In Re: Devon Chance

Case: 16-13918 Date Filed: 08/02/2016 Page: 1 of 15

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Nos. 16-13918-J, 16-14643-J IN RE: DEVON CHANCE,

Petitioner.

Application for Leave to File a Second or Successive Motion to Vacate, Set Aside, or Correct Sentence,28 U.S.C. § 2255(h)

Before TJOFLAT, WILSON,and JILL PRYOR,Circuit Judges. JILL PRYOR,Circuit Judge:

Devon Chance seeks authorization to file a 28 U.S.C.§ 2255 motion based on

Johnson v. United States^ 135 S. Ct. 2551 (2015). Because Mr. Chance already filed one § 2255 motion, his new motion must be "certified as provided in section 2244 by a panel ofthe appropriate court of appeals to contain ...a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court,that was previously unavailable."^ 28 U.S.C. § 2255(h)(2). "The court of

The rule announced in Johnson is retroactively applicable to cases on collateral review.

Case: 16-13918 Date Filed: 08/02/2016 Page: 2 of 15

appeals may authorize the filing ofa second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements ofthis subsection." Id. § 2244(b)(3)(C). Mr. Chance was sentenced under 18 U.S.C. § 924(c), which requires a longer

prison sentence whenever a defendant uses a firearm during a "crime ofviolence or drug trafficking crime." 18 U.S.C. § 924(c)(1)(A). The statute provides more than one definition of"crime of violence," including a felony "that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course ofcommitting the offense. Id. § 924(c)(3)(B). Mr. Chance contends this definition,the so-called "residual clause" of§ 924(c),^ is unconstitutional in light ofJohnson, which held that the phrase "involves conduct that presents a serious potential risk of physical injury to another"—the "residual clause" in 18 U.S.C. § 924(e)(2)(B)(ii)—is unconstitutionally vague. Recently, we ruled that Johnson^s holding may invalidate the very similar § 924(c)(3)(B)residual clause. See In re Pinder, No. 16-12084, — F.3d _,2016 WL 3081954, at *2(11th Cir. June 1,2016). At the same time, we recognized that

Welch V. United Statesy 136 S. Ct. 1259(2016). 2 An offense also qualifies as a "crime of violence" under § 924(c)if it"has as an element the use,attempted use, or threatened use ofphysical force against the person or property of another." 18 U.S.C. § 924(c)(3)(A). This definition is known as the "elements clause or the **use-of-force clause."

Case: 16-13918 Date Filed: 08/02/2016 Page: 3 of 15

the "law is unsettled" on this question and left it to the district court to decide in the first instance what effect Johnson had on § 924(c)'s residual clause. Id, Pinder

involved a § 924(c)sentence that was based on the companion conviction of conspiracy to commit Hobbs Act robbery. I.

Mr. Chance was, like Mr.Pinder, convicted of conspiracy to commit Hobbs

Act robbery(Count 1). This conviction served as a companion to a conviction for conspiracy to possess a firearm during and in relation to a crime of violence,in violation of 18 U.S.C. § 924(o)(Count 2). Mr. Chance was also convicted ofsix counts ofsubstantive Hobbs Act robbery(Counts 26,28,30,32,34,and 36),

accompanied by six counts of possession ofa firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(Counts 25,27,29,31,33, and 35). The sentencing court imposed a total sentence of 1,794 months' imprisonment.

After we decided that conspiracy to commit Hobbs Act robbery might not qualify as a valid companion conviction to a § 924(c)conviction after Johnson, we held that the substantive offense ofHobbs Act robbery still qualifies as a valid companion conviction notwithstanding Johnson. See In re Saint Fleur,No. 16-12299, _F.3d__,2016 WL 3190539, at *3-4(11th Cir. June 8,2016). The

Case: 16-13918 Date Filed: 08/02/2016 Page: 4 of 15 Saint Fleur panel noted the indictment charged that Mr. Saint Fleur committed Hobbs Act robbery as defined in 18 U.S.C. § 1951(b)(1)and did so "by means of actual and threatened force, violence, and fear ofinjury," which satisfied § 924(c)'s elements clause. Id. at 3. As to the Hobbs Act robberies and corresponding § 924(c)convictions in Counts 25 through 36, here, as in Saint Fleur, Mr. Chance's indictment stated that he committed robbery as defined in 18 U.S.C. § 1951(b)(1), "by means ofactual and threatened force, violence, and fear ofinjury." Thus,as in Saint Fleur, Mr. Chance's companion convictions for Hobbs Act robbery still qualify as crimes of violence and support his § 924(c)convictions in Counts 25,27, 29,31,33,and35. SeeInreGordon,^os. 16-13681 & 16-13803, F.3d ^,2016 WL 3648472,at *4(11th Cir. July 8,2016)(concluding that this Court's decision in Saint Fleur did not conflict with its decision in Finder).

Finder, however, governs Mr. Chance's § 924(o)conspiracy to possess a firearm during and in relation to a crime of violence conviction because its companion conviction was conspiracy to commit Hobbs Act robbery. Under Finder, Mr. Chance's Count 1 conviction for conspiracy to commit Hobbs Act

robbery may no longer be a valid companion to his Count 2 conviction in light of Johnson. He therefore has made a prima facie showing that his request to file a

§ 2255 motion satisfies § 2255(h)as to his Count 2 conviction.

Case: 16-13918 Date Filed: 08/02/2016 Page: 5 of 15

Mr. Chance's 1,794-month sentence consisted ofconcurrent 210-month sentences on Counts 1 and 2, as well as the other substantive Hobbs Act robbery convictions; an 84-month sentence on one ofthe § 924(c)convictions(Count 26),to be served consecutively; and 300-month sentences on Counts 28,30,32,34,and 36

(the other § 924(c)convictions), to be served consecutively to each other and to all other sentences. But"the sentences on [Counts 1,2,25, 27,29,31,33, and 35]

were not in fact fully concurrent." Pinkus v. United States^ 436 U.S. 293,304 (1978). That is because, although the terms ofimprisonment were concurrent,"the $[1]00 fines on each ofthe counts were cumulative, totaling $[800], so that a separate fine of$[1]00 was imposed on" both Count 1 and Count 2. Id. at 304-05. With an additional $100 fine for the other counts(with consecutive terms of

imprisonment), Mr. Chance's total fine was $1400. "Petitioner thus had at least a pecuniary interest in securing review of his conviction on each ofthe counts. Id. Thus,this case is unlike In re Williams, Nos. 16-13013,16-13232, F.3d ,2016 WL 3460899(11th Cir. June 24,2016), in which this Court recently relied on a '"rule ofjudicial convenience,"'the concurrent sentence doctrine,Benton v. Maryland,395 U.S. 784,791(1969),to deny a request to file a § 2255 motion based

Case: 16-13918 Date Filed: 08/02/2016 Page: 6 of 15 on Johnson even though the applicant had made the requisite prima facie showing under § 2255(h).^ Accordingly, we grant Mr. Chance's request for authorization.

As usual, nothing about our ruling here binds the district court, which must decide every aspect ofthe case "jfresh, or in the legal vernacular, de novo" Jordan V. Sec'y, Dep't ofCorr.,485 F.3d 1351, 1358(11th Cir. 2007). "And when we say every aspect, we mean every aspect." In re Jackson, F3d. ,2016 WL 3457659,at *6(11th Cir. June 24,2016). This includes the merits of Mr. Chance's motion, along with any other issues that may arise.

II.

Although our published opinions repeatedly have emphasized that the district court is to consider Mr. Chance's § 2255 motion de novo, in the whirl oforders addressing Johnson,a recent published order jOrom this Court discussed in dicta what districts courts purportedly "must" do in adjudicating Johnson claims in § 2255(h) motions. In re Moore,No. 16-13993, F.3d ,2016 WL 4010433,at *3-4(11th

^ In Williams,the concurrent term ofimprisonment was a mandatory minimum sentence of life and was wholly unrelated to Mr. Williams's Johnson-diffcctQd sentence. 2016 WL 3460899, at *4;see In re Davis,Nos. 16-13779,16-14615, F.3d 2016 WL 4070987,at *2(11th Cir. July 13,2016)(granting a request to file a § 2255 motion when an applicant had a concurrent sentence that"was neither mandatory nor unrelated to his[Armed Career Criminal Act]sentence" (internal quotation marks omitted)). Here, not only were the sentences "not in fact fully concurrent," Pinkus,436 U.S. at 304, but the concurrent term ofimprisonment, p in Davis, was not dictated by a mandatory minimum. Moreover,the sentencing court's decision on the length ofimprisonment for the concurrent terms likely was informed by Counts 1 and 2. For these additional reasons, we will not apply the concurrent sentence doctrine to deny Mr. Chance relief. See Davis,slip op. at 4.

Case: 16-13918 Date Filed: 08/02/2016 Page: 7 of 15

Cir. July 27,2016). Like we have here,the Moore panel acknowledged that"the district court is to decide the § 2255(h)issues fresh, or in the legal vernacular,de

novo" Id. at *3 (internal quotation marks omitted and alteration adopted). But in the very next sentence, the Moore panel seemed to contradict that instruction by telling the district court that it"must decide whether or not Moore was sentenced under the residual clause in 2000."^^ Id. The panel then added "one further

thought," also in the form ofa command about whatthe district court can and cannot do: that"the district court cannot grant relief in a § 2255 proceeding unless the

movant...proves that he was sentenced using the residual clause." Id. at *4. The Moore panel phrased its commentary in terms of what courts "must" and "cannot" do, but that commentary undoubtedly is dicta. The Moore panel acknowledged as much with its preceding quote from Jordan. See id. at *3. Critically, when an inmate asks a court of appeals to certify a second or successive § 2255 motion,§ 2255(h)is our sole source ofauthority to do or say anything in the case. That means any discussion oftopics beyond "the § 2255(h)issues" is

^ Mr. Moore was arrested, tried, and sentenced in 2005,so he could not have been "sentenced under the residual clause in 2000." We assume the panel meant 2005. Thistle of error is probably among the smaller ones our Court has made in our"massive effort to decide the merits ofhundreds ofhabeas cases within 30 days each,all over a span ofjust a few weeks." In re Clayton,No. 16-14556 F.3d _,2016 WL 3878156(11th Cir. July 18,2016),at *1(M^n,J., concurring). By pointing out an error by the Moore panel, we in no way mean to imply that we ourselves are not making mistakes, both large and small,in deciding these motions under the Ume and other constraints that are imposed upon us at the request-for-authorization stage. See injra Part III.

Case: 16-13918 Date Filed: 08/02/2016 Page: 8 of 15 irrslcvant to a. case and therefore dicta. Jic/.(Internal quotation marks omitted),s€€

Edwards v. Prime,Inc.,602 F.3d 1276,1298(11th Cir. 2010); also United States V. Hunter, 172 F.3d 1307, 1310(11th Cir. 1999)(Games,J., concurring)("The holdings ofa prior decision can reach only as far as the facts and circumstances presented to the Court in the case which produced that decision."). Indeed, Moore's discussion of what the district court must do followed its case-dispositive conclusion that Mr. Moore made a prima facie showing. That subsequent dicta does not bind either the district court,see Jordan,485 F.3d at 1358, or a merits panel if an appeal is filed. As our ChiefJudge recently said about another order certifying a Johnson motion:"[s]hould an appeal be filed from the district court's determination, nothing in this order shall bind the merits panel m the appeal. Nothing." In re Gomez,No. 16-14104,_ F.3d —,2016 WL 3971720,at *4(11th Cir. July 25,2016)(Games,C.J.,concurring)(intemal quotation marks and citation omitted).

Not only is Moore's dictajust that—dicta—^but it also seems quite wrong. Ofcourse, we recognize that what we are about to say has no more legal force than the Moore panel's commentary(that is: none). But we also appreciate the challenging task that district courts in our circuit face in dealing with Johnson issues, with hundreds ofinmates trying to file § 2255 claims and new published

Case: 16-13918 Date Filed: 08/02/2016 Page: 9 of 15 certification opinions coming from our Court almost every day in the recent weeks. On top ofthat, Johnson and Welch together make for the "rare case in which th[e Supreme] Court announces a new rule ofconstitutional law and makes it retroactive within one year." Dodd v. United States^ 545 U.S.353,359(2005). Indeed, Welch

is the Supreme Court's first ever § 2255 case to make a new rule ofconstitutional law retroactive less than a year after the rule was announced. Because this situation

is so rare, there is very little authority on how to analyze the application of a"new rule" ofthat kind. For that reason, we feel a need to tell the other side ofthe story told in Moore.

Moore suggests that the district court must make the.inmate prove"whether or not[he] was sentenced under the residual clause." Moore,2016 WL 4010433,at *3. We think this is wrong,for two reasons.

First, it implies that the districtjudge deciding Mr.Chance's upcoming § 2255 motion can ignore decisions from the Supreme Court that were rendered since that time in favor ofa foray into a stale record. Assuming that Johnson does apply to § 924(c)'s"very similar" residual clause,see Pinder,2016 WL 3081954,at *2,then district courts must determine "*categorically'—^that is, by reference to the elements ofthe offense, and not the actual facts of[the defendant's] conduct"—whether that offense qualifies as a crime of violence. United States v. McGuire,706 F.3d 1333,

Case: 16-13918 Date Filed: 08/02/2016 Page: 10 of 15 1336(11th Cir. 2013). In other words, if only § 924(c)'s elements clause remains standing after Johnson^ then a crime must"ha[ve] as an element the use, attempted use, or threatened use of physical force" to support a § 924(c)conviction. 18 U.S.C.924(c)(3)(A). In applying the categorical approach, it would make no sense for a district court to have to ignore precedent such as Descamps v. United States,

133 S. Ct. 2276(2013), dinAMathis v. United States, 136 S. Ct. 2243(2016), which are the Supreme Court's binding interpretations ofthat approach. And yet, the Moore panel suggested that the sentencing court must ignore that precedent unless the sentencing judge uttered the magic words "residual clause."

Applying the categorical approach,the Eleventh Circuit or Supreme Court may determine that conspiracy to commit Hobbs Act robbery lacks "as an element the use, attempted use, or threatened use of physical force." 18 U.S.C. § 924(c)(3)(A). Such a determination necessarily would mean that this conspiracy conviction could only have counted as a crime of violence under the residual clause in the past, irrespective of what the sentencing judge said or did not say. In other words,such a ruling would be conclusive proofthat"[the defendant] was sentenced using the residual clause." Moore,2016 WL 4010433,at *4. Under the Moore panel's rule, however, a defendant could not benefit from that binding precedent except in the rare instances where the sentencing judge thought to make clear that

Case: 16-13918 Date Filed: 08/02/2016 Page: 11 of 15 she relied on the residual clause. That is not right.

There is a second problem with Moore's command that an inmate must prove whether the district court used the words "residual clause" at his potentially decades-old sentencing. Nothing in the law requires a judge to specify which clause of§ 924(c)—^residual or elements clause—^it relied upon in imposing a sentence. Mr. Chance's own case is a prime example ofhow unworkable the Moore panel's proposed rule is(and it is only a proposal, not precedent). Mr. Chance's superseding indictment charged him with conspiracy to use or carry a firearm during and in relation to a crime of violence,"in violation of... Section

924(c)(1)(A), all in violation of... Section 924(o)." No mention ofthe residual or elements clause there. And even ifthere were, it would not prove that the

sentencing judge "sentenced [the defendant] using the residual clause." Mr. Chance'sjudgment ofconviction simply lists the statute under which he was convicted,§ 924(o), so we cannot glean helpful information there either. And, doubtlessly unaware that the sentencing transcript would later be combed for the words "elements clause" or "residual clause," the sentencing judge failed to utter

those phrases.

Suppose now that another inmate received an identical § 924(c)or § 924(o) sentence as Mr. Chance on the same afternoon from the exact same sentencing

Case: 16-13918 Date Filed: 08/02/2016 Page: 12 of 15

judge. Only this time,the sentencingjudge thought to mention that she was sentencing the defendant under § 924(c)'s residual clause. Based on the rule the Moore panel proposed, that inmate would be eligible for § 2255 relief based solely on a chance remark(again, a sentencing court was nowhere required to choose between the elements and residual clause). Surely this "selective application of

new rules violates the principle oftreating similarly situated defendants the same. league v. Lane,489 U.S. 288,304(1989)(intemal quotation marks omitted). In our view, it makes no difference whether the sentencing judge used the words "residual clause" or "elements clause," or some similar phrase. IfJohnson

means that an inmate's § 924(c)(or § 924(o))companion conviction should not have served as such,then the text of§ 924(c)no longer authorizes his sentence and his imprisonment is unlawfiil. More specifically, a conclusion that Johnson s rule applied to § 924(c)'s residual clause would mean that inmate's sentence was lawful up until the day Johnson was decided,but no longer is. To be sure,the inmate is the one who has to make the showing that his sentence is now unlawful. But we believe the required showing is simply that § 924(c) may no longer authorize his sentence as that statute stands after Johnson—^not proofof what the judge said or thought at a decades-old sentencing. No matter what the judge said, it is precedent from the Supreme Court and this Court that dictates which offenses meet § 924(c)'s

Case: 16-13918 Date Filed: 08/02/2016 Page: 13 of 15 definitions. See Rivers v. Roadway Express,Inc., 511 U.S. 298,312—13(1994)("It

is this Court's responsibility to say what a statute means,and once the Court has spoken, it is the duty ofother courts to respect that understanding ofthe governing rule oflaw. Ajudicial construction ofa statute is an authoritative statement ofwhat the statute meant before as well as after the decision ofthe case giving rise to that construction.^^(emphasis added)). So,ifthe Supreme Court has said an inmate s conviction does not meet one ofthe definitions that survive Johnson,then the inmate may have a plaim that he has "the right to be released upon the ground that the sentence was imposed in violation ofthe Constitution or laws ofthe United States.. .or that the sentence was in excess ofthe maximum authorized by law." 28 U.S.C. § 2255(a).' III.

In sum,when Mr.Chance's § 2255 motion is filed in the district court,the district court should hear fi'om the parties and apply the law to the facts as it thinks best. The Moore opinion lays out one option. This one lays out another. Of

'In dicta in another recent Johnson case,our Court suggested thatjudges can i^ote Descamps when ruling on Johnson motions because "[i]t wodd be arbitr^ nermit petitioners who now can cite Johnson to pursue second or successive § M55 motioM bSto^enhancements are only ultimately invalidated by ^scamps,noUo^on at^ See In re Hires,No. 16-12744,2016 WL 3342668,at *5 n.4(11th Cir. June 15,2016). Jhis'^ea troubles us Nothing requires courts to construe federal statutes against an iimate bas^ on a the other direction. Also,an inmate's sentence that was valid up unUl the moment Johnson was decided was not"only ultimately invalidated by13Descamps,"id,it was invalidated by Johnson.

Case: 16-13918 Date Filed: 08/02/2016 Page: 14 of 15 course, both cases were decided based on a few lines in a form filled out by an inmate, with no input from a lawyer, within 30 days offiling, and in a crush ofclose to two thousand similar applications. See Clayton, 2016 WL 3878156, at *8

(Martin, J., concurring);In re Jones, No. 16-14053, F.3d ,2016 WL 4011143, at *1-10(11th Cir. July 27,2016)(Rosenbaum and Jill Pryor, JJ., concurring in

result). Or perhaps there is another approach out there that neither we nor the Moore panel has considered. That too is up to the district court to decide "fresh, or in the legal vernacular, de novo" Jordan,485 F.3d at 1358. And,as always, whatever

determination that the district court makes about whether Mr.[Chance] has satisfied the requirements for filing a second or successive motion, and any determination it makes on the merits, if it reaches the merits, is subject to review on appeal from a final judgment or order if an appeal is filed. Should an appeal be filed from the district court[']s determination,nothing in this order shall bind the merits panel in that appeal.

In re Moss,703 F.3d 1301,1303(11th Cir. 2013).

APPLICATION GRANTED.

Case: 16-13918 Date Filed: 08/02/2016 Page: 15 of 15 TJOFLAT,Circuit Judge: I concur in the granting ofthe application.