           Case: 16-16198    Date Filed: 11/27/2018   Page: 1 of 3


                                                      [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-16198
                        Non-Argument Calendar
                      ________________________

               D.C. Docket Nos. 8:16-cv-01641-EAK-MAP,
                      8:11-cr-00181-EAK-MAP-1


KENNETH H. BURKE, JR.,

                                                         Petitioner - Appellant,

                                   versus

UNITED STATES OF AMERICA,

                                                        Respondent - Appellee.

                      ________________________

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

                            (November 27, 2018)

Before MARTIN, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:
              Case: 16-16198     Date Filed: 11/27/2018    Page: 2 of 3


      We sua sponte vacate our earlier opinion in this case and affirm the district

court’s judgment denying Kenneth Burke’s motion to vacate his conviction and

sentence under 28 U.S.C. § 2255.

      Burke says the Supreme Court’s decision in Johnson v. United States, 135 S.

Ct. 2551 (2015), invalidated his conviction for carrying a firearm during and in

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

defines a crime of violence in part as any felony “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.” Id. § 924(c)(3)(B). Johnson held

similar language in 18 U.S.C § 924(e)(2)(B)(ii) unconstitutionally vague. 135 S.

Ct. at 2557. This Court recently ruled in In re Garrett, No. 18-13680 (11th Cir.

Nov. 2, 2018), that neither Johnson nor Sessions v. Dimaya, 138 S. Ct. 1204

(2018), invalidate § 924(c). Garrett thus forecloses Burke’s argument. For this

reason, we AFFIRM.




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              Case: 16-16198     Date Filed: 11/27/2018   Page: 3 of 3


ROSENBAUM, Circuit Judge, concurring:

      I concur in the panel’s order affirming the district court’s denial of Kenneth

Burke’s 28 U.S.C. § 2255 petition. One of Burke’s companion offenses for his

conviction under 18 U.S.C. § 924(c) was attempted Hobbs Act robbery. We have

held that attempted Hobbs Act robbery qualifies as a “crime of violence” under §

924(c)(3)(A)’s elements clause, without consideration of § 924(c)(3)(B)’s risk-of-

force clause. United States v. St. Hubert, No. 16-10874, 2018 WL 5993528 (Nov.

15, 2018). Therefore, we are bound by that holding, and Johnson v. United States,

135 S. Ct. 2551 (2015), cannot affect Burke’s conviction. As a result, the district

court did not err in denying Burke’s § 2255 petition. I would not opine further on

Burke’s Johnson claim, as it is unnecessary to resolve this appeal.




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