[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 16

- 13508 Non

- Argument Calendar

________________________ D.C. Docket No s . 0:16

- cv - 60929

- WPD , 0:14

- cr - 30277

- WPD

- 2
DANNY HERRERA, Petitioner

- Appellant,

versus UNITED STATES OF AMERICA, Respondent

- Appellee.

________________________ Appeal from the United States District Court fo r the Southern District of Florida

________________________ (January 10, 2019) Before WILSON , JILL PRYOR, and JULIE CARNES , Circuit Judges. PER CURIAM: Danny Herrera pleaded guilty to possession of a firearm during a crime of violence or drug

- traffickin g crime under 18 U.S.C. § 924(c), which was premised

Case: 16-13508 Date Filed: 01/10/2019 Page: 1 of 52 on conspiracy to commit Hobbs Act robbery under 18 U.S.C. § 1951. He now appeals the district court’s denial of his motion to vacate his 60

- month sentence under 28 U.S.C. § 2255. Herrera argues that th e district court erred in concluding that the Supreme Court’s ruling in Johnson v. United States , 135 S. Ct. 2551 (2015), did not affect Herrera’s conviction under 18 U.S.C. § 924(c). The government responds that Herrera’s appeal is barred by the sentence

- appeal waiver in Herrera’s plea agreement, and alternatively, that Herrera’s conviction is unaffected by Johnson . After careful review, we affirm.

I.
We review the validity of a sentence

- appeal waiver de novo. United States v. Johnson , 541 F.3d 1064, 1066 (11th Cir. 2008). Plea agreements “are like contracts,” and “[a]bsent some indication that the parties intended otherwise,” the language of the agreement is given its “ordinary and natural meaning.” United States v. Rubbo , 396 F.3d 1330, 1334 (11th Cir. 2005). Any ambiguities in the agreement are resolved in favor of the defendant. United States v. Jeffries , 908 F.2d 1520, 1523 (11th Cir. 1990). The plain language of Herrera’s sentence

appeal waiver did not include his right to collaterally attack his conviction and sentence using 28 U.S.C. § 2255. As a result, the waiver does not foreclose this collateral challenge to his conviction or sentence. Cf. Williams v. United States ,

Case: 16-13508 Date Filed: 01/10/2019 Page: 2 of 53 396 F.3d 1340, 1341

– 42 (11th Cir. 2005) (holding that sentence

- appeal waiver applied to the defendant’s § 2255 claim at sentencing because the waiver expressly included the defendant’s right to collaterally attack his sentence).

II.
In an appeal challenging the district court’s resolution of a § 2255 motion, we review factual findings for clear error and legal issues de novo. Lynn v. United States , 365 F.3d 1225, 1232 (11th Cir. 2004) (per curiam). Herrera argues that the district court erred in concluding that his conviction under 18 U.S.C. § 9 24(c) is unaffected by the Supreme Court’s ruling in Johnson

. Johnson involved the Armed Career Criminal Act (ACCA), which imposes a heightened sentence on a defendant with three prior convictions for either “a violent felony or serious drug offense.” Se e Johnson , 135 S. Ct. at 2557

– 58; 18 U.S.C. § 924(e)(1). The ACCA defines “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 the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another . . . . Case: 16-13508 Date Filed: 01/10/2019 Page: 3 of 54 18 U.S.C. § 924(e)(2)(B). The first prong is th e “elements clause.” See United States v. Owens , 672 F.3d 966, 968 (11th Cir. 2012). The second prong contains the “enumerated crimes” clause and the “residual clause.” See id. In Johnson , the Supreme Court held that the residual clause of the ACCA

w as unconstitutionally vague. See 135 S. Ct. at 2557

– 58, 2563. Separate from § 924(e)’s residual clause at issue in Johnson , Herrera was convicted under § 924(c), which imposes a mandatory consecutive sentence for a defendant who uses a firearm during a “ crime of violence” or “drug trafficking crime.” 18 U.S.C. § 924(c)(1). Section 924(c)(3) defines a “crime of violence” as any crime, punishable by a term of imprisonment exceeding one year, that: (A) has as an element the use, attempted use, or threatened u se 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. In this Court’s recent e n banc decision in Ovalles v. United States , 905 F.3d 1231 (11th Cir. 2018) (en banc ), we held that § 924(c)(3)(B)’s residual clause is not unconstitutionally vague so long as the statute i s interpreted to embody a conduct

- based approach that accounts for the actual, real

- world facts of the companion offense’s commission, as opposed to the categorical approach. Id. at 1253. Herrera concedes that conspiracy to commit Hobbs Act robbery is a crime

Case: 16-13508 Date Filed: 01/10/2019 Page: 4 of 55 of violence under § 924(c)(3)(B)

. See United States v. St. Hubert , 883 F.3d 1319, 1327

– 28 (11th Cir. 2018). Moreover, under Ovalles ’ conduct

- based approach, Herrera committed a crime of violence. Herrera signed a written factual proffer in which h e admitted to conspiring to commit a home invasion robbery. The factual proffer also contained details of the items uncovered after a search of the defendants and their vehicle, including two lo aded guns, ammunition, a ski mas k, and zip ties. Like in Ovalles ,

“ [e]specially when layered on top of [Herrera’s] own admission to the overtly violent charge” of conspir acy to commit Hobbs Act robbery and his concession on appeal, the government’ s factual proffer leads to the conclusion that Herrera committed a “crime of violence” within the meaning of § 924(c)(3)(B). Herrera’s argument that Johnson affects his conviction is thus foreclosed by Ovalles

. AFFIRMED. Case: 16-13508 Date Filed: 01/10/2019 Page: 5 of 5