from the United States District Court for the Northern
District of Georgia D.C. Docket Nos. 1:16-cv-02392-TWT;
TJOFLAT, WILLIAM PRYOR and HULL, Circuit Judges.
banc Court remanded this appeal to the panel for further
proceedings. Ovalles v. United States, ___F.3d___,
2018 WL 4830079, at *18 (11th Cir. Oct. 4, 2018) (Ovalles
II). In 2017, our initial panel opinion affirmed the
district court's denial of Irma Ovalles's 28 U.S.C.
§ 2255 motion to vacate her 18 U.S.C. § 924(c)
conviction and sentence for using and carrying a firearm
during a crime of violence, namely, attempted carjacking.
Ovalles v. United States, 861 F.3d 1257, 1267-69
(11th Cir. 2017) (Ovalles I). The panel opinion held
that Ovalles's attempted carjacking conviction qualified
as a crime of violence under both § 924(c)(3)(B)'s
residual clause and § 924(c)(3)(A)'s elements
Sessions v. Dimaya, 584 U.S.___, 138 S.Ct. 1204
(2018), this Court vacated the panel opinion and took the
case en banc. The Court en banc then held that: (1) §
924(c)(3)(B)'s residual clause is not unconstitutionally
vague; (2) we determine whether a predicate offense qualifies
under that residual clause by using a conduct-based approach;
and (3) given the admitted conduct, Ovalles's attempted
carjacking conviction qualifies under §
924(c)(3)(B)'s residual clause. Ovalles, ___F.3d
at___, 2018 WL 4830079, at *1-2, 11-18.
banc Ovalles II decision remanded this appeal to the
panel to decide all other issues. We now do so by reinstating
our ruling in Ovalles I insofar as it held that
Ovalles's attempted carjacking conviction qualifies as a
crime of violence under § 924(c)(3)(A)'s elements
clause. We summarize what Ovalles I said and include
additional analysis along the way.
2010 written plea agreement, Ovalles pled guilty to six
crimes: (1) a Hobbs Act robbery; (2) three carjackings; (3)
an attempted carjacking; and (4) using and carrying a firearm
during that attempted carjacking. At the plea hearing, the
government's factual proffer, which Ovalles admitted,
detailed how Ovalles and others committed at gunpoint a
robbery, three carjackings, and an attempted carjacking
between December 12, 2008 and December 14, 2008.
the attempted carjacking and the firearm crime during that
carjacking are relevant to this appeal. As to those counts,
the presentence investigation report ("PSI")
reported, as did the government's factual proffer, that
on December 14, 2008, Ovalles and other gang members stopped
a minivan by displaying firearms. The robbers ordered the
driver and his daughter out of the vehicle. One robber hit
the daughter with a baseball bat. They took the victims'
money and cell phones at gunpoint. As the victims ran away,
one robber fired several rounds from an AK-47 rifle in their
direction. When a bystander fired back at the robbers, they
fled in a pick-up truck. Our en banc opinion recounts
Ovalles's crimes in more detail. Ovalles II,
___F.3d___ at; 2018 WL 4830079, at *2-3.
grouped the robbery, the three carjackings, and the attempted
carjacking, yielding an advisory guidelines range of 108 to
135 months' imprisonment. As to the § 924(c) firearm
crime, Ovalles's advisory guidelines sentence was a
consecutive ten years' imprisonment, the statutory
minimum. Without objection, the district court adopted the
PSI's facts and guidelines calculations. The district
court imposed 108-month concurrent sentences on Ovalles's
robbery, three carjackings, and attempted carjacking and a
120-month consecutive sentence on her § 924(c) firearm
crime. Ovalles did not appeal.
2016, Ovalles pro se filed her § 2255 motion to
vacate her § 924(c) conviction and sentence. After the
court appointed counsel, Ovalles filed an amended § 2255
motion, which the district court denied. Ovalles timely
924(c) provides for a mandatory consecutive sentence for any
defendant who uses or carries a firearm during a crime of
violence. 18 U.S.C. § 924(c)(1). "Crime of
violence" means an offense that is a felony and:
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or ...