[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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Nos. 16-13681-J & 16-13803-J

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IN RE: DARREN DEMEATRIE GORDON

Petitioner.

__________________________

Application for Leave to File a Second or Successive

Motion to Vacate, Set Aside, 

or Correct Sentence, 28 U.S.C. § 2255(h)

_________________________

Before: TJOFLAT, HULL, and JULIE CARNES, Circuit Judges.

BY THE PANEL:

In these consolidated proceedings pursuant to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A), 

Darren Demeatrie Gordon has filed two applications—one pro se and the other through 

counsel—seeking an order authorizing the district court to consider a second or successive motion 

to vacate, set aside, or correct his federal sentence, 28 U.S.C. § 2255. Such authorization may be 

granted only if we certify that the second or successive motion contains a claim involving:

(1) newly discovered evidence that, if proven and viewed in light of the 

evidence as a whole, would be sufficient to establish by clear and convincing 

evidence that no reasonable factfinder would have found the movant guilty of the 

offense; or

(2) a new rule of constitutional law, made retroactive to cases on collateral 

review by the Supreme Court, that was previously unavailable.

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28 U.S.C. § 2255(h). “The court of appeals may authorize the filing of a second or successive 

application only if it determines that the application makes a prima facie showing that the 

application satisfies the requirements of this subsection.” Id. § 2244(b)(3)(C); see also

Jordan v. Sec’y, Dep’t of Corr., 485 F.3d 1351, 1357-58 (11th Cir. 2007) (explaining that our 

determination that an applicant has made a prima facie showing that the statutory criteria have 

been met is simply a threshold determination).

In his two applications, Gordon indicates that he wishes to raise one claim in a second or 

successive § 2255 motion. Gordon asserts that his claim relies upon the new rule of constitutional 

law announced in Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551, 192 L. Ed. 2d 569 

(2015), and made retroactively applicable to cases on collateral review by Welch v. United States, 

578 U.S. ___, 136 S. Ct. 1257, ___ L. Ed. 2d ___ (2016). Specifically, he asserts that his 

60-month consecutive sentence for using and carrying a firearm during and in relation to a crime of 

violence, in violation of 18 U.S.C. § 924(c), must be set aside in light of Johnson and Welch. 

I. THE ACCA

A felon in possession of a firearm who has at least three prior convictions “for a violent 

felony or a serious drug offense, or both, committed on occasions different from one another,” is 

subject to an enhanced statutory penalty under the ACCA. 18 U.S.C. § 924(e)(1). The ACCA 

defines the term “violent felony” as any crime punishable by a term of imprisonment exceeding 

one year that:

(i) has as an element the use, attempted use, or threatened use of physical force 

against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise 

involves conduct that presents a serious potential risk of physical injury to 

another.

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Id. § 924(e)(2)(B). The first prong of this definition is sometimes referred to as the “elements 

clause,” while the second prong contains the “enumerated crimes” and, finally, what is commonly 

called the “residual clause.” United States v. Owens, 672 F.3d 966, 968 (11th Cir. 2012). 

II. JOHNSON AND WELCH

On June 26, 2015, the Supreme Court in Johnson held that the residual clause of the ACCA 

is unconstitutionally vague. Johnson, 576 U.S. at ___, ___, 135 S. Ct. at 2557-58, 2563. The 

Supreme Court clarified that, in holding that the residual clause is void, it did not call into question 

the application of the elements clause and the enumerated crimes clause of the ACCA’s definition 

of a violent felony. Id. at ___, 135 S. Ct. at 2563. On April 18, 2016, the Supreme Court held in 

Welch that Johnson announced a new substantive rule that applies retroactively to cases on 

collateral review. Welch, 578 U.S. at ___, 136 S. Ct. at 1264-65.1

 

In light of the Supreme Court’s holdings in Johnson and Welch, many federal prisoners 

now seek to make a prima facie showing that they previously were sentenced, at least in part, in 

reliance on the ACCA’s now-voided residual clause, and seek to file a second or successive § 2255 

motion in the district court. However, merely alleging a basis that meets § 2255(h)’s 

requirements in the abstract only “represent[s] the minimum showing” necessary to file a 

successive § 2255 motion because, under § 2244(b)(3)(C), the applicant also must make “a prima 

facie showing that the application satisfies the requirements of this subsection.” In re Holladay, 

 1

Although the Supreme Court held that Johnson’s invalidation of the residual clause 

applied retroactively, the Supreme Court remanded Welch’s § 2255 proceedings to this Court to 

determine whether the district court’s denial of the § 2255 motion was correct “on other grounds,” 

noting that “the parties continue to dispute whether Welch’s strong-arm robbery conviction 

qualifies as a violent felony under the elements clause of the Act, which would make Welch 

eligible for a 15-year sentence regardless of Johnson.” Welch, 578 U.S. at ___, 136 S. Ct. at 1268. 

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331 F.3d 1169, 1173 (11th Cir. 2003). Accordingly, it is not enough for a federal prisoner to 

merely cite Johnson as the basis for his claims; he also must make a prima facie showing that he 

was sentenced, at least in part, under the residual clause, and thus falls within the scope of the new 

substantive rule announced in Johnson. See, e.g., id.; see also 28 U.S.C. § 2244(b)(3)(C). 

III. GORDON’S CONVICTIONS AND SENTENCE

A jury found Gordon guilty of committing the following offenses, all of which were 

charged in the same indictment: (1) one count of Hobbs Act robbery, in violation of 18 U.S.C. 

§§ 1951(a) and 2 (Count 1); (2) one count of using and carrying a firearm during and in relation to 

a crime of violence, that is the Hobbs Act robbery charged in Count 1 of the indictment, in 

violation of 18 U.S.C. §§ 924(c) and 2 (Count 2); and (3) one count of being a felon in possession 

of a firearm, in violation 18 U.S.C. §§ 922(g)(1) (Count 3).2 The district court sentenced Gordon 

to 240 months’ imprisonment as to Count 1, the Hobbs act robbery count, and 120 months 

imprisonment as to Count 3, the felon-in-possession count, with those counts to run concurrently.3 

As to Count 2, the § 924(c) count, Gordon received a consecutive 60-month sentence of 

imprisonment. 

 2

Count 1 charged that Gordon “did knowingly and willfully obstruct, delay and affect 

commerce . . . by robbery, as the terms ‘commerce’ and ‘robbery’ are defined in Title 18, United 

States Code, Section 1951(b), in that [Gordon] did unlawfully take and obtain property . . . from 

the person, presence and custody of an employee . . . against her will, by means of actual and 

threatened force, violence and fear of injury to her person; in violation of Title 18, United States 

Code, Sections 1951(a), and . . . 2.”

Count 2 charged that Gordon “did knowingly use and carry firearms . . . during and in 

relation to a crime of violence which is a felony prosecutable in a court of the United States, that is, 

a violation of Title 18, United States Code, Section 1951(a), as set forth in Count [1] of the 

indictment; all in violation of Title 18, United States Code, Section 924(c), and . . . Section 2.” 

(emphasis added). 

3

Gordon’s applications do not raise an ACCA claim. This is because Gordon did not 

receive an ACCA enhancement for his felon-in-possession conviction.

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IV. GORDON’S § 924(c) CLAIM

Distinct from the sentence provisions in § 924(e)(1) of the ACCA, § 924(c)(1)(A) provides

for a separate consecutive sentence if any person uses or carries a firearm during and in relation to 

a crime of violence or drug trafficking crime, or possesses a firearm in furtherance of such crimes, 

as follows:

Except to the extent that a greater minimum sentence is otherwise provided by this 

subsection or by any other provision of law, 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, shall, in addition to the 

punishment provided for such crime of violence or drug trafficking crime—(i) be 

sentenced to a term of imprisonment of not less than 5 years; (ii) if the firearm is 

brandished, be sentenced to a term of imprisonment of not less than 7 years; and 

(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less 

than 10 years.

18 U.S.C. § 924(c)(1)(A). For the purposes of § 924(c), § 924(c)(3)(A) and (B) define “crime of 

violence” as an offense that is a felony and:

(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). The former clause is referred to herein as the “use-of-force” clause and that later 

clause as the “§ 924(c)(3)(B) residual clause.” 

We recently recognized that it is an open question whether Johnson applies to the residual 

clause set out in 18 U.S.C. § 924(c)(3)(B). In re Pinder, ___ F.3d ___, ___, No. 16-12084, 2016 

U.S. App. LEXIS 10395, at *4 (11th Cir. June 1, 2016). In Pinder, this Court considered whether 

a companion charge of conspiracy to commit Hobbs Act robbery might qualify as a crime of 

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violence under § 924(c). Id. at *4 n.1. Because it was not clear whether conspiracy to commit 

Hobbs Act robbery qualified as a crime of violence under § 924(c), this Court concluded that the 

applicant had made a prima facie case that Johnson impacted the validity of his § 924(c) 

conviction. Id.

In some cases, it has been clear that the § 924(c) companion conviction qualifies as a crime 

of violence under § 924(c). See, e.g., In re Saint Fleur, ___ F.3d ___, ___, No. 16-12299, 2016 

U.S. App. LEXIS 10395, at *9-10 (11th Cir. June 8, 2016) (concluding that a companion 

conviction for substantive Hobbs Act robbery “clearly qualifies as a ‘crime of violence’ under the 

use-of-force clause in § 924(c)(3)(A)” without regard to the § 924(c)(3)(B) residual clause); In re 

Hines, ___ F.3d ___, ___, No. 16-12454, 2016 U.S. App. LEXIS 10394, at *6 (11th Cir. June 8, 

2016) (concluding that a companion conviction for armed bank robbery, in violation of 18 U.S.C. 

§ 2113(a) and (d), “clearly” qualifies as a “crime of violence” under the § 924(c)(3)(A) 

use-of-force clause without regard to the § 924(c)(3)(B) residual clause); In re Colon, ___ F.3d 

___, ___, Nos. 16-13021-J, 16-13264-J, 2016 U.S. App. LEXIS 11645, at *9 (11th Cir. June 24, 

2016) (concluding that a companion conviction for aiding and abetting a Hobbs Act robbery 

“clearly qualifies as a ‘crime of violence’ under the use-of-force clause in § 924(c)(3)(A)” without 

regard to the § 924(c)(3)(B) residual clause). In those cases, the § 924(c) companion conviction 

clearly qualified as a crime of violence.

The applicant’s argument that Saint Fleur and Hines conflict with Pinder fails because the 

companion conviction in Pinder was conspiracy to commit Hobbs Act robbery, while Saint Fleur 

and Hines involved different companion convictions, that is substantive Hobbs Act robbery and 

armed bank robbery under § 2113(a) and (d), respectively. Indeed this Court specifically 

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distinguished Pinder in both Saint Fleur and Hines. Therefore, we reject the claim that under the 

prior panel precedent rule, Pinder, not Saint Fleur and Hines, control Gordon’s case.4

Accordingly, Saint Fleur controls and we need not decide the § 924(c)(3)(B) residual 

clause issue in this particular case because even if Johnson’s rule about the ACCA residual clause 

applies to the § 924(c)(3)(B) residual clause, Gordon’s claim does not meet the statutory criteria 

for granting his § 2255(h) application. This Court has held that a companion Hobbs Act robbery 

conviction, such as Gordon’s, qualifies as a “crime of violence” under the use-of-force clause in 

§ 924(c)(3)(A) without regard to the § 924(c)(3)(B) residual clause. Saint Fleur, 2016 U.S. App. 

LEXIS 10395, at *9-10. This means Gordon’s § 924(c) sentence would be valid even if Johnson

makes the § 924(c)(3)(B) residual clause unconstitutional. 

V. CONCLUSION

Because Gordon has failed to make a prima facie showing that his proposed claim meets 

the statutory criteria, his applications for leave to file a second or successive motion are hereby 

DENIED.

 4

Similarly, the argument that Saint Fleur and Hines conflict with this Court’s subsequent 

order in Rogers fails because Rogers involved an ACCA claim, not a § 924(c) claim. Indeed, 

Rogers neither conflicts with our holdings in Saint Fleur and Hines, nor informs our analysis of 

Johnson-based § 924(c) claims. 

In ACCA cases like Rogers, the federal sentencing court must examine prior state court 

convictions, often from multiple state jurisdictions, to determine whether those convictions qualify 

as violent felonies for the purposes of applying a federal sentencing enhancement. 

In contrast, in § 924(c) cases, the federal sentencing court and this Court examine whether 

a contemporaneous companion federal conviction, charged in the same federal indictment as the 

§ 924(c) charge itself, qualifies as a crime of violence. As in Gordon’s case, the § 924(c) charge 

expressly identifies the companion crime of violence. Then, the federal sentencing judge either 

accepts a guilty plea of, or conducts a trial on, the § 924(c) charge and its companion crime of 

violence. This makes the determination of whether a defendant has made a prima facie case of a 

Johnson-based claim decidedly easier and clearer in § 924(c) cases. 

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