Bernard Edmond v. United States

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0346n.06
No. 20-1929
FILED
UNITED STATES COURT OF APPEALS Aug 22, 2022
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
)
BERNARD THOMAS EDMOND,
)
Petitioner - Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
UNITED STATES OF AMERICA, )
Respondent - Appellee. ) OPINION
)
Before: GIBBONS, WHITE, and NALBANDIAN, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Petitioner-Appellant Bernard Edmond appeals the
denial of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. The
district court granted a certificate of appealability on the issue whether Edmond’s carjacking
offenses, presented to the jury under a coconspirator theory of liability, constitute “crimes of
violence” under 18 U.S.C. § 924(c)(3)(A). The government filed a motion to vacate the certificate
of appealability as improvidently granted. Because Edmond’s carjacking offenses are crimes of
violence under § 924(c)(3)(A), we AFFIRM the denial of Edmond’s § 2255 motion, and DENY
AS MOOT the government’s motion to vacate the certificate of appealability.
I.
From 2010 to 2011, Edmond’s associates engaged in a carjacking scheme to obtain luxury
vehicles. United States v. Edmond, 815 F.3d 1032, 1038 (6th Cir. 2016), vacated on other grounds,
137 S. Ct. 1577 (2017). Usually wielding guns, they threatened valet employees and car owners,
No. 20-1929, Edmond v. United States
took the keys to the luxury vehicles, and drove the vehicles away. Id. Intermediaries then
delivered the cars to Edmond, who altered the vehicle identification numbers, paid others to falsify
title documents, and sold or traded the vehicles. Id. at 1038, 1040. There was evidence that,
although Edmond neither ordered nor took part in the carjackings, he knew that some of the
vehicles were obtained through violent means. Id. at 1041. Testimony also showed that Edmond
sought, and paid more for, vehicles with keys. Id. at 1040.
A federal grand jury indicted Edmond and others on, as relevant here, one count of
conspiracy to violate federal law under 18 U.S.C. § 371; three counts of carjacking and causing
carjacking under 18 U.S.C. §§ 2119(1) & 2; one count of attempted carjacking and causing
attempted carjacking under 18 U.S.C. §§ 2119(1) & 2;1 and four counts of using and carrying a
firearm during and in relation to a crime of violence2 under 18 U.S.C. §§ 924(c) & 2.3
1
The third superseding indictment titled the carjacking counts as “[c]arjacking [and] [c]ausing [c]arjacking”
under 18 U.S.C. §§ 2119(1) & 2. R. 109, PID 442–44. The indictment titled the attempted-carjacking count as
“[a]ttempted [c]arjacking [and] [c]ausing [a]ttempted [c]arjacking.” Id. at PID 447. The carjacking counts alleged
that Edmond “caused and induced [other defendants] to take a motor vehicle from [another person] with the intent to
cause serious bodily harm and death,” and the attempted-carjacking count alleged that Edmond “caused and induced
[another defendant] to attempt to take a motor vehicle from [another person] with the intent to cause serious bodily
harm and death.” Id. at PID 443–44, 447; see also id. at PID 442. The jury instructions described the carjacking
charges as “carjacking or causing and aiding carjacking,” and the attempted-carjacking charge as “attempted
carjacking.” R. 181, PID 3320, 3328. The verdict form titled the carjacking charges against Edmond as “[c]ausing
carjacking,” and the attempted-carjacking charge as “[c]ausing attempted carjacking.” R. 137, PID 733–34. The
carjacking statute does not reference “causing” carjacking, see 18 U.S.C. § 2119, but 18 U.S.C. § 2 states that
“[w]hoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its
commission, is punishable as a principal,” and “[w]hoever willfully causes an act to be done which if directly
performed by him or another would be an offense against the United States, is punishable as a principal.”
2
The third superseding indictment titled the § 924(c) counts as “[u]sing and [c]arrying a [f]irearm [d]uring
and in [r]elation to a [c]rime of [v]iolence.” R. 109, PID 442–44, 447. Those counts alleged that Edmond “caused
and induced [other defendants] to intentionally use and carry a firearm during and in relation to the commission of a
crime of violence.” Id. at 443–44, 447; see also id. at PID 442. The jury instructions described the § 924(c) counts
as “using or causing or aiding the use of a firearm during and in relation to a crime of violence.” R. 181, PID 3323.
The verdict form titled three of the § 924(c) charges against Edmond as “[c]ausing use or carrying of a firearm during
and in relation to carjacking,” and the other § 924(c) charge as “[c]ausing use or carrying of a firearm during and in
relation to attempted carjacking.” R. 137, PID 733–34.
3
Edmond was also indicted on two counts of causing interstate transportation of a stolen motor vehicle under
18 U.S.C. §§ 2312 & 2; one count of falsification and removal of motor vehicle identification numbers under 18 U.S.C.
§ 511; three counts of trafficking in motor vehicles with falsified, altered, or removed identification numbers under
18 U.S.C. § 2321; and one count of operating a chop shop under 18 U.S.C. §§ 2322(a)(1) and (b). Count 16—causing
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The case went to trial. The government did not suggest that Edmond had committed the
carjackings directly; rather, its theory was that, with knowledge of the carjackings, Edmond sought
and acquired the vehicles, altered their identifying information, and sold or traded them.
The district court instructed the jury that it could convict Edmond of the carjacking and
§ 924(c) charges under a coconspirator, or Pinkerton,4 theory of liability—that is, under the rule
that “all members of a conspiracy are responsible for acts committed by other members, so long
as those acts are committed to help advance the conspiracy[,] occurred after a defendant joined the
conspiracy, and are [within the] reasonably foreseeable scope of the agreement.” R. 181, PID
3318. The district court also provided an aiding-and-abetting instruction.
The jury convicted Edmond on all the relevant charges except Count 13—using and
carrying a firearm during and in relation to a crime of violence (attempted carjacking) on March
12, 2011. Edmond was sentenced to a total of 900 months, or 75 years. This court affirmed
Edmond’s conviction, holding that there was sufficient evidence to support Edmond’s carjacking
and § 924(c) convictions under a Pinkerton theory of liability. See Edmond, 815 F.3d at 1040–41.
Edmond argued on direct appeal that “the jury instructions offered two paths to conviction:
Pinkerton co-conspirator liability or aiding and abetting liability,” and that the district court “did
not correctly state the advance-knowledge requirement for aiding and abetting.” Id. at 1041. We
reasoned that “[a]ny such mistake would not alter the conviction” because “[g]iven the abundant
evidence that would permit the jury to convict on the Pinkerton co-conspirator theory, any error
in the aiding and abetting instructions did not prejudice him and thus did not affect his substantial
rights” under plain-error review. Id. We added that “several circuits have addressed this
interstate transportation of a stolen motor vehicle between November 17, 2010, and December 1, 2010—was
dismissed at trial.
4
See Pinkerton v. United States, 328 U.S. 640, 646–48 (1946).
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situation—where the judge gave a correct Pinkerton instruction and a faulty aiding and abetting
instruction—and each one upheld the convictions so long as the Pinkerton theory supported them.”
Id. (collecting cases).
The Supreme Court vacated the district court’s judgment and remanded the case for further
consideration in light of Dean v. United States, 137 S. Ct. 1170, 1176–77 (2017), which held that
trial courts can consider the length of statutorily mandated sentences for § 924(c) convictions when
administering sentences for the underlying predicate offenses. Edmond v. United States, 137 S. Ct.
1577 (2017). On remand, the district court resentenced Edmond to one day on eleven of his
convictions and a total of 660 months, or 55 years, on his three § 924(c) convictions.
Edmond filed a pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255, arguing that the “residual clause” of § 924(c)—which defines a “crime of violence” as a
felony 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,” 18 U.S.C.
§ 924(c)(3)(B)—is unconstitutionally vague, and that his trial counsel was ineffective. After the
Supreme Court decided United States v. Davis, 139 S. Ct. 2319 (2019), holding that § 924(c)’s
residual clause is, indeed, unconstitutionally vague, id. at 2336, Edmond’s appointed counsel filed
a supplemental brief, arguing that “the convictions for the various offenses for which [Edmond]
was convicted under a conspiracy theory” do not constitute crimes of violence under § 924(c),
R. 360, PID 4980.
The district court denied Edmond’s § 2255 motion, rejecting Edmond’s arguments that
carjacking is not a crime of violence; that Edmond’s Pinkerton-based carjacking convictions do
not constitute crimes of violence under § 924(c) after Davis; and that his counsel was ineffective.
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No. 20-1929, Edmond v. United States
Edmond appealed the district court’s denial of his § 2255 motion. He then filed a motion
for reconsideration and a request for a certificate of appealability. The district court denied
Edmond’s motion for reconsideration, but granted his request for a certificate of appealability
“only as to the issue of whether [Edmond’s] carjacking convictions, charged as substantive
offenses but argued, supported and instructed under a coconspirator theory of liability, qualify as
crimes of violence under § 924(c)(3)(A).” R. 412, PID 5364. The district court “f[ound] that
reasonable jurists could debate whether the carjacking charges [Edmond] was convicted of under
a coconspirator theory of liability (Pinkerton conspiracy) qualify as substantive crimes of violence
under the elements clause of 18 U.S.C. § 924(c)(3)(A).” Id.Edmond requested an expanded certificate of appealability from this court on his
ineffective-assistance-of-counsel claim, but we denied his request, leaving only the issue certified
by the district court.
The government moved to vacate the certificate of appealability as improvidently granted.
We deferred ruling on the motion to consider it with the parties’ briefs.
II.
“In reviewing the denial of a 28 U.S.C. § 2255 motion, we apply a de novo standard of
review to the legal issues and uphold the factual findings of the district court unless they are clearly
erroneous.” Greer v. United States, 938 F.3d 766, 770 (6th Cir. 2019) (quoting Hamblen v. United
States, 591 F.3d 471, 473 (6th Cir. 2009)). We review de novo whether an offense is a “crime of
violence” under § 924(c). United States v. Woods, 14 F.4th 544, 551 (6th Cir. 2021).
A.
18 U.S.C. § 924(c) states, in relevant part:
(1)(A) Except to the extent that a greater minimum sentence is otherwise provided
by this subsection or by any other provision of law, any person who, during and in
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relation to any crime of violence or drug trafficking crime . . . for which the person
may be prosecuted in a court of the United States, uses or carries a firearm, or who,
in furtherance of any such crime, possesses a firearm, shall, in addition to the
punishment provided for such crime of violence or drug trafficking crime [be
sentenced to certain penalties depending on the circumstances]. . . .
(3) For purposes of this subsection the term “crime of violence” means 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.
Courts refer to § 924(c)(3)(A) as the “elements clause,” and § 924(c)(3)(B) as the “residual clause.”
See Davis, 139 S. Ct. at 2324.
In Davis, the Supreme Court held that § 924(c)’s residual clause is unconstitutionally
vague. Id. at 2336. “After Davis, a predicate offense qualifies as a crime of violence only if use
of force is an element of the offense, and this excludes conspiracy charges.” Woods, 14 F.4th at
552; see also Portis v. United States, 33 F.4th 331, 334 (6th Cir. 2022) (“Since Davis, we have
limited the statute’s application further, ruling that a conspiracy to commit Hobbs Act robbery
does not count as a predicate ‘crime of violence’ for § 924(c) purposes, whether under the residual
clause or the elements clause.” (citing United States v. Ledbetter, 929 F.3d 338, 361 (6th Cir.
2019)).5
“We use a categorical approach to determine whether an offense constitutes a crime of
violence for purposes of § 924(c)(3). Under this approach, we focus[] on the statutory definition
5
In Ledbetter, the parties agreed that conspiracy to commit Hobbs Act robbery is not a “crime of violence”
under the elements clause. See 929 F.3d at 361. “Because the Government relie[d] only on th[e] now-invalidated
[residual] clause to support [two defendants’] convictions under § 924(c),” we vacated the defendants’ § 924(c)
convictions. Id.
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of the offense, rather than the manner in which an offender may have violated the statute in a
particular circumstance.” Manners v. United States, 947 F.3d 377, 379 (6th Cir. 2020) (citations
and internal quotation marks omitted). Carjacking under 18 U.S.C. § 2119 is a crime of violence
under § 924(c)’s elements clause. United States v. Jackson, 918 F.3d 467, 486 (6th Cir. 2019).
Edmond argues that the predicate offenses for his § 924(c) charges are actually conspiracy
to commit carjacking offenses, rather than substantive carjacking offenses. Edmond reasons that
he “was not part of any carjackings,” he “was never present,” and the government presented only
a Pinkerton theory of liability at trial. Appellant’s Br. at 16; see also id. at 29.
This argument is unavailing in part because the indictment, the government’s arguments at
trial, the jury instructions, and the verdict form all indicate that Edmond’s § 924(c) charges were
based on the predicate offenses of substantive carjacking, not his single conspiracy offense.
See Woods, 14 F.4th at 552–53 (reasoning that the defendants’ § 924(c) convictions were not
predicated on a conspiracy charge because the indictment and jury instructions clearly stated that
the § 924(c) charges were based on substantive offenses).
In the operative third superseding indictment, each of the § 924(c) charges of which
Edmond was convicted referred explicitly to a corresponding substantive carjacking charge. The
§ 924(c) charge in Count 3 referred explicitly to the carjacking charge in Count 2 as the predicate
crime of violence; the § 924(c) charge in Count 5 referred explicitly to the carjacking charge in
Count 4 as the predicate crime of violence; and the § 924(c) charge in Count 7 referred explicitly
to the carjacking charge in Count 6 as the predicate crime of violence.
Further, in closing argument, the government explicitly connected each § 924(c) offense
to its corresponding substantive carjacking offense. R. 181, PID 3159 (“And so we have the
carjackings and the gun charges. They are paired together in order. There are seven of them. So
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we have Count 2. That will be a carjacking. The gun [charge] for that is right behind it, Count 3.
Then we go like that all the way through to Count 15.”); id. at PID 3187 (“So they get their new
crime car. Take it. Perfect tool, and they use it to commit Counts 4 and 5 [a carjacking and a
§ 924(c) offense].”); id. at PID 3192 (“Here we are[,] Joseph Campau, January 25, 2011, Counts
6 and 7 [a carjacking and a § 924(c) offense].”).
Additionally, the jury instructions explained that the predicate offenses for the § 924(c)
convictions were the substantive carjacking offenses. Id. at PID 3323–24 (“[T]o find that a
defendant committed a firearm crime that’s charged in Count 3, you must first find that he
committed or caused or aided the carjacking crime that is charged in Count 2. In order to find that
a defendant committed the firearm crime that is charged in Count 5, you must first find that he
committed or caused or aided the carjacking crime that is charged in Count 4, and so on for the
rest of [the] firearm counts.”).
Finally, the verdict form refers to the § 924(c) counts as “[c]ausing use or carrying of a
firearm during and in relation to carjacking.” R. 137, PID 733–34 (emphasis added).
To the extent Edmond argues that the government’s exclusive reliance on Pinkerton
liability to establish his guilt of the substantive offenses necessarily means that those predicate
offenses are not crimes of violence under § 924(c), we reject that argument. This court’s decision
in Woods is instructive. In Woods, a jury convicted brothers Antoine and Austin Woods of several
offenses under the Violent Crimes in Aid of Racketeering Act (VICAR). 14 F.4th at 548. The
jury convicted Antoine of conspiracy to commit murder in aid of racketeering, attempted murder
in aid of racketeering, assault with a dangerous weapon in aid of racketeering, two § 924(c)
offenses, and obstruction of justice; the jury convicted Austin of conspiracy to commit murder in
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aid of racketeering and a § 924(c) offense. Id. The predicate offenses alleged in the § 924(c)
charges were attempted murder and assault with a dangerous weapon. See id. at 552.
On appeal, the defendants argued that those offenses were “not proper predicate offenses
because the jury instructions allowed them to be convicted of the [§] 924(c) charges under a theory
of Pinkerton liability.”6 Id. We rejected that argument, reasoning:
The Woods brothers’ argument conflates the predicate crimes of violence
underlying their § 924(c) conviction (which are not conspiracy charges) and the
basis of liability for the [§] 924(c) charges, which may have been Pinkerton
liability. The Supreme Court’s only inquiry in Davis was whether the § 924(c)
residual clause was unconstitutionally vague, not whether Pinkerton liability is a
proper basis for a [§] 924(c) conviction. See Davis, 139 S. Ct. at 2327. Finding the
Woods brothers guilty through a theory of Pinkerton liability is still permissible as
long as the underlying predicate offenses qualify as crimes of violence under the
§ 924(c) elements clause. United States v. Myers, 102 F.3d 227, 238 (6th Cir. 1996)
(affirming a § 924(c) conviction based on Pinkerton liability). Because both
VICAR attempted murder and VICAR assault with a dangerous weapon are crimes
of violence,7 not conspiracy crimes, the Woods brothers’ argument fails.
In Davis, the conspiracy charge itself was not at issue. Rather, the Court clearly
stated that it was the fact that the conspiracy charge rested solely on § 924(c)’s
residual clause, and not the elements clause[,] that precluded liability. Davis, 139
S. Ct. at 2325. Substantive charges like VICAR murder, on the other hand, rely on
the elements clause, not the unconstitutionally vague residual clause. This is true
whatever legal theory of liability the jury relies on to find the defendant guilty of
§ 924(c). . . .
The jury’s potential reliance on Pinkerton liability to convict of the [§] 924(c)
offenses does not change this outcome. Other circuits have come to a similar
conclusion, finding that a defendant can be convicted of a § 924(c) charge based on
a theory of Pinkerton liability.
14 F.4th at 552–53 (collecting cases).
6
Austin Woods was convicted of one of the § 924(c) offenses, but was not charged with either of the predicate
offenses. Woods, 14 F.4th at 553. We explained that “[c]harging the underlying predicate offense is not required for
liability under § 924(c); it is enough if the defendant may be prosecuted in a court of the United States for the predicate
offense.” Id. at 554. Of course, the government must prove beyond a reasonable doubt that the defendant in fact
committed the underlying predicate offense. United States v. Nelson, 27 F.3d 199, 200–01 (6th Cir. 1994).
7
We note that after Woods was decided, the Supreme Court held that attempted Hobbs Act robbery is not a
“crime of violence” under § 924(c)’s elements clause. United States v. Taylor, 142 S. Ct. 2015, 2020 (2022).
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To be sure, this case differs from Woods in that here, the district court instructed the jury
that it could convict Edmond of the predicate offenses and the § 924(c) charges based on a
Pinkerton theory, but the jury charge in Woods included a Pinkerton instruction for the § 924(c)
charges only. Accordingly, the Woods brothers argued that their VICAR offenses were not proper
predicate “crimes of violence” because they could have been convicted of the § 924(c) offenses
based on a Pinkerton theory of liability. See id. at 552. By contrast, Edmond argues that his
carjacking offenses are not proper predicate “crimes of violence” because he was convicted of
those offenses based on Pinkerton liability.
That distinction does not render Woods inapposite. Woods not only establishes that “a
defendant can be convicted of a § 924(c) charge based on a theory of Pinkerton liability,” id. at
553, but also suggests that a defendant can be convicted under § 924(c) based on a predicate
substantive offense proven under a Pinkerton theory of liability. There is no indication in Woods
that Austin Woods committed attempted murder and assault with a dangerous weapon—the
predicate offenses for his § 924(c) conviction—as a principal. Austin Woods went with fellow
gang members, including Antoine, to surveil a house associated with a rival gang member. Id. at
549. He also texted Antoine a link to a YouTube video showing the address of the rival gang
member’s grandmother’s house, and told him that he believed that the rival gang member was
hiding there. Id. Later, other gang members—but not Austin—fired shots into the house. Id. at
550, 554. We concluded that there was sufficient evidence to convict Austin Woods of the
predicate offenses for his § 924(c) charge under a Pinkerton theory of liability because he was part
of the conspiracy on the day of the shooting, the shooting was “intended to advance” the gang, and
the shooting was “reasonably foreseeable to [him].” Id. at 554–55.
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Additionally, Woods cited United States v. Henry, 984 F.3d 1343 (9th Cir. 2021),
approvingly. In that case, Henry and three codefendants were charged with a conspiracy offense,
armed bank robberies, bank robberies, and firearm offenses under § 924(c). Id. at 1347.
The indictment alleged that Henry remained outside the banks while his codefendants robbed the
banks. Id. After a jury convicted Henry, he argued on appeal that Davis prohibited using his
armed-bank-robbery convictions, based on Pinkerton liability, as predicates for his § 924(c)
convictions. Id. at 1354. The Ninth Circuit rejected that argument because armed bank robbery
“does have violence as an element,” and “[d]efendants found guilty of armed bank robbery under
either a Pinkerton or aiding-and-abetting theory are treated as if they committed the offense as
principals.” Id. at 1355–56. The court explained that “Davis does not conflict with or undermine
the cases upholding § 924(c) convictions based on Pinkerton liability.” Id. at 1356. Like Henry’s
predicate offenses, Edmond’s predicate offenses were based on Pinkerton liability.
We have held that a defendant need not have committed the predicate substantive crime as
a principal to be convicted under § 924(c). In United States v. Richardson, 948 F.3d 733 (6th Cir.
2020), the defendant was convicted of five counts of aiding and abetting Hobbs Act robbery, and
five § 924(c) counts. Id. at 737. This court held that aiding and abetting Hobbs Act robbery is a
crime of violence under § 924(c)’s elements clause, id. at 741, reasoning:
There is no distinction between aiding and abetting the commission of a crime and
committing the principal offense. Aiding and abetting is simply an alternative
theory of liability indistinct from the substantive crime. Thus, under 18 U.S.C. §
2, an aider and abettor is punishable as a principal. So to sustain a conviction under
§ 924(c), it makes no difference whether [the defendant] was an aider and abettor
or a principal.
Id. at 741–42 (citations omitted). Similarly, under a Pinkerton theory of liability, “a defendant
may be convicted as a principal even if he did not participate in the offense.” United States v.
Hills, 27 F.4th 1155, 1182 (6th Cir. 2022).
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We acknowledge that, unlike Pinkerton liability, which requires that an offense be a
“reasonably foreseeable ‘consequence[] of the unlawful agreement,’” United States v. Hamm,
952 F.3d 728, 744 (6th Cir. 2020) (quoting Pinkerton v. United States, 328 U.S. 640, 648 (1946)),
aiding-and-abetting liability requires that a defendant intend to facilitate the offense, Rosemond
v. United States, 134 S. Ct. 1240, 1248 (2014). Nevertheless, under Richardson’s logic, the fact
that Edmond was not convicted of carjacking as a principal does not suggest that his carjacking
offenses are not “crimes of violence” under a categorical application of § 924(c)’s elements clause.
Another case relied upon by Edmond is distinguishable. In Ledbetter, two defendants were
convicted of murder by firearm during a crime of violence under §§ 924(c) and (j)(1). 929 F.3d
at 360. The purported “crime of violence” was conspiracy to commit Hobbs Act robbery. Id. at
360–61. The parties agreed that conspiracy to commit Hobbs Act robbery could constitute a
“crime of violence” only under § 924(c)’s residual clause. Id. at 361. We held that “[b]ecause the
Government relie[d] only on that now-invalidated clause to support [the defendants’] convictions
under § 924(c), those convictions must be set aside.” Id. Unlike Edmond’s § 924(c) convictions,
the § 924(c) convictions in Ledbetter were predicated on a conspiracy offense, not substantive
“crime of violence” offenses.8
In sum, because Edmond’s § 924(c) convictions were properly predicated on his
substantive carjacking offenses, rather than his conspiracy offense, relief is unwarranted.
B.
In support of its motion to vacate the certificate of appealability as improvidently granted,
the government argues that Edmond’s claim was not “substantial” or “constitutional” in nature.
8
Other appellate cases cited by Edmond are also distinguishable. In those cases, the defendants’ vacated
§ 924(c) convictions were predicated on conspiracy offenses, not substantive offenses. See United States v. Barrett,
937 F.3d 126, 129 (2d Cir. 2019); United States v. Simms, 914 F.3d 229, 232 (4th Cir. 2019).
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“Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken
to the court of appeals from . . . the final order in a proceeding under [28 U.S.C. § 2255].” 28
U.S.C. § 2253(c)(1)(B). “A certificate of appealability may issue . . . only if the applicant has
made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). Because the
district court did not err in denying Edmond’s motion, we need not address whether the district
court improvidently granted the certificate of appealability.9
III.
For the foregoing reasons, we AFFIRM the district court’s judgment, and DENY AS
MOOT the government’s motion to vacate the certificate of appealability as improvidently
granted.
9
We note, however, that our conclusion required careful analysis of the issues, and that Woods was decided
after the certificate of appealability was issued.
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