parties

is clearly right as a matter of law so that there can be no substantial question as to

the outcome of the case, or where, as is more frequently the case, the appeal is

frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969)2;

see also Brown v. United States, 942 F.3d 1069, 1076 n.6 (11th Cir. 2019).

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

person uses or carries a firearm during the commission of a drug-trafficking crime

or a crime of violence. 18 U.S.C. § 924(c)(1)(A). Section § 924(c) goes on to define

“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.

       1
        The government does not seek to enforce the appeal waiver in Rodriguez’s plea
agreement, so we do not address Rodriguez’s argument that the appeal waiver is unenforceable.
       2
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court
adopted as binding precedent all Fifth Circuit decisions issued before October 1, 1981.

                                               2
                 Case: 19-12441        Date Filed: 03/27/2020       Page: 3 of 4




Id. § 924(c)(3). Section 924(c)(3)(A) is often referred to as the elements clause,

while § 924(c)(3)(B) is often referred to as the residual clause. In re Smith, 829 F.3d

1276, 1278–79 (11th Cir. 2016). Recently, the Supreme Court invalidated the

residual clause as unconstitutionally vague. United States v. Davis, 588 U.S. ___,

139 S. Ct. 2319, 2336 (2019). That decision did not affect the elements clause. See

Steiner v. United States, 940 F.3d 1282, 1285 (11th Cir. 2019).

       As Rodriguez concedes, we have held that carjacking under § 2119 qualifies

as a crime of violence under § 924(c)’s elements clause. 3 In re Smith, 829 F.3d at

1280–81; United States v. Moore, 43 F.3d 568 (11th Cir. 1994); see also Ovalles v.

United States, 905 F.3d 1300, 1304 (11th Cir. 2018) (“Moore and In re Smith

correctly held that a § 2119 carjacking offense categorically qualifies under

§ 924(c)(3)(A)’s elements clause.”), abrogated on other grounds by Davis, 139 S.

Ct. 2319. As we have explained, “an element requiring that one take or attempt to

take by force and violence or by intimidation, which is what the federal carjacking




       3
          Other circuits similarly have held that carjacking qualifies under § 924(c)(3)(A)’s
elements clause. See United States v. Jackson, 918 F.3d 467, 484-86 (6th Cir. 2019) (holding
federal carjacking under § 2119 categorically qualifies as a crime of violence under
§ 924(c)(3)(A)’s elements clause); United States v. Cruz-Rivera, 904 F.3d 63, 65-66 (1st Cir.
2018), cert. denied, 139 S. Ct. 1391 (2019); United States v. Gutierrez, 876 F.3d 1254, 1255-57
(9th Cir. 2017), cert. denied, 138 S. Ct. 1602 (2018); United States v. Jones, 854 F.3d 737, 740-
41 & n.2 (5th Cir.), cert. denied, 138 S. Ct. 242 (2017); United States v. Evans, 848 F.3d 242, 246-
48 (4th Cir.), cert. denied, 137 S. Ct. 2253 (2017).

                                                 3
              Case: 19-12441     Date Filed: 03/27/2020   Page: 4 of 4



statute does, satisfies the [elements] clause of § 924(c), which requires the use,

attempted use, or threatened use of physical force.” In re Smith, 829 F.3d at 1280.

      Rodriguez believes that our prior precedent is wrong because, in his view,

“intimidation” does not require the use or threatened use of physical force. But we

are bound by that precedent, see United States v. Archer, 531 F.3d 1347, 1352 (11th

Cir. 2008) (“[A] prior panel’s holding is binding on all subsequent panels unless and

until it is overruled or undermined to the point of abrogation by the Supreme Court

or by this court sitting en banc.”), which is unaffected by Davis. In In re Smith, we

held that carjacking qualified under the elements clause even after assuming that the

residual clause was invalid.     829 F.3d at 1280–81.       So Davis’s subsequent

determination that the residual clause is invalid, as we had assumed, in no way

affects that holding. See Steiner, 940 F.3d at 1285.

      Because the government’s position is clearly right as a matter of law, we

GRANT its motion for summary affirmance. See Groendyke Transp., 406 F.2d at

1162. Its motion to stay the briefing schedule is DENIED AS MOOT.




                                         4
