In re Chance
831 F.3d 1335
| 11th Cir. | 2016Background
- Devon Chance was convicted of conspiracy to commit Hobbs Act robbery (Count 1), conspiracy to possess a firearm in relation to a crime of violence (18 U.S.C. § 924(o), Count 2), six substantive Hobbs Act robbery counts, and six corresponding § 924(c) counts; total sentence = 1,794 months plus $1,400 in fines.
- Johnson v. United States invalidated the Armed Career Criminal Act’s (ACCA) residual clause as unconstitutionally vague; Chance sought authorization to file a second/successive 28 U.S.C. § 2255 motion relying on Johnson.
- To file a successive § 2255 motion, a movant must make a prima facie showing that the claim relies on a new rule made retroactive by the Supreme Court (28 U.S.C. § 2255(h)(2)).
- The Eleventh Circuit previously held that Johnson may apply to the § 924(c)(3)(B) residual clause (In re Pinder) but held substantive Hobbs Act robbery still qualifies under § 924(c)’s elements clause (In re Saint Fleur).
- Chance’s Count 2 (§ 924(o) conspiracy) was based on conspiracy to commit Hobbs Act robbery (the companion conviction that Pinder called into question), while the substantive Hobbs Act robbery counts still qualify under the elements clause.
- The Court granted authorization to file a successive § 2255 as to Count 2, finding Chance made a prima facie showing under § 2255(h); the decision leaves the merits and all other determinations to the district court to decide de novo.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Johnson’s rule applies to § 924(c)(3)(B) residual clause | Johnson invalidates § 924(c)’s residual clause; so § 924(c) may no longer authorize Chance’s sentence | Circuit’s prior uncertainty means Johnson may not control § 924(c) immediately | Court treats Johnson as potentially applicable (Pinder) and authorizes filing to let district court decide merits de novo |
| Whether Chance made prima facie showing to authorize a successive § 2255 under § 2255(h) | Count 2 relied on conspiracy to commit Hobbs Act robbery, a conviction that may no longer qualify after Johnson, so prima facie showing met | Government contests but circuit precedent (Pinder) supports authorization | Authorization granted as to Count 2; district court to adjudicate merits |
| Whether substantive Hobbs Act robbery convictions still qualify as crimes of violence under § 924(c) | Chance conceded or could not overcome that substantive Hobbs Act robbery fits the elements clause | Government: substantive Hobbs Act robbery qualifies under elements clause | Court follows In re Saint Fleur: substantive Hobbs Act robbery counts still qualify and support corresponding § 924(c) convictions |
| Standard for district court factfinding about whether judge relied on the residual clause at sentencing | Movant: district court need not require proof the sentencing judge expressly relied on the residual clause; focus should be whether the offense categorically qualifies after Johnson | Government/Moore dicta: district court must determine whether defendant was "sentenced under the residual clause" and require movant to prove sentencing reliance | Court rejects Moore dicta as binding; holds district court should apply governing precedent (categorical approach) and need not insist on sentencing judge’s wording; de novo review at district court required |
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 retroactive on collateral review)
- In re Pinder, 824 F.3d 977 (11th Cir. 2016) (recognized Johnson may invalidate § 924(c)(3)(B) residual clause)
- In re Saint Fleur, 824 F.3d 1337 (11th Cir. 2016) (held substantive Hobbs Act robbery qualifies under § 924(c) elements clause)
- In re Gordon, 827 F.3d 1289 (11th Cir. 2016) (construing Saint Fleur as not conflicting with Pinder)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (Supreme Court guidance on the categorical approach)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (further Supreme Court interpretation of the categorical approach)
- Pinkus v. United States, 436 U.S. 293 (1978) (concurrent sentence doctrine and pecuniary interest in separate counts)