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Thompson v. United States

United States Court of Appeals, Eleventh Circuit

May 17, 2019

RICKEY THOMPSON, Petitioner-Appellant,
v.
UNITED STATES OF AMERICA, Respondent-Appellee.

          Appeal from the United States District Court for the Southern District of Florida D.C. Docket Nos. 9:16-cv-81071-WPD, 9:07-cr-80036-WPD-1

          Before WILLIAM PRYOR, GRANT and HULL, Circuit Judges.

          HULL, CIRCUIT JUDGE

         Rickey 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.

         After 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.[1]

         I. BACKGROUND

         A. Convictions, Direct Appeal, and First § 2255 Motion

         In 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.

         Based 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 another, or
(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.

         Thompson 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).

         B. Authorized Second ...


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