Appeals from the United States District Court for the
Northern District of Texas
SMITH, DENNIS, and OWEN, Circuit Judges.
E. SMITH, CIRCUIT JUDGE.
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.
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.
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).
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. Reece again appealed, and his sentence was
affirmed. He did not challenge § 924(c)(3)(B)'s
constitutionality in either of his direct appeals.
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. 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").
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.
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.
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 ...