             Case: 18-11040     Date Filed: 02/26/2020   Page: 1 of 7


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 18-11040
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 1:16-cv-22567-KMM,
                            1:13-cr-20207-KMM-2

TRAVARIS CRAWFORD,

                                                             Petitioner-Appellant,

                                      versus


UNITED STATES OF AMERICA,

                                                             Respondent-Appellee.
                          ________________________

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

                               (February 26, 2020)


Before WILSON, TJOFLAT, and ANDERSON, Circuit Judges.

PER CURIAM:

      Travaris Crawford appeals the District Court’s denial of his 28 U.S.C.

§ 2255 motion to vacate his conviction under 18 U.S.C. § 924(c)(1)(A) and the
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corresponding sentence. The District Court held that Crawford’s argument that

§ 924(c)(3) is unconstitutionally vague was foreclosed by our decision in Ovalles.1

We reject that argument and affirm the District Court’s judgment on alternative

grounds.

                                             I.

       In 2013, Crawford pled guilty to three counts of Hobbs Act robbery, in

violation of 18 U.S.C. § 1951(a), and one count of possession of a firearm in

furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c). Section

924(c) provides for a mandatory consecutive sentence for any defendant who uses

or carries a firearm during and in relation to, or possesses a firearm in furtherance

of, either a “crime of violence” or a “drug trafficking crime.” 18 U.S.C. §

924(c)(1)(A).

       The statute defines a “crime of violence” as a felony offense that

       (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.

18 U.S.C.A. § 924(c)(3). We refer to § 924(c)(3)(A) as the elements clause and

§ 924(c)(3)(B) as the residual clause.


       1
        Ovalles v. United States, 861 F.3d 1257, 1263–67 (11th Cir. 2017), vacated on reh’g en
banc, 905 F.3d 1356 (2018).
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      In 2015, the Supreme Court decided Johnson v. United States, 135 S. Ct.

2551 (2015), holding that a similar residual clause in the Armed Career Criminal

Act of 1984 is unconstitutionally vague. Crawford then filed a § 2255 motion to

vacate. He argued that, in light of Johnson, § 924(c)’s residual clause is

unconstitutionally vague. He also argued that his conviction for substantive Hobbs

Act robbery did not qualify as a crime of violence under the elements clause

because it could be accomplished without physical force.

      The District Court denied Crawford’s motion. Specifically, it held that

Crawford’s argument about the residual clause was “squarely foreclosed by the

Eleventh Circuit’s decision in Ovalles.” Because the felony qualified under the

residual clause, the District Court concluded that it “need not address [Crawford’s]

second argument – that Hobbs Act robbery does not qualify as a crime of violence

under the [elements] clause.”

      In 2018, we granted Crawford a certificate of appealability (“COA”) on one

issue only:

      Whether the Supreme Court’s decision in Sessions v. Dimaya, No. 15-
      1498, manuscript op. at 24-25 (Apr. 17, 2018), undermines this
      Court’s holding in Ovalles v. United States, 86[1] F.3d 1258, 1263-67
      (11th Cir. 2017), that the [residual] clause in 18 U.S.C. § 924(c)(3)(B)
      is not unconstitutionally vague.

      That issue has since been decided by the Supreme Court. In United States v.

Davis, 139 S. Ct. 2319 (2019), the Supreme Court held that the residual clause,

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§ 924(c)(3)(B), is unconstitutionally vague. Davis thus abrogated our decision in

Ovalles.

      Crawford subsequently filed his opening brief with us, answering the

question in the COA in the affirmative and requesting remand to the District Court.

The government moved for summary affirmance, contending that Crawford’s

substantive Hobbs Acts offense qualifies as a crime of violence under the elements

clause and that this Court can summarily affirm the District Court on any basis

supported by the record. Crawford objects that this issue is outside the COA and

that the District Court did not address this issue. We directed the parties to file

supplemental letter briefs on whether the COA should be expanded and on the

merits issue. We now affirm.

                                          II.

      The COA is a jurisdictional prerequisite: an appeal cannot be taken to this

Court without it. 28 U.S.C. § 2253(c)(1) (“Unless a circuit justice or judge issues a

certificate of appealability, an appeal may not be taken to the court of appeals . .

.”); Gonzalez v. Thaler, 565 U.S. 134, 142, 132 S. Ct. 641, 649 (2012). A judge

can issue a COA only if the applicant “has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The COA must also

specify which issue or issues satisfy that showing. Id. § 2253(c)(3). But while




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“failure to obtain a COA is jurisdictional,” “a COA’s failure to indicate an issue is

not.” Gonzalez, 565 U.S. at 143, 132 S. Ct. at 649.

      Although the specification requirement is not jurisdictional, we are still

bound by the clear text enacted by Congress. Spencer v. United States, 773 F.3d

1132, 1138 (11th Cir. 2014) (en banc). We cannot act in contradiction to the

statutory requirements. Id. As such, we have repeatedly held that “the scope of

our review of an unsuccessful § 2255 motion is limited to the issues enumerated in

the COA.” McKay v. United States, 657 F.3d 1190, 1195 (11th Cir. 2011); see

also Murray v. United States, 145 F.3d 1249, 1251 (11th Cir. 1998). Normally,

this limitation means that we disregard arguments raised by an appellant that are

outside the issues specified in the COA. See, e.g., Hodges v. Att’y Gen., 506 F.3d

1337, 1341 (11th Cir. 2007); Murray, 145 F.3d at 1251.

      Here, however, the government requests that we consider—and summarily

affirm—on an issue not specified in the COA. The government points to the

Supreme Court’s decision Jennings v. Stephens, 574 U.S. 271, 135 S. Ct. 793, 796

(2015), arguing that we can affirm on any basis supported by the record.

      In Jennings, the Supreme Court considered whether a petitioner-appellee

could defend his writ of habeas corpus on a theory that the District Court had

rejected without taking a cross-appeal or obtaining a COA. 574 U.S. at 271, 135 S.

Ct. at 796. The Court determined that the gate-keeping function of a COA applies

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only when “tak[ing] an appeal”; it does not apply when defending a judgment on

alternative grounds. Id. at 802. Therefore, no COA is required for the government

to defend the district court’s judgment on alternative grounds. 2 Because the

government seeks only to affirm the judgment of the District Court below, we can

consider arguments in defense of that judgment. 3



                                                     II.

       Satisfied that we can consider the issue, we turn now to whether Crawford’s

Hobbs Act robbery qualifies as a crime of violence under the use-of-force clause.

We review de novo whether an offense qualifies as a “crime of violence.” Brown,

942 F.3d at 1072.

       We use a categorical approach to assess whether an offense constitutes a

“crime of violence” under the elements clause. Id. (citing United States v. St.


       2
         We have followed this practice in unpublished decisions. See, e.g., Williams v. United
States, 785 F. App’x 710, 712 (11th Cir. 2019); Caison v. Sec’y, Dep’t of Corr., 766 F. App’x
870, 874 n.1 (11th Cir. 2019).
       3
           We asked the parties to brief the effect of Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992)
(en banc), on our ability to affirm on a ground that the District Court did not decide. Clisby held
that a district court must resolve all claims for relief in a habeas motion, regardless of whether
relief is granted or denied. 960 F.2d at 935–36, 938; Rhode v. United States, 583 F.3d 1289,
1291 (11th Cir. 2009) (extending Clisby to § 2255 motions). We cannot consider a claim that a
district court has not resolved in the first instance and instead, “will vacate the district court’s
judgment without prejudice and remand the case for consideration of all remaining claims.”
Clisby, 960 F.2d at 938. A claim is “any allegation of a constitutional violation.” Id. at 936.
Here, however, Crawford has only one claim—that his conviction for Hobbs Act Robbery does
not qualify as a crime of violence under § 924(c). We can consider other arguments in defense
of the judgment on that claim.
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Hubert, 909 F.3d 335, 348–49 (11th Cir. 2018)). “[W]e look to whether the

statutory elements of the predicate offense necessarily require, at a minimum, the

threatened or attempted use of force.” Id. We assume that the conviction rests

upon the least of the acts criminalized, and then determine whether those acts

qualify as a crime of violence. Moncrieffe v. Holder, 569 U.S. 184, 191, 133 S. Ct.

1678, 1684 (2013). The specific circumstances of the actual offense are irrelevant;

the “inquiry begins and ends with the elements of the crime.” Brown, 942 F.3d at

1075.

        We have repeatedly held—and Crawford concedes—that substantive Hobbs

Act robbery qualifies as a crime of violence under the elements clause of

§ 924(c)(3)(A). See St. Hubert, 909 F.3d at 348; In Re Saint Fleur, 824 F.3d 1337

(11th Cir. 2016). Therefore, the government’s motion for summary affirmance is

granted.

        AFFIRMED.




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