           Case: 17-15192   Date Filed: 01/22/2020   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-15192
                        Non-Argument Calendar
                      ________________________

       D.C. Docket Nos. 0:16-cv-61354-DMM; 0:08-cr-60090-DMM-2



DEVON CHANCE,

                                                          Petitioner-Appellant,

                                 versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.

                      ________________________

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

                            (January 22, 2020)

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before WILLIAM PRYOR, GRANT, and ANDERSON, Circuit Judges.

PER CURIAM:
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      This case returns to us on remand from the Supreme Court for further

consideration in light of United States v. Davis, 139 S. Ct. 2319 (2019). We now

reverse in part the district court’s order denying Chance’s § 2255 motion, vacate

Chance’s conviction for conspiracy to possess a firearm during and in relation to

conspiracy to commit Hobbs Act robbery, and remand for resentencing.

                                         I.

      A federal jury found Chance guilty of six counts of Hobbs Act robbery, 18

U.S.C. § 1951(a); six counts of possession of a firearm during and in relation to a

crime of violence (predicated on the Hobbs Act robbery offenses), 18 U.S.C.

§ 924(c)(1); one count of conspiracy to commit Hobbs Act robbery, 18 U.S.C.

§ 1951(a); and one count of conspiracy to possess a firearm during and in relation

to a crime of violence (predicated on the conspiracy to commit Hobbs Act robbery

offense), 18 U.S.C. § 924(o). The district court sentenced Chance to a total of

1,794 months’ imprisonment, 60 months’ supervised release, and fines totaling

$1,400. Chance’s convictions and sentence were affirmed on direct appeal, United

States v. Lewis, 433 F. App’x 844 (11th Cir. 2011) (unpublished), and the district

court subsequently denied his first § 2255 motion.

      Following the Supreme Court’s decision in Johnson v. United States, 135 S.

Ct. 2551, 2557 (2015), holding that the definition of “violent felony” in

§ 924(e)(2)(B)(ii) of the Armed Career Criminal Act—commonly called the


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“residual clause”—was unconstitutionally vague, we granted Chance leave to file a

second § 2255 motion on the limited issue of whether his conviction for conspiracy

to possess a firearm during and in relation to a “crime of violence,” predicated on

conspiracy to commit Hobbs Act robbery, was affected by Johnson.

       Once given leave to do so, Chance filed a second § 2255 motion in the district

court, arguing (as relevant here) that conspiracy to commit Hobbs Act robbery could

no longer serve as a predicate crime of violence because Johnson had rendered

§ 924(c)’s residual-clause definition of that term invalid and the offense did not

otherwise meet the statutory definition of “crime of violence.” 1

       The district court denied Chance’s § 2255 motion but granted him a certificate

of appealability on the issue of whether Johnson affected § 924(c)’s residual clause,

and Chance appealed. Based on our en banc opinion in Ovalles v. United States,

905 F.3d 1231 (11th Cir. 2018)—in which we held that Johnson did not affect

§ 924(c)(3)(B)—we affirmed. In Davis, however, the Supreme Court applied its

reasoning from Johnson and held that the residual clause in § 924(c)(3)(B) was

unconstitutionally vague.         The Supreme Court granted Chance’s petition for




1
  Section 924(c)(3) defines a “crime of violence” as a felony offense that either “(A) has as an
element the use, attempted use, or threatened use of physical force against the person or property
of another” (the “elements clause”), 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” (the “residual clause”). 18 U.S.C. § 924(c)(3)(A)–(B).
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certiorari, vacated our opinion, and remanded for further consideration in light of

Davis.

                                          II.

      Having considered the effect of Davis on Chance’s claim, we conclude that

Chance’s § 924(o) conviction cannot stand. Section 924(o) makes it a crime to

conspire to use, carry, or possess a firearm during and in relation to or in

furtherance of a “crime of violence,” as that term is defined in § 924(c)(3). 18

U.S.C. § 924(o); see id. § 924(c)(1)(A). After Davis, only § 924(c)(3)’s elements-

clause definition of “crime of violence” remains intact. This means that Chance’s

§ 924(o) conviction is valid only if the predicate crime, conspiracy to commit

Hobbs Act robbery, “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). We recently held that it does not. See Brown v. United States, 942

F.3d 1069, 1075 (11th Cir. 2019).

      Because conspiracy to commit Hobbs Act robbery does not qualify as a

§ 924(c) “crime of violence” and Chance’s conviction for conspiracy to use and

carry a firearm during and in relation to a crime of violence (Count 2 of the

indictment) was predicated solely on conspiracy to commit Hobbs Act robbery, his

conviction on Count 2 is invalid. We therefore reverse the district court’s denial of

Chance’s § 2255 motion as to Count 2 only, vacate Chance’s conviction on Count


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2, and remand for resentencing in accordance with this opinion. We affirm the

district court’s denial of relief in all other respects.

       AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




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