                Case: 16-13077   Date Filed: 01/17/2019   Page: 1 of 4


                                                              [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 16-13077
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket Nos. 0:16-cv-61001-WPD,
                             0:12-cr-60018-WPD-4


MARCUS MCKNIGHT,

                                                  Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

                                                  Respondent-Appellee.

                           ________________________

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

                                 (January 17, 2019)

Before JORDAN, BRANCH, and JULIE CARNES, Circuit Judges.

PER CURIAM:

         Marcus McKnight pled guilty to and was convicted of (1) conspiracy to

commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), and (2) carrying a
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firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). He

was sentenced to 84 months’ imprisonment and five years of supervised release.

On May 9, 2016, Mr. McKnight filed a motion to vacate his convictions and

sentences under 28 U.S.C. § 2255, arguing that he is not guilty of carrying a

firearm in relation to a crime of violence under § 924(c)’s residual clause. See §

924(c)(3)(B). He contends that the Supreme Court’s opinion in Johnson v. United

States, 135 S. Ct. 2551, 2257–58 (2015)—which held that the Armed Career

Criminal Act’s residual clause was void for vagueness—invalidated § 924(c)’s

residual clause.


      The district court dismissed Mr. McKnight’s motion after concluding that

Johnson did not extend beyond the ACCA. Because Johnson did not apply to §

924(c), the motion to vacate was also not filed within § 2255(f)(3)’s one-year

statute of limitations, and Mr. McKnight was not excused from failing to directly

appeal his conviction. See Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir.

2004) (allowing a § 2255 motion to proceed without a direct appeal when “a

constitutional violation has probably resulted in the conviction of one who is

actually innocent”) (quotation marks omitted). On appeal, Mr. McKnight argues

that Johnson renders § 924(c)’s residual clause unconstitutionally vague. This

argument is foreclosed by recent binding precedent.



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       After the parties briefed this appeal, we decided Ovalles v. United States,

905 F.3d 1231 (11th Cir. 2018) (en banc), holding that the Supreme Court’s

decisions in Johnson and Sessions v. Dimaya, 138 S. Ct. 1204 (2018), did not

invalidate § 924(c)’s residual clause.            See Ovalles, 905 F.3d at 1252–53.

Specifically, we determined that the constitutional-doubt canon of statutory

construction required us to apply § 924(c)’s residual clause using a conduct-based

approach, as opposed a categorical approach. See id. at 1240, 1244, 1251. This

conduct-based approach accounts for “actual, real-world facts of the crime’s

commission” in determining whether that crime qualifies under § 924(c)’s residual

clause. Id. at 1253. Since Ovalles, we have held that an attempted Hobbs Act

robbery conviction qualified as “crime of violence” under § 924(c)’s residual

clause based on the facts of the offense stated at the defendant’s plea hearing. See

United States v. St. Hubert, 909 F.3d 335, 346–47 (11th Cir. 2018). See also In re

Garrett, 908 F.3d 686, 689 (2018) (“[Under Ovalles], neither Johnson nor Dimaya

supplies any ‘rule of constitutional law’ . . . that can support a vagueness-based

challenge to the residual clause of section 924(c).”). 1



1
  Our opinion in St. Hubert, 909 F.3d at 352, also concluded that a conviction for attempt to
commit a Hobbs Act robbery qualifies under § 924(c)’s elements clause, § 924(c)(3)(A). See
also In re Fleur, 824 F.3d 1337, 1341 (11th Cir. 2016) (holding that a Hobbs Act robbery
conviction met § 924(c)’s elements clause); In re Colon, 826 F.3d 1301, 1305 (11th Cir. 2016)
(holding that a conviction for aiding and abetting a Hobbs Act robbery met § 924(c)’s elements
clause). Cf. In re Pinder, 824 F.3d 977, 979 n.1 (11th Cir. 2016) (noting that it is unsettled
whether a conviction for conspiracy to commit a Hobbs Act robbery meets § 924(c)’s elements
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       At Mr. McKnight’s plea hearing, the government proffered, without

objection, that it “would have proven beyond a reasonable doubt that [Mr.]

McKnight agreed to steal 15 to 20 kilograms of cocaine from a stash house

[belonging to a Mexican drug cartel] by using force through firearms and

ammunition.” Mr. McKnight’s PSI similarly recounted the facts surrounding his

conviction, which Mr. McKnight did not dispute.                  Under a conduct-based

approach, Mr. McKnight’s conspiracy to commit a Hobbs Act robbery involved a

substantial risk that physical force may be used against a person or property. See

Ovalles, 905 F.3d at 1252–53. Thus, his conviction constituted a crime of violence

under § 924(c)’s residual clause.


       AFFIRMED.




clause). Because Mr. McKnight’s conviction satisfies § 924(c)’s residual clause, we need not
determine whether a conspiracy to commit a Hobbs Act robbery conviction falls under § 924(c)’s
elements clause.

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