Case: 18-14937 Date Filed: 11/01/2019 Page: 1 of 6 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 18-14937 Non-Argument Calendar ________________________ D.C. Docket Nos. 2:16-cv-00394-WKW-SRW, 2:06-cr-00021-WKW-SRW-1 MARCUS RASHAWN SMITH, Petitioner-Appellant, versus UNITED STATES OF AMERICA, Respondent-Appellee. ________________________ Appeal from the United States District Court for the Middle District of Alabama ________________________ (November 1, 2019) Before MARCUS, ROSENBAUM and BLACK, Circuit Judges. PER CURIAM: Case: 18-14937 Date Filed: 11/01/2019 Page: 2 of 6 Marcus Rashawn Smith appeals the denial of his 28 U.S.C. § 2255 motion to vacate his convictions and sentences under 18 U.S.C. § 924(c). The district court granted a certificate of appealability (“COA”) on the issue of whether his § 924(c) convictions were unconstitutional in light of Johnson v. United States, 135 S. Ct. 2551 (2015), Sessions v. Dimaya, 138 S. Ct. 1204 (2018), and Ovalles v. United States, 905 F.3d 1231 (11th Cir. 2018) (en banc), abrogated by United States v. Davis, 139 S. Ct. 2319 (2019). On appeal, Smith argues his convictions for bank robbery under 18 U.S.C. § 2113(a) and (d) do not qualify as crimes of violence under either the elements or residual clauses of § 924(c). After review, 1 we affirm. As brief background, a federal grand jury indicted Smith in 2006 on two counts of bank robbery “by force and violence and by intimidation,” in violation of § 2113(a) and (d) (Counts One and Four), two counts of using, carrying, and brandishing a firearm during and in relation to a crime of violence, namely, the bank robberies alleged in Counts One and Four, in violation of § 924(c)(1) (Counts Two and Five), and two counts of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Counts Three and Six). 1 In a § 2255 proceeding, we review legal issues de novo and factual findings for clear error. Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004). The scope of our review of an unsuccessful § 2255 motion is limited to the issues enumerated in the COA. McKay v. United States, 657 F.3d 1190, 1195 (11th Cir. 2011). 2 Case: 18-14937 Date Filed: 11/01/2019 Page: 3 of 6 Pursuant to a plea agreement, Smith agreed to plead guilty to all counts in the indictment. According to the factual proffer, on two separate occasions, Smith “knowingly and willfully [took] by force and violence and by intimidation from the person or presence of person(s), money, belonging to and in the care, custody, control, management, and possession of Banc Corp South Bank” and “did knowingly use and carry and brandished a firearm during and in relation to a bank robbery, a crime of violence which is punishable by a term of imprisonment of more than one (1) years.” Section 924(c) provides for a mandatory consecutive sentence for any defendant who uses a firearm during a crime of violence or a drug-trafficking crime. 18 U.S.C. § 924(c)(1). Under § 924(c), “crime ...
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