Quandre Council v. USA

Filing

Opinion issued by court as to Appellant Quandre Council. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 17-12146

Date Filed: 12/04/2017

Page: 1 of 4

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-12146
Non-Argument Calendar
________________________
D.C. Docket Nos. 1:16-cv-22409-UU,
1:12-cr-20937-UU-1
QUANDRE COUNCIL,
Individually,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Respondent - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 4, 2017)
Before TJOFLAT, JORDAN and NEWSOM, Circuit Judges.
PER CURIAM:

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Quandre Council, a federal prisoner serving a 96-month sentence for Hobbs
Act robbery and possession of a firearm in furtherance of a crime of violence,
appeals the district court’s denial of his motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255. In his initial motion and on appeal, Mr. Council
argues that his conviction for Hobbs Act robbery does not constitute a crime of
violence for purposes of 18 U.S.C. § 924(c) after Johnson v. United States, 135 S.
Ct. 2551 (2015), and because it does not categorically qualify as a crime of
violence under the “use of force” clause.
I
In denying Mr. Council’s § 2255 motion, the district court held that Hobbs
Act robbery qualifies as a crime of violence under § 924(c)’s “use-of-force” clause,
but found that the (residual) “risk-of-force” clause of § 924(c) was
unconstitutionally vague in light of Johnson. Thereafter, Mr. Council requested
and was granted a certificate of appealability on “whether a conviction for Hobbs
Act robbery categorically qualifies as a ‘crime of violence’ under § 924(c)’s ‘useof-force’ clause in light of Johnson.”
II
When reviewing a district court’s denial of a § 2255 motion, we review
questions of law de novo and factual findings for clear error. See Lynn v. United
States, 365 F.3d 1225, 1232 (11th Cir. 2004). We can affirm for any reason
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supported by the record, even if not relied upon by the district court. See United
States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir. 2008).
III
The Supreme Court invalidated the “residual clause” of the Armed Career
Criminal Act, 28 U.S.C. § 924(e), in Johnson, but made clear that its decision did
“not call into question application of the Act to the four enumerated offenses, or
the remainder of the Act’s definition of a violent felony.” 135 S. Ct. at 2563.
A separate provision requires additional penalties for a defendant who uses a
firearm during a violent felony or a drug trafficking crime. See § 924(c). This
provision defines a “crime of violence” as 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).

The “risk-of-force clause,” Section 924(c)(3)(B), uses language

similar to that found in § 924(e)’s now-unconstitutional residual clause, and that
forms the basis for Mr. Council’s argument. Unfortunately for Mr. Council, we
recently held in Ovalles v. United States, 861 F.3d 1257, 1267 (11th Cir. 2017),
that § 924(c)’s “risk-of-force” (i.e., residual) clause is not unconstitutionally vague.
In making our assessment, we noted “material textual differences” between the
clauses. See id. at 1263. We also explained that § 924(c) “is not concerned with
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recidivism, but rather with whether the instant firearm was used during and in
relation to the predicate crime of violence.” Id. at 1265. Because of the close
nexus needed between a firearm offense and a predicate crime, a § 924(c) residual
clause “crime of violence determination [is] more precise and more predictable”
than a residual clause determination under § 924(e). We thus held that textual and
application differences between § 924(c) and § 924(e) allow § 924(c)’s “risk-offorce” clause to withstand attack under Johnson. Id. at 1266.
IV
Given our decision in Ovalles, Mr. Council’s sentence is affirmed.
AFFIRMED.

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