     Case: 16-10330   Document: 00514633164        Page: 1   Date Filed: 09/07/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
                                    No. 16-10330                  September 7, 2018
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk


             Plaintiff - Appellee

v.

MAURICE LAMONT DAVIS; ANDRE LEVON GLOVER,

             Defendants - Appellants


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

     ON REMAND FROM THE UNITED STATES SUPREME COURT

Before HIGGINBOTHAM, JONES, and HAYNES, Circuit Judges.
PER CURIAM:
      On January 31, 2017, we issued an opinion in this case denying Andre
Levon Glover’s challenge to his conviction and sentence and Maurice Lamont
Davis’s (Davis and Glover, collectively, “Defendants”) challenge to his
sentence, affirming the district court’s entry of judgment from the charges
under 18 U.S.C. § 1951 and 18 U.S.C. § 924(c). United States v. Davis, 677 F.
App’x 933, 935–36 (5th Cir. 2017) (per curiam). Defendants petitioned the
Supreme Court for certiorari. Following its decision in Sessions v. Dimaya, 584
U.S. ___, 138 S. Ct. 1204 (2018), the Court remanded this case to our court “for
further consideration” in light of Dimaya. Davis v. United States, 138 S. Ct.
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1979, 1979–80 (2018). We requested supplemental briefing from the parties
on the effect of the Court’s decision and now (1) continue to affirm Defendants’
conviction under Count Seven; (2) vacate Defendants’ conviction under Count
Two; and (3) leave the remainder of our prior opinion intact. 1
       The first question is whether Dimaya affects Defendants’ convictions on
Count Seven for illegally using or carrying a firearm in relation to a crime of
violence, that is, Hobbs Act robbery. See 18 U.S.C. § 924(c). The conviction
depends on whether Hobbs Act robbery is a “crime of violence” subsumed by
§ 924(c)(3)(a).     Defendants urge us to extend Dimaya to reconsider our
precedent on this question. In United States v. Buck, we held that “[i]t was not
error—plain or otherwise—”to classify Hobbs Act robbery as a crime of violence
under the § 924(c) elements clause, citing cases in the Second, Third, Eighth,
Ninth, and Eleventh Circuits. 847 F.3d 267, 274–75 (5th Cir.), cert. denied,
138 S. Ct. 149 (2017). Nonetheless, Defendants argue that Hobbs Act robbery
can be committed without the use, attempted use, or threatened use of physical
force, because “fear of injury” is included in the definition of robbery. See 18
U.S.C. § 1951(b)(1).
       We decline to extend Dimaya’s holding that far. Section 924(c) contains
both an elements clause and a residual clause; the elements clause defines an
offense as a crime of violence if it “has as an element the use, attempted use,
or threatened use of physical force against the person or property of another,”

       1   Specifically, Davis individually argues that his ACCA sentencing enhancement
based upon multiple burglary convictions under Texas Penal Code § 30.02 cannot stand in
light of United States v. Herrold, 883 F.3d 517 (5th Cir. 2018) (en banc), petitions for cert.
filed, (U.S. Apr. 18, 2018) (No. 17-1445), and (U.S. May 21, 2018) (No. 17-9127). He notes
that his case is still on direct appeal, and therefore, he is entitled to the benefit of Herrold.
See Griffith v. Kentucky, 479 U.S. 314, 322–23 (1987). However, addressing that issue would
exceed the scope of the Supreme Court remand, and therefore, we decline to do so at this
time. See Aladdin’s Castle, Inc. v. City of Mesquite, 713 F.2d 137, 138–39 (5th Cir. 1983). To
be clear, we thus are not addressing Herrold on remand nor are we directing the district court
to do so.


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whereas the residual clause defines an offense as a crime of violence if it, “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.” See
§ 924(c)(3).   Dimaya only addressed, and invalidated, a residual clause
mirroring the residual clause in § 924(c); it did not address the elements clause.
Whatever arguments may be made opposing Hobbs Act robbery’s inclusion
under the elements clause as a crime of violence, Dimaya has not affected
them, and therefore, they are foreclosed to us in light of Buck. Thus, we affirm
our prior judgment regarding Davis and Glover’s convictions for violations of
§ 924(c) as predicated on Hobbs Act robbery.
      Defendants’ firearms convictions for knowingly using, carrying, or
brandishing a firearm to aid and abet conspiracy to interfere with commerce
by robbery under Count Two present a less clear question. We have held that
conspiracy to commit an offense is merely an agreement to commit an offense.
United States v. Gore, 636 F.3d 728, 731 (5th Cir. 2011). Therefore, here, the
conspiracy offense does not necessarily require proof that a defendant used,
attempted to use, or threatened to use force. Accordingly, the Government
concedes that Defendants could only have been convicted as to Count Two
under the residual clause.
      The Government attempts to change its prior approach to these cases on
remand by abandoning its longstanding position that 18 U.S.C. § 924(c)(3)(B)
should be analyzed under the categorical approach. In light of Dimaya, the
Government argues we can, and should, adopt a new “case specific” method
when applying the residual clause; this method would compare § 924(c)’s
residual definition to the “defendant’s actual conduct” in the predicate offense.
Regardless of whether Dimaya would otherwise permit us to do so, we do not
find a suggestion by a minority of justices in that case sufficient to overrule our



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prior precedent. 2 See United States v. Williams, 343 F.3d 423, 431 (5th Cir.
2003) (“We use the so-called categorical approach when applying [§
924(c)(3)(B)] to the predicate offense statute. ‘The proper inquiry is whether a
particular defined offense, in the abstract, is a crime of violence.’” (quoting
United States v. Chapa–Garza, 243 F.3d 921, 924 (5th Cir. 2001))). Therefore,
we must address the serious constitutional questions apparent in the residual
clause of § 924(c)(3)(B) in light of Dimaya.
       The Supreme Court rested its decision in Dimaya on its concerns about
the language of the statute itself.            Although § 16(b) contained linguistic
differences to the Armed Career Criminal Act (“ACCA”) residual clause the
Court had previously invalidated in Johnson v. United States, 135 S. Ct. 2551
(2015), it noted that each statute contained “both an ordinary-case
requirement and an ill-defined risk threshold,” and this “‘devolv[ed] into
guesswork and intuition,’ invited arbitrary enforcement, and failed to provide
fair notice.”    Dimaya, 138 S. Ct. at 1223 (alteration in original) (quoting
Johnson, 135 S. Ct. at 2559). Because the language of the residual clause here
and that in § 16(b) are identical, this court lacks the authority to say that,
under the categorical approach, the outcome would not be the same. We hold
that § 924(c)’s residual clause is unconstitutionally vague.                       Therefore,




       2 Justice Gorsuch, in concurrence, along with Justice Thomas, joined by Justices
Kennedy and Alito, in dissent, suggested that an alternative approach to the categorical
approach may be preferable in analyzing residual clauses. Dimaya, 138 S. Ct. at 1233
(Gorsuch, J., concurring in part and concurring in the judgment); id. at 1252–53 (Thomas, J.,
dissenting). However, the holding in Dimaya addressed § 16(b) as interpreted via the
categorical approach, without deciding whether the statute could be interpreted under
alternative approaches. See id. at 1217–18 (plurality opinion) (interpreting the categorical
approach as the “best read[ing]” of the statutory text); id. at 1233 (Gorsuch, J., concurring in
part and concurring in the judgment) (noting that other interpretive approaches may be
possible, but that the parties conceded application of the categorical approach in this case).


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Defendants’ convictions and sentences under Count Two must be vacated. 3
We conclude this decision does not implicate the sentences on the other counts.
U.S. v. Clark, 816 F.3d 350, 360 (5th Cir. 2016).
      Accordingly, we AFFIRM the judgment of the district court except with
respect to the conviction and sentence as to Count Two; as to Count Two, we
VACATE the conviction and REMAND for entry of a revised judgment
consistent herewith.




      3  Davis received a 120-month sentence as to Count Two, to run consecutively with a
concurrent 188-month sentence as to Counts One, Five, and Six and a 300-month sentence
as to Count Seven, along with a concurrent 120-month sentence as to Count Eight, for an
aggregate sentence of 608 months. Glover also received a 120-month sentence as to Count
Two, to run consecutively with a concurrent seventy-eight-month sentence as to Counts One,
Three, Four, Five, and Six and a 300-month sentence as to Count Seven, for an aggregate
sentence of 498 months.


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PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring in part and
dissenting in part:

       I concur only in the vacating of the Count Two conviction. With respect,
the remedy afforded Davis is deeply flawed by two basic errors of law interlaced
in effect.
       First, in the majority’s suggestion that we are here barred from
considering issues beyond the scope of the Supreme Court’s remand order.
Supra at 2 n.1. After granting certiorari in this case, the Court vacated our
previous opinion and remanded for consideration in light of the Dimaya
decision. Davis v. United States, 138 S. Ct. 1979 (2018). In this circumstance
we have jurisdiction to consider issues not addressed in the Supreme Court’s
mandate on remand. Hill v. Black, 920 F.2d 249, 250 (5th Cir. 1990), modified
on other grounds on denial of reh'g, 932 F.2d 369 (5th Cir. 1991); see also Moore
v. Zant, 885 F.2d 1497, 1503 (11th Cir. 1989).
       Second, the majority errs in frustrating the district court’s duty to
construct proper sentences from a holistic examination of the intertwined acts
of criminality for which the defendants were convicted. The majority remedies
the error with respect to Davis and Glover’s convictions under § 924(c)’s
residual clause by reaching into their sentences and excising a period of time.
But    the   aggregate    sentences   here—combinations    of   concurrent   and
consecutive sentences for different counts—resulted from a sentencing
judgment by the district court. “‘A criminal sentence is a package of sanctions
that the district court utilizes to effectuate its sentencing intent.’” Pepper v.
United States, 562 U.S. 476, 507 (2011) (quoting United States v. Stinson, 97
F.3d 466, 469 (11th Cir. 1996) (per curiam)). It is for the district court—not
this court—to reach sentencing decisions in the first instance. “[A] district
court’s ‘original sentencing intent may be undermined by altering one portion



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of the calculus’”—here reductions by 120 months of the defendants’ 608-month
and 498-month sentences. Id. (quoting United States v. White, 406 F.3d 827,
832 (7th Cir. 2005)). The majority concludes that excision of the sentences
associated with Davis and Glover’s Count Two convictions does not implicate
their sentences relative to other counts, citing to our Clark decision. Supra at
5. But Clark was an appeal from a district court’s decision. Clark, 816 F.3d at
354. There, the district court had determined that, after excision of time
associated with a dismissed conviction, the petitioner’s remaining aggregate
sentence entailed an appropriate package without further adjustment. Id. at
360. If the instant case were an appeal from a district court’s resentencing of
Davis and Glover, I would find Clark controlling and reliance upon it sound.
Today’s decision, however, involves the Court of Appeals making that
determination. A district court declining to adjust the remaining parts of its
original sentencing package does not speak to an appellate invasion of the
district court’s sentencing prerogatives.
      The appropriate remedy is to vacate Davis and Glover’s entire sentences
and remand for resentencing. See United States v. Aguirre, 926 F.2d 409, 410
(5th Cir. 1991) (Rubin, Politz, Davis) (“The proper remedy . . . is to vacate the
entire sentence and remand for resentencing.”). Such a disposition is especially
appropriate where the district court in any event under current law may well
be faced with constructing a new sentencing package. This because, lurking in
the background of the majority’s disposition in this case is another issue: the
sentencing package here also included Davis’s ACCA sentence enhancement
predicated on convictions for Texas burglary. Were Davis resentenced, the
district court would consider current law, including United States v. Herrold.
883 F.3d 517 (5th Cir. 2018) (en banc), petitions for cert. filed, (U.S. Apr. 18,
2018) (No. 17-1445), and (U.S. May 21, 2018) (No. 17-9127); see Griffith v.



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Kentucky, 479 U.S. 314, 322–23 (1987). Management of the sentencing process
is best left to the court charged with the task and best situated to accommodate
it. Here it should have the opportunity to revisit the entirety of the sentencing
package including whether to defer resentencing pending the Supreme Court’s
disposition of petitions for certiorari in Herrold. The district court has been
denied that opportunity. District courts are not mere “gatekeepers,” and
sentences often—as here—present as packages effectuating the district court’s
sentencing intent, as Chief Justice Rehnquist would remind.




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