[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 17

- 12146 Non

- Argument Calendar

________________________ D.C. Docket No s . 1:16

- cv - 22409

- UU , 1:12

- cr - 20937

- UU

- 1
QUANDRE COUNCIL, Individually, Petitioner

- Appellant,

versus UNITED STATES OF AMERICA, Respondent

- Appellee.

____________ ____________ Appeal from the United States District Court for the Southern District of Florida

________________________ (December 4, 2017) Before TJOFLAT , JORDAN and NEWSOM , Circuit Judges. PER CURIAM:

Case: 17-12146 Date Filed: 12/04/2017 Page: 1 of 42 Quandre Council, a federal prisoner serving a 96

- month sentence for H obbs Act robbery and possession of a firearm in furtherance of a crime of violence , appeals the district court’s denial of his motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255. In his initial motion and o n appeal, Mr. Co uncil
argue s that his conv iction for Hobbs Act robbery does not constitute a crime of violence for purposes of 18 U.S.C. § 924(c) after Johnson v. United States , 135 S. Ct. 2551 (2015) , and because it does not categorically qualify as a crime of violence under t he “use of force” clause.
I In denying Mr. Council’s § 2255 motion, t he district cou rt held that Hobbs Act robbery qualifies as a crime of violence under § 924(c)’s “ use - of

- force ” clause, but found that the ( r esidual ) “risk

- of

- force” clause of § 924(c) was unconstitutio nally vague in light of Johnson

. Thereafter, Mr. Council requested and was granted a certificate of appealability on “ whether a conviction for Hobbs Act robbery categorically qu alifies as a ‘crime of violence’ under § 9 24(c)’s ‘use

of

- force’ clause in light of Johnson

. ”
II When reviewing a district court’s denial of a § 2255 motion , we review questions of law de novo and factual findings for clear error

. See Lynn v. United
States , 365 F.3d 1225, 1232 (11th Cir. 2004)

. We can affirm for any reason

Case: 17-12146 Date Filed: 12/04/2017 Page: 2 of 43 supported by the record, even if not relied upon by the district court

. See United
States v. Al

- Arian , 514 F.3d 1184, 1189 (11th Cir. 2008).
III The Supreme Court invalidated the “residual clause” of the Armed Career Criminal Act, 28 U.S.C. § 924(e), in Johnson , but made clear that its decision did

“ not call into question application of the Act to the four enumerated offenses, or the remainder of the Act’s definition of a violent felony .” 135 S. Ct. at 2563

. A separate provision requires additional penalties for a defendant who uses a firearm during a violent felony or a drug trafficking crime. See § 924(c). This provision defines a “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. § 924 (c)(3)

. T he “ risk

- of

- force clause, ” Section 924(c)(3)(B), uses language similar to that found in § 924(e)’s now

- unconstitutional residual clause, and that forms the basis for Mr. Council’ s argument. Unfortunately for Mr. Council, we recently held in Ovalles v. United States , 861 F.3d 1257 , 1267 (11th Cir. 2017) , that § 924(c)’s “risk

- of

- force” ( i.e., residual ) clause is not unconstitutionally vague

. In making our assessment, we noted “material textual differences” between the clauses. See id. at 1263. W e also explained that § 924(c) “ is not concerned with

Case: 17-12146 Date Filed: 12/04/2017 Page: 3 of 44 recidivism, but rather with whethe r the instant firearm was used during and in relation to the predicate crime of violence .” Id. at 1265. Because of the close

nexus needed between a firearm offense and a predicate crime, a § 924(c) residual clause “ crime of violence determination [is] mo re precise and more predictable ” than a residual clause determination under § 924(e )

. We thus held that textual and application differences between § 924(c) and § 924(e ) allow § 924(c) ’s “risk

- of

force” clause to withstand attack under Johnson

. Id

. at 1266. IV Given our decision in Ovalles , Mr. Council’s sentence is affirmed

. AFFIRMED. Case: 17-12146 Date Filed: 12/04/2017 Page: 4 of 4