Curtis Solomon v. United States
911 F.3d 1356
11th Cir.2019Background
- Curtis Solomon was convicted after trial of Hobbs Act robbery, Hobbs Act conspiracy, and multiple counts under 18 U.S.C. § 924(c) (one § 924(c) count tied to the conspiracy and multiple substantive § 924(c) counts tied to robberies). He received a heavily consecutive sentence.
- Solomon filed a successive § 2255 challenge authorized by this Court only as to his § 924(c) conspiracy conviction (Count 2), arguing Johnson invalidated § 924(c)(3)(B)’s residual-clause definition of "crime of violence."
- The district court denied the successive § 2255 motion, relying on Eleventh Circuit precedent (Ovalles I) that Johnson did not apply to § 924(c)(3)(B), but granted a COA on whether Johnson applies to § 924(c)(3)(B).
- After the district ruling, the Supreme Court decided Sessions v. Dimaya and the Eleventh Circuit reheard Ovalles en banc (Ovalles II), which held the residual clause could be saved by a conduct-based interpretation and therefore was not unconstitutionally vague.
- Post-Ovalles II, this Court has held a Johnson/Dimaya vagueness challenge to § 924(c)(3)(B) cannot satisfy § 2255(h)(2) because it does not supply a new, retroactive rule of constitutional law. The panel in Solomon’s appeal applied that controlling precedent and affirmed the district court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Johnson’s vagueness holding invalidates § 924(c)(3)(B)’s residual clause | Solomon: Johnson (and by extension Dimaya) renders § 924(c)(3)(B) unconstitutionally vague, so his § 924(c) conspiracy conviction is invalid | Government: Ovalles I (and later Ovalles II) forecloses that reading; § 924(c)(3)(B) can be saved and is not void for vagueness | Court: Affirmed—§ 924(c)(3)(B) is not unconstitutionally vague under controlling Eleventh Circuit precedent (Ovalles II); Johnson/Dimaya do not supply a new rule under § 2255(h)(2) |
| Whether the district court erred in relying on prior panel (Ovalles I) while mandate/potential en banc rehearing or Dimaya were pending | Solomon: District should not rely on Ovalles I because the mandate was withheld and Dimaya might alter the analysis | Government: Ovalles I remained controlling at the time; subsequent en banc Ovalles II and post-Ovalles decisions confirm the result | Court: No error—the district court’s denial is correct under controlling precedent; Ovalles II and Garrett confirm the outcome |
| Whether Hobbs Act conspiracy independently fails to qualify under § 924(c)(3)(B) because it requires no overt act and poses no risk | Solomon: Risk arises from the object offense, not from conspiracy itself; conspiracy (without overt act) poses no substantial risk for § 924(c)(3)(B) | Government: Issue was outside the narrow grant of authorization and is foreclosed by precedent holding Hobbs Act robbery/crimes of violence under § 924(c) | Court: Court did not decide this collateral statutory claim on the merits; even generously read, statutory challenges do not satisfy § 2255(h) post-Ovalles II/Garrett |
| Scope of the district court’s review after authorization to file a successive § 2255 | Solomon: (implicit) district court should review merits de novo and consider all arguments | Government: District court must decide § 2255(h) requirements de novo but is limited to the claims authorized | Court: District court correctly applied de novo review to § 2255(h) and properly concluded § 2255(h)(2) was not satisfied; authorization is narrow and does not permit a broader second § 2255 |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidated ACCA residual clause for vagueness)
- Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (held INA § 16(b) residual clause unconstitutionally vague under categorical approach)
- Ovalles v. United States (en banc), 905 F.3d 1231 (11th Cir. 2018) (en banc) (adopted conduct-based saving construction of § 924(c)(3)(B); residual clause not void for vagueness)
- In re Garrett, 908 F.3d 686 (11th Cir. 2018) (holding Johnson/Dimaya do not supply a new, retroactive rule supporting § 2255(h)(2) relief as to § 924(c)(3)(B))
- In re Saint Fleur, 824 F.3d 1337 (11th Cir. 2016) (held Hobbs Act robbery is a crime of violence under § 924(c)(3)(A))
- United States v. St. Hubert, 909 F.3d 335 (11th Cir. 2018) (reaffirmed that Hobbs Act robbery qualifies under § 924(c)(3)(A))