In re Colon

MARTIN, Circuit Judge,

dissenting:

Edgar Colon argues that Johnson v. United States. 576. U.S. -, 135 S.Ct. 2551 , 192 L.Ed.2d 569 (2015), makes his 18 U.S.C. § 924 (c) sentence unlawful. Mr. Colon received that sentence because he pleaded guilty to aiding and abetting a robbery. Our court has held that § 924(c) sentences that were based on conspiracy to commit robbery may not survive Johnson. See In re Pinder, No. 16-12084, 824 F.3d 977, 978-79 , 2016 WL 3081954, at *1-2 (11th Cir. June 1, 2016). Shortly after Pin-der issued, this court held that it does not apply when a § 924(c) sentence is based on the actual commission of a robbery. See In re Saint Fleur, No. 16-12299, 824 F.3d 977, 979-81 , 2016 WL 3190539, at *3-4 (11th Cir. June 8, 2016). Saint Fleur distinguished Pinder by saying that the actual commission of a robbery meets the “elements clause” definition in 18 U.S.C. § 924 (c)(3)(A), and while Johnson may call the § 924(c)(3)(B)’s “crime of violence” definition into question, it does not affect the § 924(c)(3)(A) definition (which is usually called the “elements clause” or “use of force” clause).

I am aware of no precedent deciding the question of whether aiding and abetting a crime meets the “elements clause” definition. That definition requires a crime that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 924 (c)(3)(A). As best I can tell (though we have not had any briefing on this question, and I have not had much time to think through the issue), a defendant can be convicted of aiding and abetting a robbery without ever using, attempting to use, or threatening to use force.

The only aiding and abetting § 924(c) case the majority cites is United States v. Williams, 334 F.3d 1228, 1232 (11th Cir. 2003). Williams is not helpful here for two reasons. First, unlike Mr. Colon, Mr. Williams was convicted of committing an actual Hobbs Act robbery. The question in Williams was therefore not whether a defendant who merely aids and abets a Hobbs Act robbery can be sentenced under § 924(c). Rather, the question was whether the defendant who committed the Hobbs Act robbery can be sentenced under § 924(c) on the theory that he aided and abetted the use of a weapon. The question in Mr. Colon’s case was not answered in Williams. The second reason Williams is not helpful is that it did not distinguish between § 924(c)(3)(A) and § 924(c)(3)(B). Because it did not make this distinction, it may not survive Johnson. At the least, I believe the questions raised here are close enough that Mr. Colon made “a prima facie showing” that Johnson invalidates his sentence. 28 U.S.C. § 2244 (b)(3)(C).

It seems plausible that a defendant could aid and abet a robbery without ever using, threatening, or attempting any force at all. For example, the aider and abettor’s contribution to a crime could be as minimal as lending the principal some equipment, sharing some encouraging words, or driving the principal somewhere. And even if Mr. Colon’s contribution in his case involved force, this use of force was not necessarily an element of the crime, as is required to meet the “elements clause” definition. The law has long been clear that a defendant charged with aiding and abetting a crime is not required to aid and abet *1307 (let alone actually commit, attempt to commit, or threaten to commit) every element of the principal’s crime. See Rosemond v. United States, — U.S. -, 134 S.Ct. 1240, 1246-47 , 188 L.Ed.2d 248 (2014) (“As almost every court of appeals has held, a defendant can be convicted as an aider and abettor without proof that he participated in each and every dement of the offense. In proscribing aiding and abetting, Congress used language that comprehends all assistance rendered by words, acts, encouragement, support, or presence — even if that aid relates to only one (or some) of a crime’s phases or elements.” (quotation and citations omitted) (emphasis added)). Even when a principal’s crime involves an element of force, there is “no authority for demanding that an affirmative act go toward an element considered peculiarly significant; rather, ... courts have never thought relevant the importance of the aid rendered.” Id. at 1247 .

Unlike in Williams, Mr. Colon was not convicted of actually committing a robbery. In a case like Williams, I agree that Saint Fleur may require us to deny the application because robbery “has as an elemeht the use, attempted use, or threatened use of physical force against the person or property of another.” Id. § 924(c)(3)(A). But Mr. Colon’s aiding and abetting crime could have been based on his aid of an element of robbery that involved no force. 1 Certainly aiding and abetting a robbery “by its nature, involves a substantial risk that physical force against the person or property of another may be used.” Id. § 924(c)(3)(B). But Johnson may have invalidated that .definition. As for § 924(c)’s surviving “crime of violence” definition, it is at least unclear whether aiding and abetting a robbery “has as an element the use, attempted use, or threatened use of physical force.” Id. § 924(c)(3)(A).

The majority’s analysis also conflicts with our court’s post-Johnson treatment of § 924(c). Again, our court has held that § 924(c) sentences that were based on conspiracy convictions may not survive Johnson. See Pinder, 824 F.3d at 978-79 , 2016 WL 3081954, at * 1-2 . We have also done the same in attempted robbery cases. See In re Still, No. 16-12509 (11th Cir. June 15, 2016); In re Del Monte, No. 16-12526 (11th Cir. June 15, 2016). Certainly, a defendant who aids and abets a crime “is punishable as a principal.” 18 U.S.C. § 2 (a). But it is also true that a “person who attempts or conspires to commit any offense ... shall be subject to the same penalties as those” who commit the offense. 21 U.S.C. § 846 . Even so, our court has recognized that attempt or conspiracy *1308 crimes may not meet § 924(c)’s “elements clause” definition. I am not willing to assume, as the majority does here, that aiding and abetting crimes meet the “elements clause” definition simply because an aider and abettor “is punishable as a principal.” 18 U.S.C. § 2 (a).

To be clear, none of our orders about § 924(c) sentences in conspiracy or attempt cases actually decide the question of whether those crimes satisfy the “elements clause” definition. Instead, each order left that question to the district court to decide in the first instance. See, e.g., Pinder, 824 F.3d at 978-79 , 2016 WL 3081954, at *2 . This is as it should be. Our court recently held that applications to file § 2255 motions based on Johnson “should be granted[ ] in situations where neither the record nor current binding precedent makes undeniably clear that, absent the residual clause, an enhanced sentence validly was entered.” In re Rogers, No. 16-12626, 825 F.3d 1335, 1339 , 2016 WL 3362057, at *2 (11th Cir.2016). The record in Mr. Colon’s case does not indicate which clause of § 924(c)(3) the district court relied on, and no binding precedent I know of “makes undeniably clear that” an aiding and abetting crime meets the “elements clause” definition. I would therefore grant Mr. Colon’s application.

Our court never held until today that aiding and abetting crimes fall under § 924(c)(3)(A). And the majority’s order holds that Mr. Colon and people like him cannot even make “a prima facie showing” on this issue. I have already written about the danger of deciding the merits of not-yet-filed §2255 motions in orders that do not have the benefit of input from lawyers and are not subject to review. See In re McCall, No. 16-12972, 825 F.3d 1335, 1339-41 , 2016 WL 3382006, at *2-3 (11th Cir.2016) (Martin, J., concurring); Saint Fleur, 824 F.3d at 1341 , 2016 WL 3190539, at *4 (Martin, J., concurring). Our court has done this in hundreds of cases in the two months since the Supreme Court decided Welch v. United States, — U.S. -, 136 S.Ct. 1257 , 194 L.Ed.2d 387 (2016). Deciding the merits of not-yet-filed § 2255 motions in this way is especially dangerous in cases like Mr. Colon’s that turn on a complex question of first impression. If this panel allowed Mr. Colon to file his motion, the District Court could hear from lawyers on both sides and decide the question in the first instance. We would then review the decision on appeal, based (unlike now) on briefing. That ruling (unlike this one) would be subject to review by the Supreme Court. None of that is possible now. If our decision today is wrong, Mr. Colon may be serving an unlawful prison sentence, without any possibility of further review. I respectfully dissent.

. The mere fact that Mr. Colon received a § 924(c) sentence does not mean he had to actually use, attempt to use, or threaten to use force. § 924(c) applies to "any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United . States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm.” 18 U.S.C. § 924 (c)(1)(A). The term "in furtherance of any such crime” modifies "possesses” but not "carries.” This makes clear that a § 924(c) sentence can be based on simply "carr[ymg]” a firearm during a crime, so long as that underlying crime meets the "elements clause” definition. The Supreme Court has long held that “'use' must connote more than mere possession of a firearm.” Bailey v. United States, 516 U.S. 137, 143 , 116 S.Ct. 501, 506 , 133 L.Ed.2d 472 (1995). Instead, "the language, context, and history of § 924(c)(1) indicate that the Government must show active employment of the firearm.” Id. at 144, 116 S.Ct. at 506 . This means the fact that a defendant received a § 924(c) sentence does not on its own confirm whether it’s § 924(c)(3)(A) or § 924(c)(3)(B) that supports the sentence. The question remains: which definition does the underlying crime meet?