[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 16-17658

Non-Argument Calendar

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D.C. Docket Nos. 8:16-cv-01729-SCB-TGW,

8:11-cr-00309-SCB-TGW-1

JOSHUA MICHAEL WILKES, 

 Petitioner–Appellant,

 versus

UNITED STATES OF AMERICA, 

 Respondent–Appellee.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(January 27, 2020)

Before WILSON, GRANT, and LUCK, Circuit Judges.

PER CURIAM: 
2

Joshua Wilkes, a federal prisoner proceeding with counsel, appeals 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 Wilkes on 

the following issues: “[(1)] [w]hether the District Court erred in concluding Mr. 

Wilkes’s motion was untimely and [(2)] whether his convictions under 18 U.S.C. 

§ 924(c), predicated on Hobbs Act robbery and carjacking, were unaffected by the 

Supreme Court’s ruling in Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 

(2015).” Wilkes argues that his § 2255 motion was timely under 28 U.S.C. 

§ 2255(f)(3) because he merely seeks to apply, rather than extend, the rule 

announced in Johnson. He also argues that his convictions for aiding and abetting 

the brandishing of a firearm during or in relation to Hobbs Act robbery (Count 

Three) and aiding and abetting the brandishing of a firearm during or in relation to 

carjacking (Count Five) do not qualify as crimes of violence under 18 U.S.C. 

§ 924(c)(3)(A)’s elements clause, though he acknowledges that our binding 

precedent forecloses that argument. For the following reasons, we affirm.

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). We may affirm 

on any ground supported by the record. Castillo v. United States, 816 F.3d 1300, 

1303 (11th Cir. 2016). “Although our review is limited to the issues specified in 
3

the COA, we will construe the issue specification in light of the pleadings and 

other parts of the record.” McCoy v. United States, 266 F.3d 1245, 1248 n.2 (11th 

Cir. 2001) (internal quotation mark omitted). 

Section 924(c) 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)(1)(A). In 

§ 924(c), Congress provided definitions of a “crime of violence.” See 

§ 924(c)(3)(A)–(B). However, the Supreme Court recently nullified one of those 

definitions in § 924(c)(3)(B)—widely known as the residual clause—because it 

was unconstitutionally vague. See United States v. Davis, 588 U.S. ___, 139 S. Ct. 

2319, 2324–25, 2336 (2019). Even so, § 924(c)(3)(A)—widely known as the 

elements clause—still stands. A felony offense that “has as an element the use, 

attempted use, or threatened use of physical force against the person or property of 

another” still qualifies as a “crime of violence.” § 924(c)(3)(A); see Steiner v. 

United States, 940 F.3d 1282, 1293 (11th Cir. 2019) (per curiam) (citing Davis, 

139 S. Ct. at 2336).

Further, aiding and abetting carjacking qualifies as a crime of violence for 

the purposes of § 924(c)(3)(A). Steiner, 940 F.3d at 1293. Aiding and abetting 

Hobbs Act robbery also qualifies as a crime of violence under § 924(c)(3)(A). In 

re Colon, 826 F.3d 1301, 1305 (11th Cir. 2016). And a defendant need not have 

been convicted or charged with the predicate offense for a conviction under 
4

§ 924(c). United States v. Frye, 402 F.3d 1123, 1127 (11th Cir. 2005) (per 

curiam). 

So, no matter how we construe the issues on appeal,1 they end the same way: 

affirmance. This is because, after Davis, both of Wilkes’s predicate offenses of 

aiding and abetting Hobbs Act robbery and aiding and abetting carjacking still 

qualify as crimes of violence under § 924(c)(3)(A), pursuant to our current binding 

precedent.

2

 See Steiner, 940 F.3d at 1293; In re Colon, 826 F.3d at 1305; see also

In re Pollard, 931 F.3d 1318, 1321 (11th Cir. 2019). Because we affirm on the 

merits, we need not address the procedural issue of timeliness.

AFFIRMED.

1 See In re Hammoud, 931 F.3d 1032, 1040 (11th Cir. 2019) (explaining that Johnson and Davis

claims, though similar, are distinct). In Steiner, the district court granted a COA on the question 

of whether Steiner’s § 924(c) conviction was unconstitutional in light of Johnson. Steiner, 940 

F.3d at 1288. We noted that Steiner had “recast[] his Johnson claim as a claim under . . . Davis” 

and subsequently analyzed and decided the claim under Davis. Id. at 1288, 1292–93. In his 

reply brief, Wilkes acknowledged Davis and that “the only remaining question is whether 

Wilkes’s predicate offenses of Hobbs Act robbery and carjacking qualify under the elements 

clause.”

2 See United States v. St. Hubert, 909 F.3d 335, 344 (11th Cir. 2018) (clarifying the applicability 

of the prior-panel-precedent rule), cert. denied, 139 S. Ct. 1394 (2019), and abrogated in part on 

other grounds by Davis, 139 S. Ct. at 2324–25, 2336.