[DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-17658
                         Non-Argument Calendar
                       ________________________

               D.C. Docket Nos. 8:16-cv-01729-SCB-TGW,
                      8:11-cr-00309-SCB-TGW-1


JOSHUA MICHAEL WILKES,

                                                         Petitioner–Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                        Respondent–Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                            (January 27, 2020)



Before WILSON, GRANT, and LUCK, Circuit Judges.

PER CURIAM:
      Joshua Wilkes, a federal prisoner proceeding with counsel, appeals the

district court’s dismissal of his 28 U.S.C. § 2255 motion to vacate his sentence. A

single judge of this Court granted a certificate of appealability (COA) to Wilkes on

the following issues: “[(1)] [w]hether the District Court erred in concluding Mr.

Wilkes’s motion was untimely and [(2)] whether his convictions under 18 U.S.C.

§ 924(c), predicated on Hobbs Act robbery and carjacking, were unaffected by the

Supreme Court’s ruling in Johnson v. United States, 576 U.S. ___, 

(2015).” Wilkes argues that his § 2255 motion was timely under 28 U.S.C.

§ 2255(f)(3) because he merely seeks to apply, rather than extend, the rule

announced in Johnson. He also argues that his convictions for aiding and abetting

the brandishing of a firearm during or in relation to Hobbs Act robbery (Count

Three) and aiding and abetting the brandishing of a firearm during or in relation to

carjacking (Count Five) do not qualify as crimes of violence under 18 U.S.C.

§ 924(c)(3)(A)’s elements clause, though he acknowledges that our binding

precedent forecloses that argument. For the following reasons, we affirm.

      In reviewing a denial of a motion to vacate under § 2255, we review the

district court’s legal conclusions de novo and findings of fact for clear error.

Stoufflet v. United States, 

, 1239 (11th Cir. 2014). We may affirm

on any ground supported by the record. Castillo v. United States, 

,

1303 (11th Cir. 2016). “Although our review is limited to the issues specified in


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the COA, we will construe the issue specification in light of the pleadings and

other parts of the record.” McCoy v. United States, 

, 1248 n.2 (11th

Cir. 2001) (internal quotation mark omitted).

      Section 924(c) criminalizes the use or carrying of a firearm in furtherance of

a crime of violence or drug-trafficking crime. 18 U.S.C. § 924(c)(1)(A). In

§ 924(c), Congress provided definitions of a “crime of violence.” See

§ 924(c)(3)(A)–(B). However, the Supreme Court recently nullified one of those

definitions in § 924(c)(3)(B)—widely known as the residual clause—because it

was unconstitutionally vague. See United States v. Davis, 588 U.S. ___, 

, 2324–25, 2336 (2019). Even so, § 924(c)(3)(A)—widely known as the

elements clause—still stands. A felony offense that “has as an element the use,

attempted use, or threatened use of physical force against the person or property of

another” still qualifies as a “crime of violence.” § 924(c)(3)(A); see Steiner v.

United States, 

, 1293 (11th Cir. 2019) (per curiam) (citing 

).

      Further, aiding and abetting carjacking qualifies as a crime of violence for

the purposes of § 924(c)(3)(A). 

. Aiding and abetting

Hobbs Act robbery also qualifies as a crime of violence under § 924(c)(3)(A). In

re Colon, 

, 1305 (11th Cir. 2016). And a defendant need not have

been convicted or charged with the predicate offense for a conviction under


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§ 924(c). United States v. Frye, 

, 1127 (11th Cir. 2005) (per

curiam).

       So, no matter how we construe the issues on appeal,1 they end the same way:

affirmance. This is because, after Davis, both of Wilkes’s predicate offenses of

aiding and abetting Hobbs Act robbery and aiding and abetting carjacking still

qualify as crimes of violence under § 924(c)(3)(A), pursuant to our current binding

precedent. 2 See 

; In re 

; see also

In re Pollard, 

, 1321 (11th Cir. 2019). Because we affirm on the

merits, we need not address the procedural issue of timeliness.

       AFFIRMED.




1
  See In re Hammoud, 

, 1040 (11th Cir. 2019) (explaining that Johnson and Davis
claims, though similar, are distinct). In Steiner, the district court granted a COA on the question
of whether Steiner’s § 924(c) conviction was unconstitutional in light of Johnson. 

. We noted that Steiner had “recast[] his Johnson claim as a claim under . . . Davis”
and subsequently analyzed and decided the claim under Davis. 

1292–93. In his
reply brief, Wilkes acknowledged Davis and that “the only remaining question is whether
Wilkes’s predicate offenses of Hobbs Act robbery and carjacking qualify under the elements
clause.”
2
  See United States v. St. Hubert, 

, 344 (11th Cir. 2018) (clarifying the applicability
of the prior-panel-precedent rule), cert. denied, 

(2019), and abrogated in part on
other grounds by 

–25, 2336.
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