Case: 16-16676 Date Filed: 03/02/2020 Page: 1 of 5 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 16-16676 Non-Argument Calendar ________________________ D.C. Docket Nos. 5:16-cv-00422-WTH-PRL, 5:09-cr-00045-WTH-PRL-1 VICTOR JOHN WALKER, Petitioner - Appellant, versus UNITED STATES OF AMERICA, Respondent - Appellee. _______________________ Appeal from the United States District Court for the Middle District of Florida ________________________ (March 2, 2020) Case: 16-16676 Date Filed: 03/02/2020 Page: 2 of 5 Before MARTIN, GRANT, and LUCK, Circuit Judges. PER CURIAM: Victor John Walker, a federal prisoner proceeding with counsel, appeals the district court’s denial of his 28 U.S.C. § 2255 motion to vacate his sentence. He argues his conviction for carrying a firearm during a crime of violence is unconstitutional after Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015). After careful review, we affirm. I. In 2010, Walker pled guilty to conspiracy to commit Hobbs Act robbery, substantive Hobbs Act robbery, attempted Hobbs Act robbery, and two counts of carrying a firearm during a crime of violence under 18 U.S.C. § 924(c). Walker’s § 924(c) convictions were predicated on the substantive Hobbs Act robbery count and the attempted Hobbs Act robbery count. In 2016, Walker moved to vacate his sentence under 28 U.S.C. § 2255. He argued his § 924(c) convictions were invalid after the Supreme Court’s decision in Johnson. The district court denied him § 2255 relief. This Court granted a certificate of appealability (“COA”) in 2017 on the issue of “[w]hether Walker’s conviction for using and carrying a firearm during and in relation to the crime of violence of attempted Hobbs Act robbery is now unconstitutional after Johnson v. United States, 135 S. Ct. 2251 (2015).” 2 Case: 16-16676 Date Filed: 03/02/2020 Page: 3 of 5 II. When reviewing a district court’s denial of a 28 U.S.C. § 2255 motion, we review questions of law de novo and factual findings for clear error. Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (per curiam). III. Section 924(c) criminalizes the use or carrying of a firearm during and in relation to a crime of violence or drug trafficking crime. “Crime of violence” is defined as a felony offense that either (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). In United States v. Davis, 588 U.S. ___, 139 S. Ct. 2319 (2019), the Supreme Court struck down as unconstitutionally vague § 924(c)(3)(B), which has become known as the “residual clause.” 139 S. Ct. at 2336. In so doing, the Davis Court extended its holdings in Johnson, which struck down the Armed Career Criminal Act’s definition of a “violent felony,” 135 S. Ct. at 2557, and Sessions v. Dimaya, 584 U.S. ___, 138 ...
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