Case: 17-14806 Date Filed: 11/14/2019 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-14806
Non-Argument Calendar
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D.C. Docket Nos. 0:16-cv-61366-DMM,
0:13-cr-60006-DMM-2
KERINO BELIZAIRE,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 14, 2019)
Before TJOFLAT, BRANCH and JULIE CARNES, Circuit Judges.
PER CURIAM:
On January 31, 2013, Kerino Belizaire pled guilty to a two-count
information charging him in Count 1 with conspiracy to commit a Hobbs Act
robbery, in violation of 18 U.S.C. § 1951(a) (Count 1), and in Count 2 with using
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and carrying a firearm “during and in relation to a crime of violence,” i.e., the
conspiracy to commit Hobbs Act robbery alleged in Count 1, in violation of 18
U.S.C. § 924(c)(1)(A). The District Court sentenced Belizaire to imprisonment for
a term of 27 months on Count 1 and a consecutive term of 60 months on Count 2,
for a total term of 87 months.
On July 29, 2013, Belizaire moved the District Court pursuant to 28 U.S.C.
§ 2255 to vacate his Count 2 sentence on the ground that the “residual” or “risk-of-
force” clause in § 924(c)(3)(B) was unconstitutional in light of Johnson v. United
States,
135 S. Ct. 2551 (2015), which struck down the residual clause of the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2))B)((ii). He further argued
that if § 924(c)’s residual clause was invalidated, his companion conviction for
conspiracy to commit Hobbs Act robbery would not qualify as a “crime of
violence” for § 924(c) purposes. The District Court concluded that Johnson’s
holding did not apply to § 924(c)(3)(B) and denied Belizaire’s motion. It then
granted a certificate of appealability on the issue of whether Johnson applies to
§ 924(c)(3)(B).1
1
Although Belizaire has apparently been released from physical custody, his § 2255
motion does not fail on “in custody” grounds because he filed it when he was still imprisoned, and
he is still subject to a four-year term of supervised release. See 28 U.S.C. § 2241(c)(3); Carafas
v. LaVallee,
391 U.S. 234, 238 (1968); Maleng v. Cook,
490 U.S. 488, 491-92 (1989).
2
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While Belizaire’s appeal was pending, the Supreme Court invalidated the
residual clause in § 924(c)(3)(B), finding that it was unconstitutionally vague.
United States v. Davis,
139 S. Ct. 2319, 2336 (2019). Shortly thereafter, we held
that the Supreme Court’s ruling in Davis announced a new substantive rule of
constitutional law, made retroactive to other cases on collateral review. In re
Hammoud,
931 F.3d 1032, 1037–39 (11th Cir. 2019). We therefore vacate the
District Court’s decision and remand to the case to allow the Court to determine
whether Belizaire is entitled to relief under § 2255 in light of the above decisions.
See Antoine v. United States, — F. App’x —, No. 17-14807,
2019 WL 3526408
(11th Cir. Aug. 2, 2019) (Mem.) (vacating and remanding the appeal of Belizaire’s
co-conspirator, who was charged under the same statute and presented identical
arguments on appeal).
VACATED and REMANDED.
3
