In re Colon, 826 F.3d 1301

Edgar Colon filed two applications seeking authorization to file a second or successive 28 U.S.C. § 2255 motion, asserting a Johnson-based challenge to his § 924(c) sentence.
Colon pleaded guilty to conspiracy to commit Hobbs Act robbery (Count 1), aiding and abetting a Hobbs Act robbery (Count 2), and aiding and abetting the carrying/brandishing of a firearm during a crime of violence in violation of § 924(c) (Count 3).
Colon argues Johnson v. United States (invalidating the ACCA residual clause) and Welch (making Johnson retroactive) undermine the § 924(c)(3)(B) residual-clause basis for his § 924(c) conviction.
He was not sentenced under the ACCA; his sentence (141 months) is below ACCA’s 180-month floor. His § 924(c) sentence was consecutive for brandishing a firearm.
The panel held Colon’s underlying aiding-and-abetting Hobbs Act robbery qualifies as a “crime of violence” under § 924(c)(3)(A) (the use-of-force/elements clause), so his § 924(c) sentence stands even if Johnson invalidates § 924(c)(3)(B).
The applications for authorization to file a second or successive § 2255 motion were denied for failing to make a prima facie showing that Johnson renders his § 924(c) sentence invalid.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Johnson’s invalidation of the ACCA residual clause authorizes a successive § 2255 to attack a § 924(c) sentence	Colon: Johnson/Welch apply to § 924(c)(3)(B) and thus his Hobbs Act–based § 924(c) conviction no longer qualifies as a crime of violence	Government: Even if § 924(c)(3)(B) is invalid, Colon’s aiding-and-abetting Hobbs Act robbery qualifies under § 924(c)(3)(A), so Johnson does not help Colon	Denied: Colon failed to make a prima facie showing because his underlying Hobbs Act aiding-and-abetting conviction meets § 924(c)(3)(A)
Whether an aiding-and-abetting Hobbs Act robbery can qualify as a § 924(c) “crime of violence” under the elements/use-of-force clause	Colon: Aider-and-abettor may be convicted without personally using/threatening force, so § 924(c)(3)(A) may not apply	Government: Under § 2, an aider-and-abettor is punishable as a principal; therefore the underlying Hobbs Act robbery has the use-of-force element required by § 924(c)(3)(A)	Held: Aiding-and-abetting Hobbs Act robbery qualifies under § 924(c)(3)(A) per precedent (In re Saint Fleur and Williams), so § 924(c) sentence valid

Johnson v. United States, 135 S. Ct. 2551 (2015) (held ACCA residual clause void for vagueness)
Welch v. United States, 136 S. Ct. 1257 (2016) (held Johnson announced a new substantive rule retroactive on collateral review)
In re Saint Fleur, 824 F.3d 1337 (11th Cir. 2016) (held substantive Hobbs Act robbery qualifies under § 924(c)(3)(A))
In re Pinder, 824 F.3d 977 (11th Cir. 2016) (granted authorization to file successive § 2255 where § 924(c)(3)(B) issue unresolved; distinguished conspiracy-based cases)
United States v. Williams, 334 F.3d 1228 (11th Cir. 2003) (aider-and-abettor is punishable as principal; acts of principal attributed to aider-and-abettor)
United States v. Sosa, 777 F.3d 1279 (11th Cir. 2015) (describing aiding and abetting under § 2)
Jordan v. Secretary, Department of Corrections, 485 F.3d 1351 (11th Cir. 2007) (standard for prima facie showing in successive-application authorization)
Owens v. United States, 672 F.3d 966 (11th Cir. 2012) (distinguishing ACCA clauses and explaining clause terminology)
Rosemond v. United States, 134 S. Ct. 1240 (2014) (explaining scope of aider-and-abettor liability relative to elements)
Bailey v. United States, 516 U.S. 137 (1995) (defining “use” of a firearm requires active employment)