United States v. Brown ( 2022 )

Appellate Case: 21-6042 Document: 010110742328 Date Filed: 09/21/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 21, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-6042
(D.C. Nos. 5:19-CV-00994-R &
MARK EDWARD BROWN, 5:06-CR-00153-R-1)
(W.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, McHUGH, and ROSSMAN, Circuit Judges.
_________________________________
Mark Edward Brown seeks a certificate of appealability (COA) to appeal the
district court’s denial of his pro se motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255. Because we conclude in light of the Supreme Court’s
decision in United States v. Taylor, 142 S. Ct. 2015 (2022), that the district court’s
denial of Brown’s motion is debatable by reasonable jurists, we grant a COA. See
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (stating COA standard). Upon
*
After examining the combined brief/application for certificate of
appealability and appellate record, this panel has determined unanimously that oral
argument would not materially assist in the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
Appellate Case: 21-6042 Document: 010110742328 Date Filed: 09/21/2022 Page: 2
consideration of Brown’s appellate brief, we remand this case to the district court to
consider in the first instance Taylor’s impact on Brown’s § 2255 motion.
Background
Brown was convicted in 2009 of attempted Hobbs Act robbery, in violation of
18 U.S.C. § 1951(a), and brandishing a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Attempted Hobbs Act robbery
was the predicate crime of violence underlying Brown’s § 924(c) conviction. He was
sentenced to 384 months’ imprisonment. We affirmed Brown’s convictions and
sentence on appeal.
Brown filed a § 2255 motion arguing that his § 924(c) conviction for
brandishing a firearm during a crime of violence is invalid under United States v.
Davis, 139 S. Ct. 2319 (2019). Davis held that the definition of crime of violence in
§ 924(c)(3)(B)—the so-called residual clause—is unconstitutionally vague. Id. at
2336. The district court denied relief because, although Davis invalidated the
residual clause, the Supreme Court left intact a separate definition of crime of
violence—the so-called elements clause—in § 924(c)(3)(A). Under the elements
clause, an offense qualifies as a crime of violence if it is a felony 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). The district court held that
attempted Hobbs Act robbery is an offense that qualifies as a crime of violence under
the elements clause. It therefore denied Brown’s § 2255 motion and subsequently
denied a COA.
2
Appellate Case: 21-6042 Document: 010110742328 Date Filed: 09/21/2022 Page: 3
While Brown’s application for a COA was pending in this court, the Supreme
Court granted a writ of certiorari in the case underlying its decision in Taylor.
Because that case presented the issue whether attempted Hobbs Act robbery is a
crime of violence under the § 924(c)(3)(A) elements clause, we abated this matter
pending the Court’s decision. We now lift the abatement and proceed to consider
Brown’s application for a COA.
Grant of COA
Brown may not appeal the district court’s denial of his § 2255 motion without
obtaining a COA. See 28 U.S.C. § 2253(c)(1)(B). To obtain a COA, he must make
“a substantial showing of the denial of a constitutional right,” § 2253(c)(2), by
demonstrating “that reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further,” Slack,
529 U.S. at 484 (internal quotation marks omitted). “Where a district court has
rejected the constitutional claims on the merits, the showing required to satisfy
§ 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or
wrong.” Id. We liberally construe Brown’s pro se COA Application. See Hall v.
Scott, 292 F.3d 1264, 1266 (10th Cir. 2002).1
1
We construe Brown’s submission captioned “Supplement to Motion for a
Certificate of Appealability” as a notice of supplemental authority filed under Federal
Rule of Appellate Procedure 28(j) regarding the Supreme Court’s decision in Taylor.
3
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In Taylor, the Supreme Court held that attempted Hobbs Act robbery does not
satisfy the elements clause in § 924(c)(3)(A). 142 S. Ct. at 2020 (“Whatever one
might say about completed Hobbs Act robbery, attempted Hobbs Act robbery does
not satisfy the elements clause.”). In light of the Supreme Court’s decision in Taylor,
reasonable jurists would debate the district court’s denial of Brown’s § 2255 motion.
We therefore grant Brown a COA on a single issue: whether attempted Hobbs Act
robbery is a crime of violence under the § 924(c)(3)(A) elements clause.2
Remand to the District Court
Rather than address in the first instance what the Court’s decision means for
Brown’s § 2255 motion, we remand this case to the district court for further
consideration in light of Taylor.
We grant Brown’s application to proceed on appeal without prepayment of
appellate fees and costs. The Clerk shall issue the mandate forthwith.
Entered for the Court
Gregory A. Phillips
Circuit Judge
2
We deny a COA on the remaining issues raised in Brown’s COA Application.
4