            Case: 16-16584   Date Filed: 01/09/2019   Page: 1 of 5


                                                      [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-16584
                         Non-Argument Calendar
                       ________________________

          D.C. Docket Nos. 0:16-cv-61379-JIC; 0:10-cr-60206-JIC-1



KELVIN GIBSON,

                                                      Petitioner - Appellant,


                                   versus


UNITED STATES OF AMERICA,

                                                      Respondent - Appellee.

                       ________________________

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

                             (January 9, 2019)

Before WILSON, JILL PRYOR and HULL, Circuit Judges.

PER CURIAM:
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         Kelvin Gibson, a federal inmate, appeals the district court’s denial of his

28 U.S.C. § 2255 motion to vacate. Gibson argues that the district court erred in

concluding that he was ineligible for relief from his 18 U.S.C. § 924(c) conviction

and sentence, predicated on bank robbery. After careful review, we affirm.

                                            I.

         A grand jury indicted Gibson on one count of bank robbery, in violation of

18 U.S.C. § 2113(a) (Count 1), and one count of using and possessing a firearm

during, or in furtherance of, a crime of violence (the bank robbery), in violation of

18 U.S.C. § 924(c) (Count 2). Under § 924(c), a “crime of violence” is a felony

that “has as an element the use, attempted use, or threatened use of physical force

against the person or property of another” or “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)(A)-(B). The former

definition is called the “elements clause” and the latter is known as the “residual

clause.” See Ovalles v. United States, 905 F.3d 1231, 1234 (11th Cir. 2018) (en

banc).

         Gibson pled guilty to Count 2 pursuant to a written plea agreement; in

exchange, the government agreed to dismiss Count 1. In the factual proffer entered

in support of the guilty plea, Gibson admitted that he pointed his gun at bank

tellers and demanded money. The district court sentenced Gibson to 300 months’


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imprisonment, a term that later was reduced to 120 months’ imprisonment based

on his substantial assistance to the government. See Fed. R. Crim. P. 35(b)(1).

Gibson did not file a direct appeal.

      Gibson filed the instant § 2255 motion after the Supreme Court struck as

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

(“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii). See Johnson v. United States, 135 S. Ct.

2551, 2563 (2015). He argued that § 924(c)’s residual clause, which is similar to

ACCA’s, was unconstitutional under the same logic the Supreme Court articulated

in Johnson. And, he argued, bank robbery did not qualify as a crime of violence

under § 924(c)’s other definition, its elements clause. The district court denied

Gibson’s motion, concluding that bank robbery satisfied § 924(c)’s elements clause

definition notwithstanding any effect Johnson may have had on § 924(c)’s residual

clause.

      This Court granted Gibson a certificate of appealability on whether the

district court erred in concluding that Gibson’s § 924(c) conviction and sentence,

predicated on bank robbery under § 2113(a), was unaffected by Johnson.




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                                               II.

       On appeal, Gibson argues that § 924(c)’s residual clause is unconstitutional.

He further contends that bank robbery does not satisfy § 924(c)’s elements clause.1

Because binding precedent forecloses both of his arguments, we affirm. 2

       In Ovalles, this Court sitting en banc upheld § 924(c)’s residual clause

against a constitutional challenge by concluding that its text permitted courts to

examine a defendant’s conduct rather than the predicate offense statute—the

approach that led to the demise of ACCA’s residual clause. 905 F.3d at 1233-34.

We are bound to follow Ovalles unless or until it is overruled or undermined to the

point of abrogation by this Court sitting en banc or by the Supreme Court. United

States v. Brown, 342 F.3d 1245, 1246 (11th Cir. 2003). Thus, Gibson’s argument

that § 924(c)’s residual clause is unconstitutional must fail.

       We also are bound to reject Gibson’s argument that robbery under 18 U.S.C.

§ 2113(a) does not satisfy § 924(c)’s elements clause. In In re Sams, this Court

held that bank robbery under § 2113(a) categorically qualifies as an elements

clause crime of violence. 830 F.3d 1234, 1239 (11th Cir. 2016). Although Gibson

argues that Sams—as a published order on a request for authorization to file a


       1
         “In a section 2255 proceeding, we review legal issues de novo and factual findings
under a clear error standard.” United States v. Walker, 198 F.3d 811, 813 (11th Cir. 1999).
       2
        Given that Gibson’s arguments fail on the merits, we need not address the government’s
argument that his claim is barred by the sentence appeal waiver in his plea agreement. See
United States v. St. Hubert, 909 F.3d 335, 346 n.7 (11th Cir. 2018).
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second or successive § 2255 motion, not a merits decision, see id. at 1235—is not

binding outside the second or successive context, that argument also is foreclosed

by circuit precedent. See United States v. St. Hubert, 909 F.3d 335, 345-46 (11th

Cir. 2018). Following the logic of St. Hubert, as we must, Sams binds us unless or

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

en banc or by the Supreme Court. Brown, 342 F.3d at 1246. Thus, we conclude

that Gibson’s § 924(c) conviction is valid because his predicate offense, bank

robbery, satisfies the elements clause. 3

       For the foregoing reasons, we affirm Gibson’s § 924(c) conviction and

sentence.

       AFFIRMED.




       3
        Because bank robbery satisfies § 924(c)’s elements clause, we need not decide whether
Gibson’s offense conduct satisfies the residual clause under Ovalles’s conduct-based approach,
although we note that Gibson admitted to pointing a gun at bank tellers.
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