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Ovalles v. United States

United States Court of Appeals, Eleventh Circuit

October 9, 2018

IRMA OVALLES, Petitioner-Appellant,
v.
UNITED STATES OF AMERICA, Respondent-Appellee.

          Appeal from the United States District Court for the Northern District of Georgia D.C. Docket Nos. 1:16-cv-02392-TWT; 1:10-cr-00305-TWT-RGV-1

          Before TJOFLAT, WILLIAM PRYOR and HULL, Circuit Judges.

          PER CURIAM

         The en 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 clause. Id.

         After 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.

         The en 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.

         I. BACKGROUND

         In a 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.[1] 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.

         Only 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.

         The PSI 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.

         In 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 appealed.

         II. DISCUSSION

         Section 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 ...

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