Rykeith Andre Levatte v. USA

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 16-17685
Non-Argument Calendar
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D.C. Docket Nos. 8:16-cv-01105-VMC-TBM; 8:10-cr-00438-VMC-TBM-3

RYKEITH ANDRE LEVATTE,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(February 19, 2020)

Before BRANCH, BLACK and MARCUS, Circuit Judges.

PER CURIAM:
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Rykeith Andre Levatte appeals from 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 Levatte on one issue: whether his
convictions under 18 U.S.C. § 924(c), predicated on convictions for aiding and
abetting Hobbs Act robbery, are unconstitutional in light of Johnson v. United
States, 135 S. Ct. 2551 (2015). After review,
1
we affirm the district court’s
dismissal.
Section 924(c) of Title 18 of the United States Code 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). A “crime of violence” is a felony offense that 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.

Id. § 924(c)(3).
Subsection (A) is known as the “elements clause,” while subsection (B) is
known as the “residual clause.” United States v. Davis, 139 S. Ct. 2319, 2324
(2019). In Davis, the Supreme Court extended its holdings in Johnson and

1
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, 757 F.3d
1236, 1239 (11th Cir. 2014).

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Sessions v. Dimaya, 138 S. Ct. 1204 (2018), to § 924(c) and held that
§ 924(c)(3)(B)’s residual clause, like the residual clauses in the Armed Career
Criminal Act and 18 U.S.C. § 16(b), is unconstitutionally vague. Davis, 139 S. Ct.
at 2324-25, 2336.
A federal prisoner raising a Davis claim cannot show that he was sentenced
under § 924(c)’s residual clause if current binding precedent clearly establishes his
predicate offense qualifies as a crime of violence under the elements clause. In re
Pollard, 931 F.3d 1318, 1321 (11th Cir. 2019); see also United States v. St.
Hubert, 909 F.3d 335, 346 (11th Cir. 2018), cert. denied, 139 S. Ct. 1394 (2019),
and abrogated in part on other grounds by Davis, 139 S. Ct. at 2336 (holding
decisions published in the context of applications for leave to file a second or
successive § 2255 motion are binding precedent on all subsequent panels of this
Court). We have held aiding and abetting a crime of violence qualifies as a crime
of violence for purposes of § 924(c)(3)(A). Steiner v. United States, 940 F.3d
1282, 1293 (11th Cir. 2019). In In re Colon, we held the defendant’s § 924(c)
conviction was valid, regardless of the validity of the residual clause, because its
predicate crime of aiding and abetting Hobbs Act robbery qualified as a crime of
violence under § 924(c)(3)(A). 826 F.3d 1301, 1305 (11th Cir. 2016).
As an initial matter, Levatte has preserved his argument that the predicate
crimes on which his § 924(c) convictions were based—the charges of aiding and
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abetting Hobbs Act robbery—do not qualify as crimes of violence under the
elements clause in § 924(c)(3)(A), because he raised this argument in his original,
pro se § 2255 motion. His argument that his § 924(c) convictions were no longer
valid because his predicate “Hobbs Act offense[s]” did not qualify as crimes of
violence under the elements clause in § 924(c)(3)(A) was clear and simple enough
for the district court to understand his claim, even if he did not specifically assert
that his predicate offenses were aiding and abetting Hobbs Act robbery. See
United States v. Corbett, 921 F.3d 1032, 1043 (11th Cir. 2019) (stating to preserve
an issue for appeal, a defendant must raise the issue “in such clear and simple
language that the trial court may not misunderstand it” (quotations omitted));
Waldman v. Conway, 871 F.3d 1283, 1289 (11th Cir. 2017) (explaining a pro se
pleading is held to a less stringent standard than a pleading drafted by an attorney
and is liberally construed).
As another initial matter, although this Court’s COA was written before
Davis issued and referenced only Johnson, the COA may be viewed as broad
enough to encompass whether Levatte’s § 924(c) convictions remain valid after
Davis. Specifically, the COA could be read to encompass whether the Johnson
line of cases, of which Davis is a part, invalidated § 924(c)(3)(B). See Davis, 139
S. Ct. at 2325-27. Because this is Levatte’s first § 2255 motion, his case is similar
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in posture to Steiner, in which the COA referenced Johnson but this Court
analyzed the appeal under Davis.
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Steiner, 940 F.3d at 1288.
On the merits, Levatte cannot show that his § 924(c) convictions are invalid
in light of Davis because, regardless of Davis’s holding that the residual clause in
§ 924(c)(3)(B) is unconstitutionally vague, this Court has held that aiding and
abetting Hobbs Act robbery qualifies as a crime of violence under the elements
clause in § 924(c)(3)(A). See Davis, 139 S. Ct. at 2324-25; Steiner, 940 F.3d at
1293; Colon, 826 F.3d at 1305; St. Hubert, 909 F.3d at 346. Because current
binding precedent establishes that Levatte’s predicate offenses qualify as crimes of
violence under the elements clause, his convictions under § 924(c) remain valid.
See Pollard, 931 F.3d at 1321.
AFFIRMED.

2
We note this case does not present the issue of whether a second or successive claim
was properly authorized.
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