Full Opinion (html_with_citations)

               Case: 17-13993    Date Filed: 11/12/2019   Page: 1 of 15


                                                                          [PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 17-13993
                              Non-Argument Calendar
                            ________________________

                        D.C. Docket Nos. 0:16-cv-61156-JIC,
                               0:14-cr-60174-JIC-1


MICHAEL BROWN,

                                                   Petitioner - Appellant,

versus

UNITED STATES OF AMERICA,

                                                   Respondent - Appellee.

                            ________________________

                     Appeal from the United States District Court
                         for the Southern District of Florida
                           ________________________

                                (November 12, 2019)

Before MARTIN, ROSENBAUM, and JILL PRYOR, Circuit Judges.

PER CURIAM:

         Michael Brown 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 the
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corresponding sentence. The government opposed Brown’s motion in the district

court.     The government also objected to the magistrate judge’s Report and

Recommendation recommending that Brown’s motion be granted. Now, however,

because of intervening events, the government moves jointly with Brown for

summary reversal of the district court’s order. For the reasons below, we grant that

motion and remand for resentencing.

                                         I.

A.       Brown’s Underlying Conviction

         In July 2014, a federal grand jury indicted Brown for (1) conspiracy to

commit Hobbs Act robbery, in violation of
18 U.S.C. § 1951
(a) (Count 1); (2)

conspiracy to possess with intent to distribute five kilograms or more of cocaine, in

violation of
21 U.S.C. § 841
(b)(1)(A) (Count 2); (3) attempted possession with

intent to distribute five kilograms or more of cocaine, in violation of
21 U.S.C. §§ 841
(a)(1), 841(b)(1)(A) (Count 3); (4) conspiracy to use a firearm during and in

furtherance of a crime of violence and drug-trafficking crime, in violation of
18 U.S.C. § 924
(o) (Count 4); and (5) carrying and possessing “a firearm during and

in relation to a crime of violence and a drug trafficking crime,” in violation of
18 U.S.C. §§ 2
, 924(c)(1)(A) (Count 5). The indictment specifies Counts 1 through 3

as predicate offenses for Count 5.




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      Therefore, as indicted, Count 5, brought under § 924(c)(1)(A), invokes
18 U.S.C. § 924
(c)(2), defining “drug trafficking crime,” and § 924(c)(3), defining

“crime of violence.” Section 924(c)(3), in turn, which lies at the heart of this

appeal, defines “crime of violence” as either an offense that has as an element, at a

minimum, the attempted or threatened use of physical force, or an offense that by

its nature involves a substantial risk that physical force will be used.
18 U.S.C. § 924
(c)(3). We commonly refer to these clauses as the “elements clause” and the

“residual clause,” respectively. See, e.g., In re Hammoud,
931 F.3d 1032, 1040

(11th Cir. 2019).

      Returning to Brown’s case, after he was indicted, Brown struck a deal with

the government. Under its terms, Brown “agree[d] to plead guilty to Counts 1 and

5 of the indictment.” As to Count 5 specifically, the parties’ plea agreement states

that “Count 5 charges [that] the defendant did . . . knowingly use and carry a

firearm . . . during and in relation to a crime of violence, that is, a violation of” §

1951(a), “as set forth in Count 1[.]” Gone from this version of the § 924(c) charge

to which Brown actually agreed to plead guilty is any mention of the “drug[-

]trafficking[-]crime” language from the indictment. And further, in exchange for

Brown’s agreement to plead guilty to the plea agreement’s reformulated version of




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Count 5, the government agreed to dismiss Counts 2 and 3, the substantive drug-

trafficking-related charges, and Count 4.1

       Consistent with the terms of the plea agreement, during the plea colloquy,

the district court asked Brown whether he understood that Count 5 charged him

with using “a firearm during the commission of a crime of violence.” Notably, just

like the plea agreement, the court did not mention in its statement of the charge to

which Brown was agreeing to plead guilty Brown’s alleged use of a firearm during

the commission of a drug-trafficking crime. Brown stated that he understood the

charge to which he was pleading guilty. The government then recited the elements

of Count 5, stating that for Brown to be found guilty, he must have (1) “committed

the crime of violence charged in Count 1” and (2) “knowingly used, carried and

possessed” a firearm “in furtherance of the [C]ount 1 crime of violence.”

(emphasis added). Brown agreed the government correctly stated the elements,

and he pled guilty. The district court accepted Brown’s plea and adjudged him

guilty of conspiracy to commit Hobbs Act robbery and “of Count 5, use of a

firearm during a commission of a crime of violence.”




       1
         The factual proffer submitted to the trial court contemporaneously described Brown’s
plan to pull off a “drug rip” for cocaine, which included the use of a Glock to commit a home-
invasion robbery. Fortunately, that plan turned out to be a non-starter, since Brown’s main
contact was a confidential informant who kept law enforcement apprised the entire time.
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      The court later sentenced Brown to a total of 90 months’ imprisonment.

That sentence consisted of 30 months’ imprisonment for Count 1, and a

consecutive 60 months’ imprisonment for Count 5.

      The parties agree that Brown has completed the 30-month sentence imposed

for Count 1. Nevertheless, Brown remains in prison serving his 60-month sentence

for Count 5. Therefore, if Brown and the government are correct in their view that

Brown’s § 924(c) conviction can no longer stand, Brown might be eligible for

immediate release.

B.    Brown’s § 2255 Motion, Davis, and This Appeal

      On May 31, 2016, Brown filed a pro se
28 U.S.C. § 2255
 motion to vacate

his conviction and sentence, claiming that conspiracy to commit Hobbs Act

robbery—the crime that underlaid his Count 5 § 924(c) conviction—failed to

qualify as a crime of violence under § 924(c)(3), in light of Johnson v. United

States,
135 S. Ct. 2551
 (2015). In Johnson, the Court struck down the residual

clause of the Armed Career Criminal Act’s (“ACCA”) definition of “violent

felony” as unconstitutionally vague.
135 S. Ct. at 2556-58, 2563
. Since the

ACCA’s residual clause and § 924(c)(3)’s residual clause are very similar,

Brown’s motion argued, § 924(c)(3)’s residual clause, like the ACCA’s residual

clause, is likewise void for vagueness.




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       A magistrate judge recommended granting Brown’s motion. But based on

our then-recently decided Ovalles v. United States,
861 F.3d 1257
 (11th Cir.

2017), 2 the district judge denied the motion. In short, Ovalles held that Johnson

did not apply to or invalidate § 924(c)(3)’s residual clause. See
861 F.3d at 1263
-

67. So the district court rejected Brown’s motion because Johnson’s ruling did not

extend to § 924(c)(3)’s residual clause, and it concluded that conspiracy is a crime

of violence under the residual clause when the conspired objective is a violent

crime, such as Hobbs Act robbery. The district court also denied Brown’s motion

for a certificate of appealability.

       Brown appealed and moved this Court for a certificate of appealability.

       Meanwhile, the Supreme Court issued Davis v. United States,
139 S. Ct. 2319
 (2019). Davis held that § 924(c)(3)’s residual clause defining “crime of

violence” was too vague to stand. Davis,
139 S. Ct. at 2324-27, 2336
.

       In the wake of Davis, we granted a certificate of appealability on the

following question:

              Whether Mr. Brown’s conviction for using a firearm
              during a crime of violence in violation of
18 U.S.C. § 2
         We subsequently vacated Ovalles, reheard it en banc, and partially reinstated it. See
Ovalles v. United States,
889 F.3d 1259
 (11th Cir. 2018), on reh'g en banc,
905 F.3d 1231
 (11th
Cir. 2018), and opinion reinstated in part,
905 F.3d 1300
 (11th Cir. 2018). In United States v.
Davis,
139 S. Ct. 2319
 (2019), however, the Supreme Court then abrogated Ovalles, as we have
explained in this opinion.

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               924(c) remains valid in light of Davis v. United States,
588 U.S. __
,
139 S. Ct. 2319
 (2019). 3

       Then, on October 4, 2019, the parties filed a joint motion seeking summary

reversal of the district court’s order and remand for resentencing. We now grant

that motion because we conclude that Brown’s conviction on the 924(c) count to

which he actually pled guilty cannot stand after Davis.

                                               II.

       When reviewing a denial of a motion to vacate under § 2255, we review

legal conclusions de novo and factual findings for clear error. Steiner v. United

States,
940 F.3d 1282
 (11th Cir. 2019).

                                               III.

       Resolution of Brown’s claim turns on two issues. First, what crime did

Brown plead guilty to in Count 5? And second, does that crime survive Davis’s

striking down of § 924(c)(3)’s residual clause?

A.     Brown pled guilty to using or possessing a firearm in relation to and in
       furtherance of conspiracy to commit Hobbs Act robbery
       As to the first question, the superficial answer is easy: Brown pled guilty to

violating
18 U.S.C. § 924
(c)(1)(A). But that hardly ends the inquiry. As relevant

here, that section criminalizes the use or possession of a firearm in relation to and


       3
          In conjunction with the district court’s denial of Brown’s § 2255 motion, the issuance of
the certificate of appealability give us jurisdiction over this matter. See
28 U.S.C. §§ 1291
,
2253; Fed. R. App. P. 22(b).

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in furtherance of “any [1] crime of violence or [2] drug trafficking crime[.]”
18 U.S.C. § 924
(c)(1)(A) (numbering and emphasis added).             And in fact, the

government indicted Brown under § 924(c)(1)(A) (Count 5) for his use of a

“firearm in furtherance of a crime of violence and a drug trafficking crime[.]”

(emphasis added).     Indeed, in further support of the § 924(c) charge in the

indictment, the indictment specifies the predicate crimes for Count 5 as both the

drug-offense counts (Counts 2 and 3) and the conspiracy-to-commit-Hobbs-Act-

robbery count (Count 1) appearing earlier in the indictment.

      Nevertheless, Brown did not plead guilty to Count 5 as charged in the

indictment. Nor did the district court adjudge Brown guilty of Count 5 as charged

in the indictment. Rather, as the plea agreement memorializes, Brown agreed to

plead guilty to Count 1 and to Count 5—but as predicated solely upon the “crime

of violence” set forth in Count 1. In particular, the plea agreement states that

Brown agreed to plead guilty to knowingly using and carrying a firearm “in

relation to a crime of violence, that is a violation of Title
18, United States Code, Section 1951
(a), as set forth in Count 1[.]” (emphasis added). Notably absent

from the plea agreement is any mention of “drug trafficking crimes.”

      That was no mistake. The government was free to seek a conviction of

Brown on any charge it desired, provided it could support that charge beyond a

reasonable doubt. And it is clear from the events that occurred on this record, that


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Brown agreed to plead guilty to, and the government agreed to seek conviction by

plea on, the § 924(c) charge as it related to only what the government then believed

to be the “crime of violence” specified in Count 1—conspiracy to commit Hobbs

Act robbery.

       Not only does the plea agreement’s language express this agreement, but

during the plea colloquy, the trial court confirmed with Brown that he was

pleading guilty to “use of a firearm during the commission of a crime of

violence[.]” The government’s subsequent recitation of the elements of Count 5

also illustrates the parties’ and the trial court’s understanding of which charge

Brown actually pled guilty to: “[T]he defendant can be found guilty only if . . .

[t]he defendant committed the crime of violence charged in Count 1 of the

indictment” and “knowingly used, carried and possessed [ ] a firearm . . . in

furtherance of the Count 1 crime of violence.” Brown pled guilty to that crime,

and the trial court “adjudged [Brown] guilty of Count 5, use of a firearm during a

commission of a crime of violence.” Nowhere does the plea colloquy suggest that

Brown actually pled guilty to or the court actually adjudged him guilty of a use or

possession of a firearm in furtherance of a drug-trafficking offense, despite the

language of the indictment. 4


       4
         The court did incorporate by reference the stipulated factual proffer, which described
Brown’s planned “drug rip” for cocaine. But regardless of the content of that recitation, it could
not render Brown convicted of a crime to which he did not actually plead guilty.
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      Those facts put this case on different footing than In re Navarro, where we

rejected the defendant’s (Navarro) successive § 2255 challenge, brought under

Davis this time, to his § 924(c) conviction.
931 F.3d 1298
 (2019) (“Navarro”).

True, this case and Navarro have substantial similarities.        In both cases, the

government charged the defendants with multiple counts, including conspiracy to

commit Hobbs Act robbery, two drug-trafficking crimes, and a § 924(c)(1)(A)

offense predicated on both a crime of violence and drug-trafficking crimes. Id. at

1299. The factual proffer in Navarro included numerous details about the planned

robbery and implicated Navarro in the drug-trafficking-related crimes the

indictment charged him with. Navarro,
931 F.3d at 1300
. So too here. And as in

Brown’s case, Navarro pled guilty to one count of conspiracy to commit Hobbs

Act robbery and one count of violating § 924(c)(1)(A). Navarro, 931 F.3d at

1299-1300. Critically, though, the cases diverge at that final step.

      Unlike here, the plea agreement in Navarro “clarified that the § 924(c)

charge was predicated on both a crime of violence—conspiracy to commit Hobbs

Act robbery—and drug-trafficking crimes.” Navarro,
931 F.3d at 1299, 1302

(emphasis added); see also
id. at 1300
 (defendant pled guilty to “knowingly using

and carrying a firearm during and in relation to a crime of violence and a drug

trafficking crime . . . in furtherance of such crimes.” (emphasis in original)). For

this reason, we found that Navarro’s § 924(c) conviction (as pled to) “was


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predicated both on conspiracy to commit Hobbs Act robbery and drug-trafficking

crimes.” Id. at 1302. As a result, Davis did not provide Navarro an avenue of

relief because, even assuming conspiracy to commit Hobbs Act robbery was not a

crime of violence, Navarro’s drug-trafficking-related conduct independently

supported his § 924(c)(1)(A) conviction. Id. at 1302-03. That was, after all,

exactly what Navarro had bargained for in the plea agreement and what he had

pled guilty to.

       Here, in contrast, the parties repeatedly specified that Brown was pleading

guilty to § 924(c)(1)(A) as predicated solely upon a “crime of violence”—and

specifically on the crime of violence that was charged in Count 1 of the

indictment—conspiracy to commit Hobbs Act robbery. It was that crime—and

only that § 924(c) crime—that the trial court adjudged Brown guilty of.5

       In short, though the government charged Brown with knowingly possessing

a firearm in furtherance of (1) conspiracy to commit Hobbs Act robbery—a

purported crime of violence—and (2) certain drug-trafficking-related conduct,

Brown pled guilty to a § 924(c)(1)(A) offense predicated only on conspiracy to


       5
          It makes no difference that after the court had already accepted Brown’s plea of guilty,
at sentencing, the trial court mentioned both alternative elements of § 924(c)(1)(A) when
referring to Brown’s conviction. At that point, the trial court had no discretion to unilaterally
change the crime that Brown had pled guilty to. United States v. Melton,
861 F.3d 1320, 1329
(11th Cir. 2017) (“Courts are not authorized to ink in revisions to” plea agreements); United
States v. Howle,
166 F.3d 1166
, 1168–69 (11th Cir. 1999) (“Modification of the terms of a plea
agreement is . . . beyond the power of the district court. Such a modification would
impermissibly alter the bargain at the heart of the agreement[.]” (internal citation omitted)).
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commit Hobbs Act robbery. For this reason, unlike in Navarro, if conspiracy to

commit Hobbs Act robbery does not constitute a “crime of violence,” as defined by

§ 924(c)(3), Brown’s conviction must be vacated.

B.    Conspiracy to commit Hobbs Act robbery does not satisfy § 924(c)’s
      definitions of “crime of violence”

      We therefore consider whether conspiracy to commit Hobbs Act robbery

qualifies as a “crime of violence” under § 924(c). Section 924(c)(3) defines a

“crime of violence” 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.
18 U.S.C. § 924
(c)(3). To briefly review, we commonly refer to § 924(c)(3)(A) as

the elements clause and § 924(c)(3)(B) as the residual clause. Davis, as we have

mentioned, struck down the residual clause as unconstitutionally vague. Davis,
139 S. Ct. at 2336
. For that reason, the survival of Brown’s § 924(c) conviction

depends entirely on whether conspiracy to commit Hobbs Act robbery qualifies as

a crime of violence under the elements clause.

      We apply the categorical approach when determining whether an offense

constitutes a “crime of violence” under the elements clause. United States v. St.

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Hubert,
909 F.3d 335, 348-49
 (11th Cir. 2018). Under that approach, we look to

whether the statutory elements of the predicate offense necessarily require, at a

minimum, the threatened or attempted use of force.
Id. at 349
. That is, the

particular facts of the case are irrelevant because the inquiry begins and ends with

the elements of the crime.
Id. at 348
.

      It’s worth emphasizing that Brown pled guilty to conspiracy to commit

Hobbs Act robbery, not substantive Hobbs Act robbery, a crime we have

previously held constitutes a crime of violence under the elements clause. See In

re Fleur,
824 F. 3d 1337, 1340-41
 (11th Cir. 2016). Those two offenses are

meaningfully distinct.    The elements of conspiracy center on a defendant’s

agreement to commit a crime and do not require the government to prove the

elements of the underlying substantive crime itself. For this reason, and as the

elements clause itself demands, our analysis looks to only the elements of

conspiracy to commit Hobbs Act robbery: (1) two or more people, including the

defendant, agreed to commit Hobbs Act robbery; (2) the defendant knew of the

conspiratorial goal; and (3) the defendant voluntarily participated in furthering that

goal. See United States v. Ransfer,
749 F.3d 914, 930
 (11th Cir. 2014).

      Applying the categorical approach to these elements requires us to reverse

the district court’s denial of Brown’s § 2255 petition. Neither an agreement to

commit a crime nor a defendant’s knowledge of the conspiratorial goal necessitates


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the existence of a threat or attempt to use force. The same goes for the final

element—a defendant’s voluntary participation that furthers the goal of committing

Hobbs Act robbery—because a defendant’s voluntary participation may manifest

itself in any one of countless non-violent ways. So like our sister Circuits, we

conclude that conspiracy to commit Hobbs Act robbery does not qualify as a

“crime of violence,” as defined by § 924(c)(3)(A). See United States v. Simms,
914 F.3d 229, 233-34
 (4th Cir. 2019) (en banc), cert. denied, No. 18-1338,
2019 WL 4923463
 (U.S. Oct. 7, 2019); United States v. Lewis,
907 F.3d 891, 895
 (5th

Cir. 2018), cert. denied,
139 S. Ct. 2776
 (2019); United States v. Barrett,
937 F.3d 126
, 127-28 (2d Cir. 2019).

       Because Count 1 for conspiracy to commit Hobbs Act robbery is not a

“crime of violence” and because Count 5 was predicated solely upon that count,

Brown’s conviction for Count 5 is invalid and must be vacated.                         See In re

Hammoud,
931 F.3d at 1037-39
 (holding that Davis stated a new substantive rule

of constitutional law that applies retroactively to criminal cases).

                                               IV.

       We therefore reverse the district court’s denial of Brown’s § 2255 claim6

and remand for resentencing.


       6
          Summary reversal is warranted where, among other circumstances, time is of the
essence, such as where rights delayed are rights denied, or where the result is clear as a matter of
law so that there can be no substantial question as to the outcome. Groendyke Transp., Inc. v.
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       REVERSED AND REMANDED.




Davis,
406 F.2d 1158
, 1162 (5th Cir. 1969); Bonner v. City of Prichard,
661 F.2d 1206, 1209
(11th Cir. 1981) (en banc) (adopting as binding precedent all Fifth Circuit decisions issued
before October 1, 1981). The law, as we have discussed and as both parties apparently
recognize, clearly resolves the question at issue in this case. And Brown’s continued
imprisonment for the commission of a crime that is no longer valid weighs heavily in favor of
treating this matter with urgency.

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