           Case: 17-11531   Date Filed: 05/03/2018   Page: 1 of 7


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-11531
                        Non-Argument Calendar
                      ________________________

       D.C. Docket Nos. 1:16-cv-22647-MGC; 1:10-cr-20855-MGC-4



EMILE MYRTHIL,

                                                          Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                         Respondent-Appellee.

                      ________________________

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

                              (May 3, 2018)

Before MARCUS, ROSENBAUM and FAY, Circuit Judges.

PER CURIAM:
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      Federal prisoner Emile Myrthil appeals the district court’s dismissal of his

second motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C.

§ 2255. We affirm.

                                I. BACKGROUND

      Myrthil pled guilty to conspiracy to commit Hobbs Act robbery, in violation

of 18 U.S.C. § 1951(a), attempted Hobbs Act robbery, also in violation of

§ 1951(a), and possession of a firearm in furtherance of a “crime of violence,” in

violation of 18 U.S.C. § 924(c)(1)(A)(iii). The “crimes of violence” that supported

Myrthil’s § 924(c) conviction were his convictions for conspiracy to commit

Hobbs Act robbery and attempted Hobbs Act robbery. Myrthil received a 151-

month total sentence of imprisonment.

      Myrthil filed his first § 2255 motion in 2013; the district court denied it on

the merits. In 2016, he filed the instant second or successive § 2255 motion with

our authorization, arguing that he was actually innocent of his § 924(c) conviction.

He contended that § 924(c)(3)(B)’s “risk-of-force” clause was void for vagueness

in light of Johnson v. United States, 135 S. Ct. 2551 (2015), and, further, that his

convictions for conspiracy to commit Hobbs Act robbery and attempted Hobbs Act

robbery were not appropriate § 924(c) companion convictions because they were

not categorically “crimes of violence” under § 924(c)(3)(A)’s “use-of-force”

clause. The district court denied Myrthil’s § 2255 motion on the merits, based on


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its finding that Myrthil’s conviction for attempted Hobbs Act robbery was a valid

“crime of violence” companion conviction under § 924(c)(3)(A)’s “use-of-force”

clause. The district court also denied Myrthil a certificate of appealability

(“COA”).

      Myrthil appealed; we granted him a COA on the following two issues:

             (1) Whether Myrthil’s conviction for attempted Hobbs
             Act robbery, in violation of 18 U.S.C. § 1951, qualifies
             as a crime of violence necessary to support his 18 U.S.C.
             § 924(c) conviction, in light of Johnson v. United States,
             135 S. Ct. 2251 (2015).

             (2) Whether Myrthil’s conviction for conspiracy to
             commit Hobbs Act robbery, in violation of 18 U.S.C.
             § 1951, qualifies as a crime of violence necessary to
             support his 18 U.S.C. § 924(c) conviction, in light of
             Johnson v. United States, 135 S. Ct. 2551 (2015).

      On appeal, Myrthil argues that § 924(c)’s “risk-of-force” clause is void for

vagueness for the same reasons that led the Supreme Court to declare in Johnson

that § 924(e)’s similar “residual” clause was unconstitutionally vague. Therefore,

he contends that, absent § 924(c)’s “risk-of-force” clause, his § 924(c) conviction

can stand only if his convictions for attempted Hobbs Act robbery and conspiracy

to commit Hobbs Act robbery qualify as “crimes of violence” under § 924(c)’s

“use-of-force” clause. He argues that those convictions are not categorically

“crimes of violence” necessary to support his § 924(c) conviction.




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                                  II. DISCUSSION

       In reviewing a § 2255 proceeding, we review legal conclusions de novo and

factual findings for clear error. Osley v. United States, 751 F.3d 1214, 1222 (11th

Cir. 2014). Under the Armed Career Criminal Act (“ACCA”), a defendant

convicted of being a felon in possession of a firearm who has 3 or more prior

convictions for a “serious drug offense” or “violent felony” faces a mandatory

minimum 15-year sentence. See 18 U.S.C. § 924(e)(1). The ACCA defines a

violent felony as any crime punishable by a term of imprisonment exceeding one

year that:

              (i) has as an element the use, attempted use, or threatened
              use of physical force against the person of another; or

              (ii) is burglary, arson, or extortion, involves use of
              explosives, or otherwise involves conduct that presents a
              serious potential risk of physical injury to another.

§ 924(e)(2)(B)(i), (ii).

       The first prong of this definition is referred to as the “elements clause,”

while the second prong contains the “enumerated crimes” clause, and finally, what

is commonly called the “residual clause.” United States v. Owens, 672 F.3d 966,

968 (11th Cir. 2012). In 2015, the Supreme Court, in Johnson v. United States,

struck down the ACCA’s “residual” clause as unconstitutionally vague. 135 S. Ct.

2551 (2015). The Court clarified, in holding that the “residual” clause was void,

that it did not call into question the application of the “elements” and “enumerated
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offense” clauses of the ACCA’s definition of a violent felony. Id. at 2563. In

2016, the Supreme Court held that Johnson announced a new substantive rule that

applies retroactively to cases on collateral review. Welch v. United States, 136 S.

Ct. 1257, 1265 (2016).

      Distinct from the provision in § 924(e), § 924(c) provides for a mandatory

consecutive sentence for any defendant who uses a firearm during a “crime of

violence” or a “drug-trafficking crime.” 18 U.S.C. § 924(c)(1). A conviction and

sentence under § 924(c) requires only one companion conviction, not two. See

§ 924(c)(1)(A). For purposes of § 924(c), “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.

§ 924(c)(3)(A), (B). The first prong of the definition is referred to as the “use-of-

force” clause; the second prong is referred to as the “risk-of-force” or “residual”

clause. Ovalles v. United States, 861 F.3d 1257, 1263 (11th Cir. 2017).

      In Ovalles, we held that the Supreme Court’s decision in Johnson did not

invalidate § 924(c)(3)(B)’s “risk-of-force” clause. Id. at 1267. We affirmed the

denial of a defendant’s § 2255 motion to vacate her conviction and sentence for


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using and carrying a firearm during and in relation to a crime of violence, namely,

attempted carjacking, in violation of 18 U.S.C. § 2119. Id. at 1258-60. We

determined that Johnson’s void-for-vagueness ruling did not extend to §

924(c)(3)(B), because the “risk-of-force” clause in § 924(c)(3)(B) had a distinct

purpose of punishing firearm use in connection with a specific crime rather than

recidivism, had not caused the same difficulty in interpretation, did not encompass

risks arising after the offense is completed, and lacked the confusing enumerated

offenses. Id. at 1265-66. Accordingly, because Ovalles had never argued that her

attempted-carjacking offense would not qualify as a crime of violence under the

“risk-of-force” clause if that clause were constitutionally valid, we determined that

her conviction for attempted carjacking qualified as a “crime of violence” under

§ 924(c)(3)(B). Id. at 1267.

      Most recently, we held that a conviction for Hobbs Act robbery was a valid

§ 924(c) companion conviction because it qualified as a “crime of violence” under

both of the clauses of § 924(c)(3). United States v. St. Hubert, 883 F.3d 1319,

1328-29 (11th Cir. 2018). We also held that a conviction for attempted Hobbs Act

robbery is categorically a “crime of violence” under § 924(c)(3)(A)’s “use-of-force

clause.” Id. at 1334.

      Here, the district court did not err in denying Myrthil’s § 2255 motion, as

Ovalles holds that Johnson did not invalidate § 924(c)(3)(B)’s “risk-of-force”


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clause. Ovalles, 861 F.3d at 1259. Therefore, Myrthil’s conviction and sentence

under § 924(c) are still valid following Johnson, and his claim is foreclosed by

Circuit precedent.

      Additionally, even assuming that Johnson invalidated § 924(c)(3)(B)’s “risk-

of-force” clause, Myrthil’s § 924(c) conviction and sentence is still valid because

his conviction for attempted Hobbs Act robbery still qualifies as a “crime of

violence” companion conviction under § 924(c)(3)(A)’s “use-of-force” clause. St.

Hubert, 883 F.3d at 1334. That conclusion also means that we need not consider

whether Myrthil’s conviction for conspiracy to commit Hobbs Act robbery is a

“crime of violence” under § 924(c)(3)(A) or (B), because a conviction and

sentence under § 924(c) requires only one companion conviction, not two. See §

924(c)(1)(A).

      AFFIRMED.




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