              Case: 19-14749    Date Filed: 07/10/2020   Page: 1 of 6



                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 19-14749
                            Non-Argument Calendar
                          ________________________

    D.C. Docket Nos. 1:16-cv-00514-MHT-CSC; 1:13-cr-00107-MHT-CSC-2

THRONE THOMAS SMILEY,

                                                              Petitioner-Appellant,

                                        versus

UNITED STATES OF AMERICA,

                                                             Respondent-Appellee.

                          ________________________

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

                                  (July 10, 2020)

Before JILL PRYOR, BRANCH and MARCUS, Circuit Judges.

PER CURIAM:

      Throne Smiley, a federal prisoner, appeals from the district court’s denial of

his 28 U.S.C. § 2255 motion to vacate. He argues that, in light of Johnson v. United

States, 135 S. Ct. 2551 (2015), and United States v. Davis, 139 S. Ct. 2319 (2019),
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his 18 U.S.C. § 924(c) conviction is unconstitutional because his underlying offense,

aiding and abetting attempted Hobbs Act robbery, no longer qualifies as a valid

predicate offense under § 924(c)’s elements clause. After careful review, we affirm.

      In a § 2255 proceeding, we review the district court’s factual findings for clear

error and the legal issues de novo. Lynn v. United States, 365 F.3d 1225, 1232 (11th

Cir. 2004). Under our prior-panel-precedent rule, “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 [C]ourt sitting en banc.” In re

Lambrix, 776 F.3d 789, 794 (11th Cir. 2015) (quotations omitted). The prior

precedent rule applies and binds a subsequent panel to its decision even if existing

Supreme Court precedent was overlooked or misinterpreted when the prior

precedent was issued. United States v. Fritts, 841 F.3d 937, 942 (11th Cir. 2016).

We’ve also held that the “law established in published three judge orders issued

pursuant to 28 U.S.C. § 2244(b) in the context of applications for leave to file second

or successive § 2255 motions is binding precedent on all subsequent panels of this

Court.” United States v. St. Hubert, 909 F.3d 335, 346 (11th Cir. 2018), cert. denied,

139 S. Ct. 1394 (2019), abrogated on other grounds by Davis, 139 S. Ct. at 2323.

      Under § 924(c), anyone who uses a firearm during a “crime of violence” or

“drug trafficking crime” shall receive an additional term of imprisonment, which




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may not run concurrently with any other term of imprisonment. 18 U.S.C. §

924(c)(1). A “crime of violence” means an offense that is a felony and:

      (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). We refer to § 924(c)(3)(A) as the “elements clause,” while §

924(c)(3)(B) is referred to as the “residual clause.” Ovalles v. United States, 905

F.3d 1231, 1234 (11th Cir. 2018) (en banc), abrogated on other grounds by Davis,

139 S. Ct. at 2323. In 2015, the Supreme Court in Johnson held that the residual

clause in the Armed Career Criminal Act (“ACCA”) was unconstitutionally vague,

135 S. Ct. at 2557-58, 2563, and in 2019, the Supreme Court in Davis likewise held

that § 924(c)(3)(B), which has language similar to the ACCA’s residual clause, was

unconstitutionally vague. 139 S. Ct. at 2323.

      To determine whether a predicate offense qualifies as a crime of violence

under § 924(c)’s elements clause, we apply the categorical approach, in which we

“presume that the conviction rested upon nothing more than the least of the acts

criminalized, and then determine whether even those acts qualify as crimes of

violence.” St. Hubert, 909 F.3d at 348-49 (quotations omitted). In In re Fleur, we

held that a conviction for Hobbs Act robbery has as an element the use, attempted

use, or threatened use of physical force and, therefore, categorically qualifies as a
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crime of violence under § 924(c)’s elements clause. 824 F.3d 1337, 1340 (11th Cir.

2016). Relying on this holding, in In re Colon, we held that, because an aider and

abettor is responsible for the acts of the principal, aiding and abetting Hobbs Act

robbery constitutes a crime of violence under § 924(c)’s elements clause. 826 F.3d

1301, 1305 (11th Cir. 2016). Similarly, in St. Hubert, we held that attempted Hobbs

Act robbery also categorically qualifies as a crime of violence under § 924’s

elements clause. 909 F.3d at 351.

      In Rosemond v. United States, the Supreme Court held that a defendant could

aid or abet a § 924(c) crime by facilitating either the predicate offense or the use of

the firearm. 572 U.S. 65, 67, 74 (2014). The Court determined that it was

“inconsequential” that the defendant’s acts did not satisfy each element of the §

924(c) offense, so long as he facilitated at least one component. Id. at 74-75.

      Here, we are unpersuaded by Smiley’s claim that aiding and abetting

attempted Hobbs Act robbery no longer qualifies as a valid predicate offense under

§ 924(c)’s elements clause. For starters, Rosemond’s holding -- which applies only

to the aiding and abetting of a § 924(c) offense itself (be it a “crime of violence” or

a “drug trafficking crime”), and does not address what constitutes a “crime of

violence” for purposes of § 924(c)’s underlying offense -- does not abrogate St.

Hubert, Fleur, or Colon. Indeed, the Supreme Court has never said that Hobbs Act

robbery, aiding and abetting Hobbs Act robbery, or attempted Hobbs Act robbery


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does not qualify as a crime of violence under § 924(c)’s elements clause, and has not

otherwise overruled St. Hubert, Fleur, or Colon, nor undermined them to the point

of abrogation. Lambrix, 776 F.3d at 794. Moreover, and in any event, we decided

these cases years after the Supreme Court’s decision in Rosemond, making clear that

our decisions in St. Hubert, Fleur, and Colon remain binding on us. Fritts, 841 F.3d

at 942. Thus, under the prior panel precedent rule, Hobbs Act robbery, aiding and

abetting Hobbs Act robbery, and attempted Hobbs Act robbery all categorically

qualify as crimes of violence under § 924(c)’s elements clause. St. Hubert, 909 F.3d

at 348; Colon, 826 F.3d at 1305; Fleur, 824 F.3d at 1340; Lambrix, 776 F.3d at 794.

      Further, based on these decisions, aiding and abetting attempted Hobbs Act

robbery also categorically qualifies as a crime of violence under § 924(c)’s elements

clause. As we explained in Colon, an aider and abettor is responsible for the acts of

the principal, which means that Smiley is responsible for attempted Hobbs Act

robbery. Colon, 826 F.3d at 1305. And, as we also held in Colon, attempted Hobbs

Act robbery qualifies as a crime of violence under § 924(c)’s elements clause. See

id.; St. Hubert, 909 F.3d at 351. Thus, Smiley’s conviction for aiding and abetting

attempted Hobbs Act robbery qualifies as a crime of violence under § 924(c)’s

elements clause, and his conviction and sentence under § 924(c) have not been

affected by Johnson’s or Davis’s invalidation of § 924(c)’s residual clause. The

district court did not err in denying Smiley’s motion to vacate.


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AFFIRMED.




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