              Case: 16-16198     Date Filed: 11/19/2018    Page: 1 of 7


                                                               [DO NOT PUBLISH]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 19, 2018)

Before MARTIN, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Kenneth Burke appeals the district court’s denial of his 28 U.S.C. § 2255

motion to vacate his sentence. After careful consideration, we reverse and remand

for further consideration in light of this Court’s recent en banc decision in Ovalles
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v. United States, No. 17-10172, 2018 WL 4830079 (11th Cir. Oct. 4, 2018) (en

banc).

                                          I.

         On December 2, 2011, a jury convicted Burke of conspiracy and attempt to

unlawfully affect commerce by robbery, in violation of 18 U.S.C. § 1951;

knowingly carrying a firearm “during and in relation to a crime of violence,” in

violation of 18 U.S.C. § 924(c); and possession of ammunition by a convicted

felon, in violation of 18 U.S.C. § 922(g)(1). The district court sentenced Burke to

335 months in prison, including 120 months for the § 924(c) charge. This court

affirmed his convictions on direct appeal. United States v. Burke, 521 F. App’x

720 (11th Cir. 2013) (per curiam) (unpublished).

          A little over three years later, the Supreme Court decided Johnson v.

United States, which held that the Armed Career Criminal Act’s (“ACCA”)

residual clause was void for vagueness. 576 U.S. __, 135 S. Ct. 2551, 2557

(2015). In response, Burke filed an application with this Court seeking

authorization to file a second or successive § 2255 motion based (in part) on the

argument that Johnson rendered his § 924(c) conviction invalid. This Court

granted Burke’s application on the Johnson issue. Burke then asked the district

court to vacate his sentence under § 2255, arguing that his conviction under §

924(c) had to be vacated in light of Johnson. The district court rejected Burke’s


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efforts, holding that he did not satisfy the procedural requirements for filing a

second or successive motion because Johnson did not find § 924(c)

unconstitutional.

      Burke timely filed a notice of appeal. On February 22, 2017, this Court

granted him a certificate of appealability on two issues: (1) whether the district

court erred when it found Burke did not meet the requirements to file a second or

successive 28 U.S.C. § 2255 motion; and (2) whether the Supreme Court’s

decision in Johnson rendered Burke’s 18 U.S.C. § 924(c) conviction

unconstitutional.

                                          II.

      “We review de novo the district court’s dismissal of a 28 U.S.C. § 2255

motion as second or successive.” Gooden v. United States, 627 F.3d 846, 847 n.2

(11th Cir. 2010) (quotation marks omitted).

                                         III.

      28 U.S.C. § 2244(b)(4) requires a district court to dismiss “any claim

presented in a second or successive application that the court of appeals has

authorized to be filed unless the applicant shows that the claim satisfies the

requirements” for an exception. One such exception is a claim that “relies on a

new rule of constitutional law, made retroactive to cases on collateral review by

the Supreme Court, that was previously unavailable.” Id. § 2244(b)(2)(A).


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      Burke argues the district court erred in finding that his claim did not rely on

a new, retroactively applicable rule of constitutional law as established by the

Supreme Court. Because the district court denied Burke’s § 2255 petition without

the benefit of our opinion in Ovalles, 2018 WL 4830079, we reverse and remand

for reconsideration in light of Ovalles. On remand, the district court should also

determine, if necessary, whether Burke’s conviction survives our Ovalles decision.

      Section 924(c) provides enhanced punishments for a person convicted of

carrying a firearm “during and in relation to a crime of violence.” 18 U.S.C.

§ 924(c)(1)(A). A crime of violence is defined 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). This is also referred to as § 924(c)’s residual clause, and its

language shares substantial similarities with the ACCA residual clause, which the

Supreme Court struck down as unconstitutionally vague in Johnson. See 135 S.

Ct. at 2557–58.

      Johnson held the ACCA residual clause was unconstitutionally void for

vagueness. Id. at 2557. Courts were required to use what is known as the

categorical approach to determine whether a particular crime qualified as a crime

of violence within the meaning of the residual clause. Id. at 2557–58. This

approach required courts to “assess[] whether a crime qualifies as a violent felony


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in terms of how the law defines the offense and not in terms of how an individual

offender might have committed it on a particular occasion.” Id. at 2557 (quotation

marks omitted). This was an abstract inquiry, and one the Supreme Court

concluded led to two problems: first, there was “no reliable way” to define the

“ordinary” way of committing a crime; and second, the clause left “uncertainty

about how much risk it takes for a crime to qualify as a violent felony.” Id. at

2557–58. The Court therefore held that “imposing an increased sentence under

[ACCA’s residual clause] violates the Constitution’s guarantee of due process.”

Id. at 2563.

      Until recently, this Court used the same categorical approach to decide

whether a particular offense counts as a crime of violence under § 924(c)(3)(B).

See United States v. McGuire, 706 F.3d 1333, 1336 (11th Cir. 2013) (O’Connor,

J.), overruled by Ovalles, 2018 WL 4830079. However, Ovalles, which is a

“successor” to Johnson, abandoned the categorical approach for purposes of

deciding whether an offense counts as a crime of violence under § 924(c)(3)(B).

2018 WL 4830079 at *1–2. In an effort to avoid the constitutional problems

identified in Johnson, this Court adopted instead what we called a “conduct-based”

approach to § 924(c)(3)(B). Id. at *1–2. Rather than imagine an ordinary case in

the abstract, Ovalles now requires us to ask whether a defendant’s actual conduct

“by its nature[] involve[s] a substantial risk” of physical force. 18 U.S.C.


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§ 924(c)(3)(B); Ovalles, 2018 WL 4830079 at *17–18. Because this is a factual

determination that increases punishment, Ovalles recognized that juries, not

judges, must decide whether a defendant’s conduct involved such a substantial

risk. See 2018 WL 1830079 at *15 n.8. Importantly for this case, Ovalles

recognized that the use of the categorical approach under § 924(c)(3)(B) implicates

the same vagueness problems at issue in Johnson. Id. at *1.

      It seems likely that the conspiracy to commit robbery and attempted robbery

charges were categorically treated as crimes of violence here. The jury was

instructed they could find Burke guilty of the § 924(c) charge only if they found

beyond a reasonable doubt that Burke “committed either or both of the crimes of

violence charged in Counts One or Two.” Counts One and Two charged

conspiracy to commit robbery and attempted robbery. This instruction appears to

have told the jury that the crimes charged were crimes of violence, rather than ask

the jury to decide whether Burke’s conduct made those counts crimes of violence.

If the jury was instructed that conspiracy to commit robbery and attempted robbery

were to be treated as crimes of violence under § 924(c)(3)(B), Burke may well

have stated a Johnson claim. As a result, he may be entitled under Ovalles to have

a jury decide whether his offenses posed a substantial risk that force would be

used. We leave it to the district court to reconsider its decision to deny Burke’s §




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2255 petition and to decide in the first instance what relief, if any, Burke is entitled

to in light of Ovalles.

      REVERSED AND REMANDED.




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