           Case: 16-16188   Date Filed: 10/10/2017   Page: 1 of 4


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 16-16188
                         Non-Argument Calendar
                       ________________________

               D.C. Docket Nos. 8:16-cv-01645-CEH-AAS,
                      8:14-cr-00165-CEH-AAS-2


ERSKINE JAMES MCKINLEY,

                                              Petitioner - Appellant,

versus

UNITED STATES OF AMERICA,

                                              Respondent - Appellee.

                       ________________________

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

                            (October 10, 2017)

Before TJOFLAT, MARCUS, and JORDAN, Circuit Judges.

PER CURIAM:
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      Erskine McKinley, a federal prisoner, appeals the district court’s order

denying his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence.

Because our precedent forecloses his arguments on appeal, we affirm.

      In June of 2014, Mr. McKinley pled guilty to one count of bank robbery, in

violation of 18 U.S.C. § 2113(a), and one count of brandishing a firearm in relation

to a crime of violence, in violation of § 924(c)(1)(A)(ii). The district court varied

below the advisory guidelines range, and imposed a sentence of 116 months’

imprisonment for the bank robbery count, to be followed by 84 months’

imprisonment for the firearm count.1

      Mr. McKinley did not appeal his conviction or sentence, and his conviction

became final in October of 2014. He then filed an initial § 2255 petition in June of

2016. The district court denied that petition, but later granted him a certificate of

appealability on one issue: “whether Johnson v. United States, 135 S. Ct. 2551

(2015) extends to the residual clause under 18 U.S.C. § 924(c), and if so, whether

bank robbery under 18 U.S.C. § 2113(a) qualifies as a ‘crime of violence’ under 18

U.S.C. § 924(c)’s force clause.” D.E. 9.




1
  Based on a total offense level of 29 and a criminal history category of VI, the advisory
guidelines range was 188 to 235 months’ imprisonment. Because § 924(c)(1)(A)(ii) requires a
mandatory minimum of 84 months’ imprisonment to run consecutively to any other term of
imprisonment and Mr. McKinley qualified as a career offender under U.S.S.G. §§ 4B1.1(c)(3)
and 5G1.2(e), his adjusted guidelines range was 262 to 327 months’ imprisonment.
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      We review de novo whether a defendant’s prior conviction qualifies as a

crime of violence under 18 U.S.C. § 924(c). See United States v. McGuire, 706

F.3d 1333, 1336 (11th Cir. 2013).

      Mr. McKinley contends that his conviction for brandishing a firearm during

a crime of violence under § 924(c) violated his due process rights because the

residual (or risk-of-force) clause under § 924(c)(3)(B) is unconstitutionally vague

under Johnson, 135 S. Ct. at 2557–2558, 2563 (striking down the residual clause of

the Armed Career Criminal Act as unconstitutionally vague). In June of 2017, we

recently considered that argument and held that Johnson “does not apply to or

invalidate” the risk-of-force clause under § 924(c)(3)(B). Ovalles v. United States,

861 F.3d 1257, 1263–65 (11th Cir. 2017). Mr. McKinley’s argument is therefore

foreclosed by circuit precedent.

      Mr. McKinley also argues that his bank robbery offense does not qualify as

a crime of violence under § 924(c)’s use-of-force clause because it “may be

committed by ‘force and violence’ or by ‘intimidation.’” Appellant’s Br. at 3.

That argument, however, is also foreclosed by circuit precedent. See In re Sams,

830 F.3d 1234, 1239 (11th Cir. 2016) (holding that “a bank robbery conviction

under § 2113(a) by force and violence or by intimidation qualifies as a crime of

violence under the § 924(c)(3)(A) use-of-force clause”).

      We affirm Mr. McKinley’s conviction under § 924(c).


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AFFIRMED.




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