Opinion
No. 16-17685
02-19-2020
RYKEITH ANDRE LEVATTE, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee.
[DO NOT PUBLISH] Non-Argument Calendar D.C. Docket Nos. 8:16-cv-01105-VMC-TBM; 8:10-cr-00438-VMC-TBM-3 Appeal from the United States District Court for the Middle District of Florida Before BRANCH, BLACK and MARCUS, Circuit Judges. PER CURIAM:
Rykeith Andre Levatte appeals from the district court's dismissal of his 28 U.S.C. § 2255 motion to vacate his sentence. A single judge of this Court granted a Certificate of Appealability (COA) to Levatte on one issue: whether his convictions under 18 U.S.C. § 924(c), predicated on convictions for aiding and abetting Hobbs Act robbery, are unconstitutional in light of Johnson v. United States, 135 S. Ct. 2551 (2015). After review, we affirm the district court's dismissal.
In reviewing a denial of a motion to vacate under § 2255, we review the district court's legal conclusions de novo and findings of fact for clear error. Stoufflet v. United States, 757 F.3d 1236, 1239 (11th Cir. 2014).
Section 924(c) of Title 18 of the United States Code criminalizes the use or carrying of a firearm in furtherance of a crime of violence or drug-trafficking crime. 18 U.S.C. § 924(c). A "crime of violence" is a felony offense that either:
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, orId. § 924(c)(3).
(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.
Subsection (A) is known as the "elements clause," while subsection (B) is known as the "residual clause." United States v. Davis, 139 S. Ct. 2319, 2324 (2019). In Davis, the Supreme Court extended its holdings in Johnson and Sessions v. Dimaya, 138 S. Ct. 1204 (2018), to § 924(c) and held that § 924(c)(3)(B)'s residual clause, like the residual clauses in the Armed Career Criminal Act and 18 U.S.C. § 16(b), is unconstitutionally vague. Davis, 139 S. Ct. at 2324-25, 2336.
A federal prisoner raising a Davis claim cannot show that he was sentenced under § 924(c)'s residual clause if current binding precedent clearly establishes his predicate offense qualifies as a crime of violence under the elements clause. In re Pollard, 931 F.3d 1318, 1321 (11th Cir. 2019); see also United States v. St. Hubert, 909 F.3d 335, 346 (11th Cir. 2018), cert. denied, 139 S. Ct. 1394 (2019), and abrogated in part on other grounds by Davis, 139 S. Ct. at 2336 (holding decisions published in the context of applications for leave to file a second or successive § 2255 motion are binding precedent on all subsequent panels of this Court). We have held aiding and abetting a crime of violence qualifies as a crime of violence for purposes of § 924(c)(3)(A). Steiner v. United States, 940 F.3d 1282, 1293 (11th Cir. 2019). In In re Colon, we held the defendant's § 924(c) conviction was valid, regardless of the validity of the residual clause, because its predicate crime of aiding and abetting Hobbs Act robbery qualified as a crime of violence under § 924(c)(3)(A). 826 F.3d 1301, 1305 (11th Cir. 2016).
As an initial matter, Levatte has preserved his argument that the predicate crimes on which his § 924(c) convictions were based—the charges of aiding and abetting Hobbs Act robbery—do not qualify as crimes of violence under the elements clause in § 924(c)(3)(A), because he raised this argument in his original, pro se § 2255 motion. His argument that his § 924(c) convictions were no longer valid because his predicate "Hobbs Act offense[s]" did not qualify as crimes of violence under the elements clause in § 924(c)(3)(A) was clear and simple enough for the district court to understand his claim, even if he did not specifically assert that his predicate offenses were aiding and abetting Hobbs Act robbery. See United States v. Corbett, 921 F.3d 1032, 1043 (11th Cir. 2019) (stating to preserve an issue for appeal, a defendant must raise the issue "in such clear and simple language that the trial court may not misunderstand it" (quotations omitted)); Waldman v. Conway, 871 F.3d 1283, 1289 (11th Cir. 2017) (explaining a pro se pleading is held to a less stringent standard than a pleading drafted by an attorney and is liberally construed).
As another initial matter, although this Court's COA was written before Davis issued and referenced only Johnson, the COA may be viewed as broad enough to encompass whether Levatte's § 924(c) convictions remain valid after Davis. Specifically, the COA could be read to encompass whether the Johnson line of cases, of which Davis is a part, invalidated § 924(c)(3)(B). See Davis, 139 S. Ct. at 2325-27. Because this is Levatte's first § 2255 motion, his case is similar in posture to Steiner, in which the COA referenced Johnson but this Court analyzed the appeal under Davis. Steiner, 940 F.3d at 1288.
We note this case does not present the issue of whether a second or successive claim was properly authorized.
On the merits, Levatte cannot show that his § 924(c) convictions are invalid in light of Davis because, regardless of Davis's holding that the residual clause in § 924(c)(3)(B) is unconstitutionally vague, this Court has held that aiding and abetting Hobbs Act robbery qualifies as a crime of violence under the elements clause in § 924(c)(3)(A). See Davis, 139 S. Ct. at 2324-25; Steiner, 940 F.3d at 1293; Colon, 826 F.3d at 1305; St. Hubert, 909 F.3d at 346. Because current binding precedent establishes that Levatte's predicate offenses qualify as crimes of violence under the elements clause, his convictions under § 924(c) remain valid. See Pollard, 931 F.3d at 1321.
AFFIRMED.