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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-12754
Non-Argument Calendar
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D.C. Docket No. 1:17-cr-20895-DMM-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEMON DOMINIQUE THOMPSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(January 5, 2021)
Before WILSON, JORDAN, and GRANT, Circuit Judges.
PER CURIAM:
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Defendant-Appellant Kemon Thompson appeals both his conviction,
pursuant to a guilty plea, and 96-month sentence for brandishing a firearm in
furtherance of a crime of violence, in violation of
18 U.S.C. § 924(c)(1)(A)(ii).1
I.
On appeal, Thompson first argues that his conviction for brandishing a
firearm in furtherance of a crime of violence, in violation of
18 U.S.C.
§ 924(c)(1)(A)(ii), is invalid and must be dismissed because the predicate offense
upon which that conviction was based—Hobbs Act robbery—does not qualify as a
“crime of violence” under the elements clause or residual clause of
18 U.S.C.
§ 924(c)(3).
A.
We review de novo whether a crime constitutes a “crime of violence” under
18 U.S.C. § 924(c). Steiner v. United States,
940 F.3d 1282, 1288 (11th Cir. 2019)
(per curiam).
Under
18 U.S.C. § 924(c)(1)(A), it is a violation to brandish a firearm during
and in relation to a crime of violence.
18 U.S.C. § 924(c)(1)(A)(ii). The statute
defines “crime of violence” in two subparts—the first is known as the elements
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Thomas also appeals the district court’s determination that his prior nolo contendere plea to
possession with intent to sell marijuana, with adjudication withheld, constituted a “conviction”
for the purposes of applying the career offender sentencing enhancement under U.S.S.G. §
4B1.1(a). Because we find the district court's application of the career offender sentencing
enhancement was in error and Thompson's sentence should be vacated, we need not address this
issue.
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clause, and the second is known as the residual clause. United States v. Davis,
139
S. Ct. 2319, 2324 (2019). For the purposes of § 924(c)(3), a crime of violence is
“an offense that is a felony” and 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.”
While the Supreme Court invalidated
18 U.S.C. § 924(c)(3)’s residual clause
in Davis for being unconstitutionally vague, it left intact § 924(c)(3)’s elements
clause. Davis,
139 S. Ct. at 2335–36; see Brown v. United States,
942 F.3d 1069,
1075 (11th Cir. 2019). Under our precedent, Hobbs Act robbery qualifies as a
crime of violence under
18 U.S.C. § 924(c)(3)’s elements clause. In re Fleur,
824
F.3d 1337, 1340–41 (11th Cir. 2016) (per curiam); see United States v. St. Hubert,
909 F.3d 335, 345–46 (11th Cir. 2018), cert. denied,
139 S. Ct. 1394 (2019), and
abrogated in part on other grounds by Davis,
139 S. Ct. at 2323–25, 2336 (2019)
(holding that Hobbs Act robbery categorically satisfies 18 U.S.C § 924(c)’s
definition of a “crime of violence”).
B.
Here, Thompson’s conviction for brandishing a firearm in furtherance of a
crime of violence, in violation of
18 U.S.C. § 924(c)(1)(A)(ii), was predicated
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upon two Hobbs Act robbery offenses. These constitute “crimes of violence”
under our precedent. See In re Fleur, 924 F.3d at 1340–41. “We are bound by
prior panel decisions unless or until we overrule them while sitting en banc, or they
are overruled by the Supreme Court.” United States v. Jordan,
635 F.3d 1181,
1189 (11th Cir. 2011). Accordingly, we affirm Thompson’s conviction.
II.
Thompson also challenges his 96-month sentence, arguing that Hobbs Act
robbery does not qualify as a “crime of violence,” under the definition provided in
U.S.S.G. § 4B1.2(a), for the purposes of being designated a career offender.
Thompson argues that our intervening decision in United States v. Eason,
953 F.3d
1184 (11th Cir. 2020), means that the district court’s determination that he
qualified for career offender status constitutes plain error and should be reversed.
A.
We review de novo whether a defendant’s prior conviction qualifies as a
“crime of violence” under U.S.S.G § 4B1.2(a). See United States v. Rosales-
Bruno,
676 F.3d 1017, 1020 (11th Cir. 2012). However, when a defendant fails to
object to an error before the district court, we review the argument for plain error.
United States v. Hall,
314 F.3d 565, 566 (11th Cir. 2002). Under this standard, the
appellant must prove: (1) an error occurred; (2) the error was plain; (3) it affected
his substantial rights; and (4) it seriously affected the fairness or integrity of the
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judicial proceedings. United States v. Olano,
507 U.S. 725, 732 (1993). “In most
cases, a determination of whether error affects a substantial right turns upon
whether it affected the outcome of the proceedings.” Hall,
314 F.3d at 566.
“[W]hether a legal question was settled or unsettled at the time of trial, it is
enough that an error be ‘plain’ at the time of appellate consideration for the second
part of the four-part Olano test to be satisfied.” Henderson v. United States,
568
U.S. 266, 279 (2013) (internal quotation marks omitted and alterations accepted).
An incorrect calculation of a Sentencing Guideline affects a defendant’s substantial
rights. Molina-Martinez v. United States,
136 S. Ct. 1338, 1349 (2016) (finding
that a defendant seeking appellate review of an unpreserved Sentencing Guidelines
error need not make any further showing of prejudice beyond the fact that an
erroneous, and higher, Guidelines range was applied at sentencing). Furthermore,
the failure to correct such a plain Guidelines error seriously affects “the fairness,
integrity, and public reputation of judicial proceedings.” Rosales-Mireles v. United
States,
138 S. Ct. 1897, 1911 (2018).
Hobbs Act robbery does not qualify as a “crime of violence” under U.S.S.G.
§ 4B1.2(a) and therefore cannot serve as a predicate offense for a career offender
sentencing enhancement. Eason, 953 F.3d at 1195. The Guideline sentence for a
conviction based on a violation of
18 U.S.C. § 924(c), when the defendant does not
qualify as a career offender under U.S.S.G. § 4B1.1, is the minimum term of
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imprisonment required by statute. See U.S.S.G. § 2K2.4. A conviction pursuant to
18 U.S.C. § 924(c)(1)(A)(ii) carries a minimum term of imprisonment of 84
months.
B.
Here, the district court’s determination that Hobbs Act robbery is a crime of
violence for purposes of the career offender sentencing enhancement under
U.S.S.G. § 4B1.1 was plain error. While Thompson’s case was on appeal, we held
that Hobbs Act robbery does not constitute a crime of violence under the
Sentencing Guidelines. See Eason, 953 F.3d at 1188–89, 1195. Thus, Thompson
has demonstrated that the error is plain. See Henderson,
568 U.S. at 279. This
erroneous application of the career offender sentencing enhancement resulted in an
incorrect, and higher, Guidelines range being applied at Thompson’s sentencing—
a Guidelines range of 262 to 327 months’ imprisonment as opposed to the correct
84 months’ imprisonment. Thus, the error affected Thompson’s substantial rights
and the fairness, integrity, and public reputation of the judicial proceedings. See
Rosales-Mireles,
138 S. Ct. at 1909–1911.
Having satisfied the elements for plain error review under Olano, we vacate
Thompson’s sentence and remand for resentencing without the career offender
Guideline enhancement under U.S.S.G. § 4B1.1.
AFFIRMED IN PART, VACATED IN PART, REMANDED.
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