Carlos Marcano, Jr. v. United States
714 F. App'x 955
| 11th Cir. | 2017Background
- In 2012 Carlos Marcano pleaded guilty to carjacking (18 U.S.C. § 2119) and to brandishing a firearm during a “crime of violence” (18 U.S.C. § 924(c)(1)(A)(ii)); the § 924(c) sentence (84 months) was consecutive to a 1‑day carjacking sentence.
- Marcano did not appeal his convictions but filed a 28 U.S.C. § 2255 motion in 2016 seeking vacatur of the § 924(c) conviction after Johnson v. United States.
- He argued Johnson rendered § 924(c)’s risk‑of‑force (residual) clause unconstitutionally vague and that carjacking also fails the use‑of‑force clause because it can be committed by intimidation rather than physical force.
- The district court denied relief, finding carjacking still qualifies as a “crime of violence” under § 924(c)’s use‑of‑force clause even if Johnson affected the risk‑of‑force clause.
- The Eleventh Circuit granted a certificate of appealability on whether Johnson affected Marcano’s § 924(c) conviction and affirmed, applying controlling Eleventh Circuit precedent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Johnson invalidates § 924(c)(3)(B) (risk‑of‑force clause) so that carjacking no longer qualifies under § 924(c) | Johnson renders the residual/risk‑of‑force language unconstitutionally vague, so Marcano’s § 924(c) conviction must be vacated | Ovalles and related Eleventh Circuit precedent distinguish § 924(c) from the ACCA residual clause; the risk‑of‑force clause remains valid | Court applied Ovalles: Johnson does not invalidate § 924(c)(3)(B); even if challenged, alternative grounds sustain conviction |
| Whether carjacking (§ 2119) qualifies as a "crime of violence" under § 924(c)(3)(A) (use‑of‑force clause) | Carjacking can be committed by intimidation and thus may not require use/threat of physical force | Eleventh Circuit precedent holds § 2119 carjacking categorically satisfies the use‑of‑force clause | Held: § 2119 carjacking is a crime of violence under the use‑of‑force clause; § 924(c) conviction stands |
| Whether Ovalles bindingly controls this panel | Marcano urged reexamination because his offense was a completed carjacking (not attempted) | Court invoked prior‑panel precedent rule; Ovalles controls absent en banc or Supreme Court reversal | Held: Ovalles controls; this panel must follow it |
| Whether potential future Supreme Court decisions (e.g., Dimaya) change the outcome | Marcano suggested Dimaya could affect § 924(c)(3)(B) analysis | Court noted Dimaya involves different statutory context (recidivist § 16(b)) and stressed alternative use‑of‑force holding | Held: Even if Dimaya affected risk‑of‑force clause, use‑of‑force holding independently sustains Marcano’s conviction |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidated ACCA residual clause as unconstitutionally vague)
- Welch v. United States, 136 S. Ct. 1257 (2016) (held Johnson announced a new substantive rule retroactive to collateral review)
- Ovalles v. United States, 861 F.3d 1257 (11th Cir. 2017) (held § 924(c)’s risk‑of‑force clause survives Johnson and § 2119 carjacking qualifies under both clauses)
- In re Lambrix, 776 F.3d 789 (11th Cir. 2015) (prior‑panel precedent rule: panels must follow controlling circuit precedent)
- In re Smith, 829 F.3d 1276 (11th Cir. 2016) (recognized § 2119 carjacking qualifies under § 924(c)’s use‑of‑force clause)
- Kilgore v. Sec’y, Fla. Dept. of Corr., 805 F.3d 1301 (11th Cir. 2015) (alternative and independent holdings are binding)