Filed: Feb. 04, 2020
Latest Update: Mar. 03, 2020
Summary: Case: 17-13353 Date Filed: 02/04/2020 Page: 1 of 5 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 17-13353 Non-Argument Calendar _ D.C. Docket No. 1:13-cr-20334-CMA-1 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus BOBBY JENKINS, Defendant - Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (February 4, 2020) Before MARTIN, GRANT, and LAGOA, Circuit Judges. MARTIN, Circuit Judge: Bobby Jenkins, Jr., appe
Summary: Case: 17-13353 Date Filed: 02/04/2020 Page: 1 of 5 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 17-13353 Non-Argument Calendar _ D.C. Docket No. 1:13-cr-20334-CMA-1 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus BOBBY JENKINS, Defendant - Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (February 4, 2020) Before MARTIN, GRANT, and LAGOA, Circuit Judges. MARTIN, Circuit Judge: Bobby Jenkins, Jr., appea..
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Case: 17-13353 Date Filed: 02/04/2020 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-13353
Non-Argument Calendar
________________________
D.C. Docket No. 1:13-cr-20334-CMA-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BOBBY JENKINS,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 4, 2020)
Before MARTIN, GRANT, and LAGOA, Circuit Judges.
MARTIN, Circuit Judge:
Bobby Jenkins, Jr., appeals his conviction and sentence for carrying a
firearm during a crime of violence in violation of 18 U.S.C. § 924(c). After careful
review, we vacate Mr. Jenkins’s § 924(c) conviction and remand for resentencing.
Case: 17-13353 Date Filed: 02/04/2020 Page: 2 of 5
I.
In May 2013, Mr. Jenkins was indicted for conspiracy to commit Hobbs Act
robbery in violation of 18 U.S.C. § 1951(a); conspiracy to possess with intent to
distribute 5 kilograms or more of cocaine in violation of 21 U.S.C. § 846;
possessing a firearm as a felon in violation of 18 U.S.C. §§ 922(g)(1) and
924(c)(1); and carrying a firearm during a crime of violence in violation of 18
U.S.C. § 924(c). Notably, the indictment specified that the § 924(c) count was
predicated on “a violation of Title 18, United States Code, Section 1951(a),” or
conspiracy to commit Hobbs Act robbery. Mr. Jenkins went to trial, and in
October 2013, a jury convicted him on all counts. Mr. Jenkins was sentenced to
two concurrent 20-year terms of imprisonment on the conspiracy counts, a
concurrent ten-year term on the felon-in-possession count, and a consecutive term
of five years on the § 924(c) count, for a total sentence of 25 years.
On direct appeal, our Court vacated Mr. Jenkins’s felon-in-possession
conviction and remanded his case for resentencing. See United States v. Clarke,
822 F.3d 1213, 1215 (11th Cir. 2016) (per curiam). On remand but prior to
resentencing, Mr. Jenkins moved to dismiss the § 924(c) charge in the indictment.
He argued his § 924(c) conviction was invalid in light of Johnson v. United States,
576 U.S. ___,
135 S. Ct. 2551 (2015). Of course, Johnson struck down as
unconstitutionally vague the “residual clause” of the Armed Career Criminal Act,
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which defined the term “violent felony.” Id. at 2557. Mr. Jenkins reasoned that
the similarly worded residual clause in § 924(c)(3)(B), defining “crime of
violence,” was likewise unconstitutionally vague. He also submitted that the
predicate offense for his § 924(c) conviction—conspiracy to commit Hobbs Act
robbery—did not otherwise qualify as a crime of violence under § 924(c)(3)(A),
known as the “elements clause.”
At his 2017 resentencing hearing, the District Court declined to dismiss Mr.
Jenkins’s § 924(c) conviction. The court concluded that Johnson did not apply to
§ 924(c), relying on our precedent in Ovalles v. United States, 861 F.3d 1257 (11th
Cir. 2017), on reh’g en banc,
905 F.3d 1231 (11th Cir.), opinion reinstated in part,
905 F.3d 1300 (11th Cir. 2018), abrogated by United States v. Davis, 588 U.S.
___,
139 S. Ct. 2319 (2019). The District Court imposed two concurrent sentences
of 121 months on the conspiracy charges, followed by a consecutive sentence of
five years on the § 924(c) charge. Mr. Jenkins filed a timely notice of appeal from
his now-15-year sentence.1 On appeal, Mr. Jenkins renews his arguments that his
§ 924(c) conviction should be vacated.
1
The government filed an untimely notice of cross-appeal to challenge Mr. Jenkins’s
reduced sentences on the two conspiracy counts. The government moved to voluntarily dismiss
its cross-appeal in February 2019, and this Court granted the motion.
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II.
Whether an offense underlying a § 924(c) conviction qualifies as a “crime of
violence” presents a question of law, which we review de novo. See Brown v.
United States, 942 F.3d 1069, 1072 (11th Cir. 2019) (per curiam).
III.
Since Mr. Jenkins’s 2017 resentencing, his belief that Johnson invalidated
18 U.S.C. § 924(c)(3)(B) has become law. In Davis, the Supreme Court extended
its holding in Johnson and announced that the definition of “crime of violence” in
§ 924(c)’s residual clause is void for vagueness. 139 S. Ct. at 2327, 2336. Davis
presented a new, substantive rule of constitutional law that applies retroactively to
criminal cases. In re Hammoud,
931 F.3d 1032, 1037–39 (11th Cir. 2019). Davis,
however, did not affect the definition of “crime of violence” found in § 924(c)’s
elements clause. See
Brown, 942 F.3d at 1075. Thus, Mr. Jenkins can now benefit
from Davis only if his § 924(c) predicate offense does not qualify as a crime of
violence under the elements clause.
In Brown, this Court concluded that conspiracy to commit Hobbs Act
robbery is not a crime of violence under § 924(c)’s elements clause. 942 F.3d at
1075–76. Because conspiracy to commit Hobbs Act robbery served as the sole
predicate for Mr. Brown’s § 924(c) conviction, we vacated his conviction and
remanded for resentencing.
Id. at 1074–76.
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Mr. Jenkins is entitled to the same relief. His indictment referenced
conspiracy to commit Hobbs Act robbery as the only predicate offense supporting
the § 924(c) charge. A jury convicted Mr. Jenkins of violating § 924(c) on this
basis alone. Because conspiracy to commit Hobbs Act robbery is not a crime of
violence under the elements clause, Mr. Jenkins could have only been convicted of
a § 924(c) violation under the unconstitutional residual clause in § 924(c)(3)(B).
His § 924(c) conviction and the accompanying consecutive five-year sentence are
therefore invalid. In accordance with Brown, we vacate Mr. Jenkins’s § 924(c)
conviction and remand for resentencing.
VACATED AND REMANDED.
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