              Case: 17-13353    Date Filed: 02/04/2020   Page: 1 of 5


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 17-13353
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 1:13-cr-20334-CMA-1


UNITED STATES OF AMERICA,

                                                                Plaintiff - Appellee,

                                      versus

BOBBY JENKINS,

                                                             Defendant - Appellant.

                          ________________________

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

                                (February 4, 2020)
Before MARTIN, GRANT, and LAGOA, Circuit Judges.

MARTIN, Circuit Judge:

      Bobby Jenkins, Jr., appeals his conviction and sentence for carrying a

firearm during a crime of violence in violation of 18 U.S.C. § 924(c). After careful

review, we vacate Mr. Jenkins’s § 924(c) conviction and remand for resentencing.
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                                          I.

      In May 2013, Mr. Jenkins was indicted for conspiracy to commit Hobbs Act

robbery in violation of 18 U.S.C. § 1951(a); conspiracy to possess with intent to

distribute 5 kilograms or more of cocaine in violation of 21 U.S.C. § 846;

possessing a firearm as a felon in violation of 18 U.S.C. §§ 922(g)(1) and

924(c)(1); and carrying a firearm during a crime of violence in violation of 18

U.S.C. § 924(c). Notably, the indictment specified that the § 924(c) count was

predicated on “a violation of Title 18, United States Code, Section 1951(a),” or

conspiracy to commit Hobbs Act robbery. Mr. Jenkins went to trial, and in

October 2013, a jury convicted him on all counts. Mr. Jenkins was sentenced to

two concurrent 20-year terms of imprisonment on the conspiracy counts, a

concurrent ten-year term on the felon-in-possession count, and a consecutive term

of five years on the § 924(c) count, for a total sentence of 25 years.

      On direct appeal, our Court vacated Mr. Jenkins’s felon-in-possession

conviction and remanded his case for resentencing. See United States v. Clarke,

822 F.3d 1213, 1215 (11th Cir. 2016) (per curiam). On remand but prior to

resentencing, Mr. Jenkins moved to dismiss the § 924(c) charge in the indictment.

He argued his § 924(c) conviction was invalid in light of Johnson v. United States,

576 U.S. ___, 135 S. Ct. 2551 (2015). Of course, Johnson struck down as

unconstitutionally vague the “residual clause” of the Armed Career Criminal Act,



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which defined the term “violent felony.” Id. at 2557. Mr. Jenkins reasoned that

the similarly worded residual clause in § 924(c)(3)(B), defining “crime of

violence,” was likewise unconstitutionally vague. He also submitted that the

predicate offense for his § 924(c) conviction—conspiracy to commit Hobbs Act

robbery—did not otherwise qualify as a crime of violence under § 924(c)(3)(A),

known as the “elements clause.”

       At his 2017 resentencing hearing, the District Court declined to dismiss Mr.

Jenkins’s § 924(c) conviction. The court concluded that Johnson did not apply to

§ 924(c), relying on our precedent in Ovalles v. United States, 861 F.3d 1257 (11th

Cir. 2017), on reh’g en banc, 905 F.3d 1231 (11th Cir.), opinion reinstated in part,

905 F.3d 1300 (11th Cir. 2018), abrogated by United States v. Davis, 588 U.S.

___, 139 S. Ct. 2319 (2019). The District Court imposed two concurrent sentences

of 121 months on the conspiracy charges, followed by a consecutive sentence of

five years on the § 924(c) charge. Mr. Jenkins filed a timely notice of appeal from

his now-15-year sentence.1 On appeal, Mr. Jenkins renews his arguments that his

§ 924(c) conviction should be vacated.




       1
          The government filed an untimely notice of cross-appeal to challenge Mr. Jenkins’s
reduced sentences on the two conspiracy counts. The government moved to voluntarily dismiss
its cross-appeal in February 2019, and this Court granted the motion.


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                                         II.

      Whether an offense underlying a § 924(c) conviction qualifies as a “crime of

violence” presents a question of law, which we review de novo. See Brown v.

United States, 942 F.3d 1069, 1072 (11th Cir. 2019) (per curiam).

                                         III.

      Since Mr. Jenkins’s 2017 resentencing, his belief that Johnson invalidated

18 U.S.C. § 924(c)(3)(B) has become law. In Davis, the Supreme Court extended

its holding in Johnson and announced that the definition of “crime of violence” in

§ 924(c)’s residual clause is void for vagueness. 139 S. Ct. at 2327, 2336. Davis

presented a new, substantive rule of constitutional law that applies retroactively to

criminal cases. In re Hammoud, 931 F.3d 1032, 1037–39 (11th Cir. 2019). Davis,

however, did not affect the definition of “crime of violence” found in § 924(c)’s

elements clause. See Brown, 942 F.3d at 1075. Thus, Mr. Jenkins can now benefit

from Davis only if his § 924(c) predicate offense does not qualify as a crime of

violence under the elements clause.

      In Brown, this Court concluded that conspiracy to commit Hobbs Act

robbery is not a crime of violence under § 924(c)’s elements clause. 942 F.3d at

1075–76. Because conspiracy to commit Hobbs Act robbery served as the sole

predicate for Mr. Brown’s § 924(c) conviction, we vacated his conviction and

remanded for resentencing. Id. at 1074–76.



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      Mr. Jenkins is entitled to the same relief. His indictment referenced

conspiracy to commit Hobbs Act robbery as the only predicate offense supporting

the § 924(c) charge. A jury convicted Mr. Jenkins of violating § 924(c) on this

basis alone. Because conspiracy to commit Hobbs Act robbery is not a crime of

violence under the elements clause, Mr. Jenkins could have only been convicted of

a § 924(c) violation under the unconstitutional residual clause in § 924(c)(3)(B).

His § 924(c) conviction and the accompanying consecutive five-year sentence are

therefore invalid. In accordance with Brown, we vacate Mr. Jenkins’s § 924(c)

conviction and remand for resentencing.

      VACATED AND REMANDED.




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