Ovalles v. United States

• Decision Date: 30 June 2017
• Docket Number: No. 17-10172,17-10172
• Citation: 861 F.3d 1257
• Parties: Irma OVALLES, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

861 F.3d 1257

Irma OVALLES, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 17-10172

United States Court of Appeals, Eleventh Circuit.

June 30, 2017

W. Matthew Dodge, Stephanie A. Kearns, Federal Defender Program, Inc., ATLANTA, GA, for Petitioner-Appellant.

Kim S. Dammers, John Andrew Horn, Erin Sanders, Lawrence R. Sommerfeld, U.S. Attorney's Office, ATLANTA, GA, for Respondent–Appellee.

Before TJOFLAT, HULL and WILLIAM PRYOR, Circuit Judges.

HULL, Circuit Judge:

Irma Ovalles, a federal prisoner, appeals the district court's denial of her 28 U.S.C. § 2255 motion to vacate her conviction and sentence for using and carrying a firearm during and in relation to a crime of violence (Count Five), namely, attempted carjacking (Count Four), on the grounds that the "risk-of-force" clause in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague under

861 F.3d 1259

Johnson v. United States , 576 U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). The district court held that the "risk-of-force" clause in § 924(c)(3)(B) was not void for vagueness and that, therefore, Ovalles could not make a claim for relief under Johnson . Additionally, the government argues that Ovalles's attempted-carjacking conviction in Count Four categorically qualifies as a crime of violence under the "use-of-force" clause in § 924(c)(3)(A).

After review, we conclude that Johnson does not apply to or invalidate § 924(c)(3)(B) and that Ovalles's attempted-carjacking conviction in Count Four qualifies as a crime of violence under § 924(c)(3)(B). Accordingly, we affirm the denial of Ovalles's § 2255 motion on that basis. As an independent and alternative ground for affirmance of the denial of Ovalles's § 2255 motion, we hold, as the government argues, that Ovalles's attempted-carjacking offense qualifies as a crime of violence under the "use-of-force" clause in § 924(c)(3)(A).

I. BACKGROUND FACTS

A. Charges and Plea Agreement

In 2010, Ovalles was charged by information with Hobbs Act robbery, in violation of 18 U.S.C. § 1915 and 2 (Count One), three counts of carjacking, in violation of 18 U.S.C. § 2119 and 2 (Counts Two, Three and Six), attempted carjacking, in violation of 18 U.S.C. § 2119 and 2 (Count Four), and using and carrying a firearm during the attempted carjacking in Count Four, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) and 2 (Count Five).

Relevant to this appeal, Count Four charged that Ovalles and six other individuals "aided and abetted by each other, with the intent to cause death and serious bodily harm, did attempt to take a motor vehicle ..., that is, a Chevrolet Venture, from the person or presence of another, by force, violence and intimidation." Count Five charged that Ovalles and the other six individuals "aided and abetted by each other, did use and carry a firearm during and in relation to a crime of violence, that is, the carjacking as alleged in Count Four herein, an offense for which the defendants may be prosecuted in a court of the United States."

Ovalles entered into a written plea agreement with the government and agreed to plead guilty to all six counts in the information.¹

B. Guilty Plea

At her plea hearing, Ovalles consented to proceed before a magistrate judge. Under oath, Ovalles stated that she was 20 years old, had reached the ninth grade in school, and could read, write, and understand English. Ovalles further testified that she had never been diagnosed with a mental or emotional illness or treated for alcoholism or drug addiction, and was not under the influence of any drugs, medications or alcohol.

The magistrate judge then summarized the plea agreement and potential sentence. Ovalles stated that no one had threatened her to plead guilty and that she was pleading guilty because she was, in fact, guilty. The government then discussed the elements of each offense in the information, and Ovalles stated that she understood what the government would be required to prove at trial.

C. Factual Proffer

The government provided a factual basis for Ovalles's guilty plea at the plea hearing,

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noting that Ovalles and several others were involved with a series of crimes, including the charged robbery and four separate carjackings, between December 12, 2008 and December 14, 2008. On December 12, 2008, Ovalles and several other individuals, one of whom the victim said had a firearm, committed a robbery at a grocery store, using baseball bats and taking cellular phones, prepaid phone cards, and Mexican blankets.² Victims of the grocery-store robbery identified Ovalles as one of the robbers.

The next day the carjackings began. On December 13, 2008, Ovalles and her accomplices stole a Dodge Ram pickup truck by striking the truck's owner and taking his keys.

The day after the carjacking of the truck, on December 14, 2008, Ovalles and her accomplices stole another vehicle, a Toyota 4-Runner, by demanding the driver's keys and striking him in the head with a pistol. Later that day, Ovalles and her accomplices attempted to steal another car, a Chevrolet Venture, by demanding the driver's keys and striking the driver's juvenile daughter in the mouth with a baseball bat. Ultimately, they did not take the Chevrolet, however, because they fled after being confronted by a man with a gun. In attempting to steal the Chevrolet, one of Ovalles's accomplices fired an AK-47 rifle at the victims. Finally, Ovalles and her codefendants stole another truck, a Ford F-150, by demanding the vehicle at gunpoint.

After the government delivered the factual proffer, Ovalles agreed that she had committed the acts as the government described them. Ovalles stated that she was satisfied with her attorney's representation. Ovalles pled guilty to the charges in the information, noting that her pleas were voluntary and of her own free will and that she was in fact guilty as charged.

The magistrate judge subsequently entered a report (R&R) recommending that Ovalles's guilty plea be accepted and that she be adjudicated guilty. Without objection, the district court adopted the R&R and accepted Ovalles's guilty plea.

D. Presentence Investigation Report

The probation officer prepared a presentence investigation report ("PSI"), to which the government and defendant Ovalles did not object. According to the PSI, Ovalles was a member of a gang called SUR-13 and the former girlfriend of the leader of SUR-13, Pedro Barrera-Perez. Between December 12 and 14, 2008, Ovalles and several others members of SUR-13 went on a violent crime spree that included both charged and uncharged conduct and involved a convenience store robbery, numerous stolen vehicles and armed robberies, injuries to some of the victims, and two high-speed police chases.

The PSI stated as to Counts Four (attempted carjacking of the Chevy) and Five (using and carrying a firearm during that attempted carjacking), which are relevant to this appeal, that at 9:30 p.m. on December 14, 2008, Ovalles and six other gang members stopped a Chevy Venture in an apartment complex by displaying firearms. The robbers ordered the Chevy's driver and his sixteen-year-old daughter out of the vehicle, and then one of the robbers hit the daughter in the mouth with a baseball bat. The robbers took the victims' money and cell phones at gunpoint and demanded the keys to the Chevy. After handing over the keys, the victims managed to escape. As they ran from the parking lot, one of the robbers fired several rounds from an

861 F.3d 1261

AK-47 rifle in their direction. When someone fired back at the robbers, they fled the area in a pick-up truck, leaving the victim's Chevy behind.

At approximately 10:30 p.m. on December 14, 2008, Ovalles and the other gang members robbed another man and his family at gunpoint. The robbers wore bandanas to cover their faces. Two of the robbers took the victims' Ford truck, and Ovalles and the other four robbers left the scene in a previously stolen Dodge truck. After leaving the scene, the robbers abandoned the Dodge truck, and all seven robbers got into the Ford truck. Because the Ford truck was equipped with OnStar GPS tracking, law enforcement was able to locate the stolen truck. When officers attempted to stop the truck, a high speed chase ensued. The robber driving the stolen truck lost control of the vehicle, causing it to flip over a guardrail and crash into some trees. Five robbers, including Ovalles, were flown by helicopters to the hospital. One robber died at the scene of the crash.

With respect to Counts One through Four and Six, the PSI determined that Ovalles had a total offense level of 31 and a criminal history category of I, which resulted in an advisory guidelines range of 108 to 135 months' imprisonment. As to Count Five, the § 924(c) firearm offense, the PSI determined that Ovalles's advisory guidelines sentence was the statutory minimum term of ten years' imprisonment, to be served consecutive to any other counts.

E. Sentencing Hearing

At her 2011...