from the United States District Court for the Southern
District of Florida D.C. Docket Nos. 9:16-cv-81071-WPD,
WILLIAM PRYOR, GRANT and HULL, Circuit Judges.
Thompson, a federal prisoner proceeding with counsel, appeals
the district court's denial of his authorized second 28
U.S.C. § 2255 motion to vacate. In this appeal, Thompson
argues that his two 18 U.S.C. § 924(c) firearm
convictions are invalid in light of Johnson v. United
States, 576 U.S. ___, 135 S.Ct. 2551 (2015), and
Sessions v. Dimaya, 584 U.S. ___, 138 S.Ct. 1204
(2018). Specifically, Thompson contends that his predicate
second-degree murder offenses under 18 U.S.C. § 1111 do
not qualify as crimes of violence after Johnson.
careful review of the parties' briefs and the record, we
conclude Thompson's two federal second-degree murder
convictions qualify as crimes of violence under both §
924(c)'s residual and elements clauses. Thus, we affirm
the district court's denial of Thompson's authorized
second § 2255 motion.
Convictions, Direct Appeal, and First § 2255
2008, a federal jury convicted Thompson, a Bahamian boat
captain, and a codefendant of 30 counts arising out of a
drug- and alien-smuggling conspiracy. Relevant to this
appeal, during two boat trips in 2006, Thompson pointed a
firearm at passengers on the boat whom he had agreed to
smuggle into the United States. When the passengers said they
could not swim, Thompson forced them to jump, or pushed them,
from his boat into deep water off the coast of Jupiter
Island, Florida, where three of them drowned.
on this conduct, Thompson was convicted of three counts of
second-degree murder, in violation of 18 U.S.C. § 1111,
and two counts of carrying and brandishing a firearm during
and in relation to a crime of violence, in violation of 18
U.S.C. § 924(c)(1)(A)(ii). For the purposes of §
924(c), a "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 property of
(B) that by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the course of committing the offense.
18 U.S.C. § 924(c)(3)(A), (B). We refer to §
924(c)(3)(A) as the "elements clause" and §
924(c)(3)(B) as the "residual clause." Ovalles
v. United States, 905 F.3d 1231, 1234 (11th Cir. 2018)
(en banc) ("Ovalles II"). Here, as charged
in his indictment, Thompson's companion crimes of
violence: (1) for his § 924(c) firearm conviction in
Count 28 was his two second-degree murder convictions in
Counts 19 and 20 for the deaths of Roselyne Lubin and Alnert
Charles; and (2) for his § 924(c) firearm conviction in
Count 29 was his second-degree murder conviction in Count 21
for the death of Nigel Warren.
received a total life sentence on all 30 counts, including,
inter alia, three concurrent life sentences for the
second-degree murder offenses in Counts 19, 20 and 21, a
consecutive seven-year sentence for the first § 924(c)
firearm offense in Count 28, and a consecutive 25-year
sentence for the second § 924(c) firearm offense in
Count 29. On direct appeal, this Court affirmed
Thompson's convictions and sentences, United States
v. Thompson, 363 Fed.Appx. 737, 738 (11th Cir. Feb. 3,
2010), and later affirmed the district court's denial of
Thompson's first § 2255 motion, Thompson v.
United States, 608 Fed.Appx. 726, 727 (11th Cir. 2015).
Authorized Second ...