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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-11565
Non-Argument Calendar
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D.C. Docket Nos. 0:16-cv-61493-WPD; 0:13-cr-60267-WPD-1
JEAN CAZY,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 6, 2020)
Before WILSON, MARTIN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Jean Cazy, a federal prisoner, appeals the district court’s denial of his
28
U.S.C. § 2255 motion to vacate his conviction under
18 U.S.C. § 924(c)(1)(A) and
his corresponding sentence. He argues that his conviction is now invalid in light of
the Supreme Court’s ruling in United States v. Davis, 588 U.S. ___,
139 S. Ct.
2319 (2019). Although the government opposed Cazy’s motion in the district
court, it now concedes that Cazy’s § 924(c)(1)(A) conviction must be vacated.
After careful consideration, we reverse the district court’s denial of Cazy’s § 2255
motion and remand for resentencing.
I.
In 2014, Cazy was convicted of conspiracy to commit Hobbs Act robbery, in
violation of
18 U.S.C. § 1951(a) (Count 1); conspiracy to possess with intent to
distribute 5 kilograms or more of cocaine, in violation of
21 U.S.C. § 846 (Count
2); attempt to possess more than 500 grams, but less than 5 kilograms of cocaine,
in violation of
21 U.S.C. § 846 (Count 3); conspiracy to use, carry, or possess a
firearm during the commission of a crime of violence, in violation of
18 U.S.C.
§ 924(o) (Count 4); using, carrying, and possessing a firearm in furtherance of the
crime of violence set forth in Count 1, in violation of
18 U.S.C. § 924(c)(1)(A)
(Count 5); using, carrying, and possessing a firearm in furtherance of the drug-
trafficking offenses set forth in Counts 2 and 3, in violation of § 924(c)(1)(A)
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(Count 6). He was sentenced to a total term of 248-months imprisonment, which
was later reduced to 211-months imprisonment.
In 2016, Cazy filed a motion under
28 U.S.C. § 2255, arguing, among other
things, that the Supreme Court’s decision in Johnson v. United States, 576 U.S.
___,
135 S. Ct. 2551 (2015), invalidated his § 924(c) conviction in Count 5. The
district court denied Cazy’s motion as to Count 5, holding that Cazy could not
benefit from Johnson because of the concurrent sentence doctrine. Cazy appealed,
and a panel of this Court vacated and remanded, holding that the district court
erred in applying the concurrent sentence doctrine. Cazy v. United States, 717 F.
App’x 954, 956 (2017) (per curiam) (unpublished). On remand, the district court
denied Cazy’s claim based on our decision in Ovalles v. United States,
861 F.3d
1257 (11th Cir. 2017), which held that Johnson did not invalidate the residual
clause in
18 U.S.C. § 924(c).
Id. at 1265.
Cazy appealed, and while his appeal was pending, the Supreme Court issued
its decision in Davis, which extended its holding in Johnson to § 924(c)’s residual
clause. See
139 S. Ct. at 2326, 2336. We thereafter granted a certificate of
appealability (“COA”) on the issue of whether Cazy’s “
18 U.S.C. § 924(c)(1)(A)
conviction for the crime of using, carrying, or possessing a firearm in furtherance
of a companion offense of conspiracy to commit Hobbs Act robbery is
unconstitutional in light of [Davis].” On appeal, Cazy says his § 924(c) conviction
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in Count 5 is unconstitutional because it is premised on Hobbs Act conspiracy,
which no longer qualifies as a crime of violence.1 The government concedes that
Cazy’s conviction must be vacated in light of Davis and this Court’s subsequent
precedent.
II.
In reviewing a district court’s denial of a § 2255 motion, we review the
court’s legal conclusions de novo and its factual findings for clear error. Brown v.
United States,
942 F.3d 1069, 1072 (11th Cir. 2019) (per curiam).
III.
Under § 924(c), a person who uses a firearm during and in relation to a
crime of violence is subject to a mandatory consecutive prison sentence.
18 U.S.C.
§ 924(c)(1). A “crime of violence” is defined 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.”
Id. § 924(c)(3). We commonly
refer to § 924(c)(3)(A) as the “elements clause” and to § 924(c)(3)(B) as the
1
Cazy has filed a supplemental brief arguing that his § 924(c) conviction in Count 6 is no longer
valid. Because the scope of our review is limited to the issue specified in the COA—whether
Cazy’s § 924(c) conviction in Count 5 is invalid after Davis—we do not consider his arguments
as to Count 6. See McKay v. United States,
657 F.3d 1190, 1195 (11th Cir. 2011).
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“residual clause.” In Davis, the Supreme Court struck down
§ 924(c)(3)(B)’s residual clause as unconstitutionally vague.
139 S. Ct. at 2323–
24, 2336. This Court has since held that Davis announced a new rule of
constitutional law that applies retroactively to cases on collateral review. See In re
Hammoud,
931 F.3d 1032, 1037–39 (11th Cir. 2019) (per curiam). This Court has
also held that conspiracy to commit Hobbs Act robbery is not categorically a crime
of violence under § 924(c)’s elements clause. Brown, 942 F.3d at 1075–76.
Cazy’s conviction for conspiracy to commit Hobbs Act robbery does not
qualify as a crime of violence under § 924(c)’s now-defunct residual clause in light
of Davis, nor does it qualify under § 924(c)’s elements clause in light of Brown.
Because Cazy’s § 924(c) conviction in Count 5 was predicated solely on
conspiracy to commit Hobbs Act robbery, his conviction is invalid and must be
vacated. We therefore reverse the district court’s denial of Cazy’s § 2255 motion
and remand for resentencing.2
REVERSED AND REMANDED.
2
The government invites us to “remand[] with limited instructions to vacate only Count 5’s
§ 924(c) sentence, but not permit a full resentencing.” Br. of Appellee at 8 n.4. That is because,
as the government points out, Cazy’s 60-month sentence for his Count 5 conviction was imposed
concurrently with a separate 60-month sentence for his § 924(c) conviction in Count 6, which is
unaffected by this opinion. We decline to issue any such instruction, and instead allow the
district court to decide in the first instance the government’s request for limited resentencing.
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