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United States v. Reece

United States Court of Appeals, Fifth Circuit

September 9, 2019

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
ANTONYO REECE, also known as Seven, Defendant-Appellant.

          Appeals from the United States District Court for the Northern District of Texas

          Before SMITH, DENNIS, and OWEN, Circuit Judges.

          JERRY E. SMITH, CIRCUIT JUDGE.

         Antonyo Reece stands convicted of four counts of using and carrying a firearm during and in relation to a crime of violence ("COV"), in violation of 18 U.S.C. § 924(c). For three of those four counts, the underlying COV was conspiracy to commit bank robbery. After his convictions were affirmed on direct appeal, Reece filed a federal habeas corpus petition seeking vacatur of his three conspiracy-predicated § 924(c) convictions on the ground that Johnson v. United States, 135 S.Ct. 2551 (2015), and Sessions v. Dimaya, 138 S.Ct. 1204 (2018), rendered § 924(c)(3)(B) unconstitutionally vague. The district court denied his petition, and Reece appealed. While his appeal was pending, the Supreme Court held § 924(c)(3)(B) unconstitutional. See United States v. Davis, 139 S.Ct. 2319 (2019). We therefore vacate and remand for resentencing.

         I.

         Reece, a member of the "Scarecrow Bandits," was charged with twelve crimes connected to a series of bank robberies. Specifically, Reece was charged with three counts of conspiracy to commit bank robbery, two counts of attempted bank robbery, one count of bank robbery, and six counts-one pertaining to each of the six aforementioned charges-of using and carrying a firearm during and in relation to a COV.

         Section 924(c) subjects to criminal liability "any person who, during and in relation to any [COV] . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm." Section 924(c) offenses do not stand alone-they require a predicate COV. The statute contains two clauses defining COV. The first, the so-called "elements clause," defines a COV as 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 second, the so-called "residual clause," defines a COV 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." Id. § 924(c)(3)(B).

         Reece was convicted on all charges and sentenced to 1, 680 months' imprisonment. He appealed, and his convictions for the attempted robberies and the related firearms charges were reversed. On remand, he was sentenced to 1, 080 months, of which 960 related to the remaining four § 924(c) charges- 60 months for the first count and 300 months for each additional count.[1] Reece again appealed, and his sentence was affirmed. He did not challenge § 924(c)(3)(B)'s constitutionality in either of his direct appeals.

         Reece filed a timely motion under 28 U.S.C. § 2255, claiming, inter alia, that his § 924(c) convictions were unconstitutional because bank robbery and conspiracy to commit bank robbery no longer constituted COVs after Johnson and Dimaya.[2] The magistrate judge recommended that Reece's claims for relief from his § 924(c) convictions be denied because both federal bank robbery and conspiracy to commit bank robbery constituted § 924(c) COVs under United States v. Sealed Appellant 1, 591 F.3d 812 (5th Cir. 2009). The district court accepted the magistrate judge's report and denied the § 2255 motion. The court also denied a certificate of appealability ("COA").

         Reece appealed the latter denial, and this court issued a COA limited to three questions: (1) whether Dimaya rendered § 924(c)(3)(B) unconstitutionally vague, (2) whether Dimaya applied retroactively to § 924(c) cases on collateral review, and (3) whether, in the wake of Dimaya, a conviction for conspiracy to commit a COV itself qualifies as a COV.

         II.

         "When considering challenges to a district court's decisions under 28 U.S.C. § 2255, this court reviews questions of law de novo." United States v. Taylor, 873 F.3d 476, 479 (5th Cir. 2017). Each of the three certified issues is a question of law.

         A.

         A habeas applicant may file a § 2255 motion where a constitutional "right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C. § 2255(f)(3). Therefore, before we consider the merits of Reece's petition, we address (1) whether Davis announced a new rule of constitutional ...


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