                                     PUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 15-4301


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

DONALD EUGENE WALKER,

                    Defendant - Appellant.


Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. William L. Osteen, Jr., District Judge. (1:14-cr-00271-WO-1)


Argued: September 23, 2016                                      Decided: August 9, 2019


Before NIEMEYER, MOTZ, and WYNN, Circuit Judges.


Vacated and remanded by published opinion. Judge Motz wrote the opinion, in which
Judge Niemeyer and Judge Wynn joined.


ARGUED: John Scott Coalter, COALTER LAW, P.L.L.C., Greensboro, North Carolina,
for Appellant. JoAnna Gibson McFadden, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Ripley Rand,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina, for Appellee.
DIANA GRIBBON MOTZ, Circuit Judge:

       Donald Eugene Walker pled guilty to kidnapping in violation of 18 U.S.C. § 1201(a)

and brandishing a firearm during and in relation to a crime of violence in violation of 18

U.S.C. § 924(c). The district court sentenced Walker to 324 months on the kidnapping

charge, followed by 84 months for brandishing a firearm “during and in relation to a crime

of violence.” On appeal, Walker principally challenges his § 924(c) conviction. 1 For the

reasons set forth within, we vacate Walker’s § 924(c) conviction and remand to the district

court with instructions to resentence him.



                                              I.

       Under 18 U.S.C. § 924(c), a person who uses or carries a firearm “during and in

relation to any crime of violence” or who “possesses a firearm” “in furtherance of any such

crime” may be separately convicted of both the underlying crime of violence and the use,

carrying, or possession of that firearm. Section 924(c)(3) defines “crime of violence” as

“an offense that is a felony” and


       1
         Walker also contends that the district court abused its discretion in denying his
motion to withdraw his guilty plea. A defendant has “no absolute right to withdraw a guilty
plea,” and the district court has discretion to determine whether there exists “a fair and just
reason for withdrawal.” United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000);
see Fed. R. Crim. P. 11(d)(2)(B). Because the “most important consideration in resolving
a motion to withdraw a guilty plea is an evaluation of the Rule 11 colloquy at which the
guilty plea was accepted,” a properly conducted Rule 11 plea colloquy raises “a strong
presumption that the plea is final and binding.” United States v. Bowman, 348 F.3d 408,
414 (4th Cir. 2003) (citation omitted). Here, the district court’s plea colloquy fully
complied with Rule 11. We therefore conclude that the district court did not abuse its
discretion in denying Walker’s motion.

                                              2
       (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).     Courts refer to § 924(c)(3)(A) as the “force clause” and to

§ 924(c)(3)(B) as the (now-invalid) “residual clause.”



                                             II.

       On appeal, Walker contends that his § 924(c)(3)(B) conviction is contrary to

Johnson v. United States, 135 S. Ct. 2551 (2015), which invalidated on vagueness grounds

a similar residual clause in 18 U.S.C. § 924(e)(2)(B). After briefing and oral argument

before us, the Supreme Court granted certiorari to resolve the question of whether the

residual clause in 18 U.S.C. § 16(b) is unconstitutionally vague. Lynch v. Dimaya, 137

S. Ct. 31 (2016). Because the language in § 16(b) is identical to the language in the residual

clause before us, 18 U.S.C. § 924(c)(3)(B), we placed this case in abeyance, awaiting

resolution of Dimaya. On April 17, 2018, the Court issued its decision in Sessions v.

Dimaya, 138 S. Ct. 1204 (2018), and invalidated § 16(b) on vagueness grounds.

       The Government contended, however, that the identical language in § 924(c)(3)(B)

required a different result and so we placed this case in abeyance again pending resolution

of that issue. In United States v. Simms, 914 F.3d 229 (4th Cir. 2019) (en banc), we held

§ 924(c)(3)(B) unconstitutionally vague. A few months later, the Supreme Court similarly

held § 924(c)(3)(B) unconstitutionally vague. United States v. Davis, 139 S. Ct. 2319

(2019).

                                              3
                                              III.

       With this background in mind, we now consider Walker’s challenge to his § 924(c)

conviction. Because Walker raises this claim for the first time on appeal, we review only

for plain error. To prevail, Walker must show (1) “an error” that (2) was “clear or obvious,”

(3) affects “substantial rights,” and (4) “seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.” United States v. Marcus, 560 U.S. 258, 262 (2010)

(alteration in Marcus) (quoting Puckett v. United States, 556 U.S. 129, 135 (2009))

(internal quotation marks omitted).

                                              A.

                                              1.

       We turn first to § 924(c)(3)(B), the residual clause. In determining whether the

district court committed a plain error in finding Walker guilty under that clause, we

consider only whether, “at the time of appellate consideration,” “the settled law of the

Supreme Court or this circuit establishes that an error has occurred.” United States v.

Carthorne, 726 F.3d 503, 516 (4th Cir. 2013) (internal quotation marks and citations

omitted); see also Henderson v. United States, 568 U.S. 266, 279 (2013) (holding “whether

a legal question was settled or unsettled at the time of trial, it is enough that an error be

plain at the time of appellate consideration” (internal quotation marks omitted)). Given

that this court in Simms and the Supreme Court in Davis have now expressly held that

§ 924(c)(3)(B) is unconstitutionally vague, we must conclude that the district court

committed plain error in finding that Walker violated that section.

                                               4
                                             2.

       Accordingly, we turn to the force clause, § 924(c)(3)(A). To determine whether an

offense is a crime of violence under § 924(c)’s force clause, we “look to whether the

statutory elements of the offense necessarily require the use, attempted use, or threatened

use of physical force.” Simms, 914 F.3d at 233. We use the categorical approach, looking

only at the elements of the crime and not at the particular facts in the case. Id. “When a

statute defines an offense in a way that allows for both violent and nonviolent means of

commission, that offense is not ‘categorically’ a crime of violence under the force clause.”

Id.

       Kidnapping in violation of 18 U.S.C. § 1201(a) has two requirements relevant to

determining whether it is a crime of violence under the force clause: (1) the defendant

“unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away” a

person, and (2) the defendant “holds” this person. As the Government concedes, the

requirement that a defendant unlawfully seize, confine, inveigle, kidnap, abduct, or carry

away a person can be accomplished without the use of force — through inveiglement.

Appellee Br. at 13–14; see United States v. Wills, 234 F.3d 174, 177 (4th Cir. 2000) (“By

its terms, § 1201(a) criminalizes kidnappings accomplished through physical, forcible

means and also by nonphysical, nonforcible means.”); Black’s Law Dictionary (10th ed.

2014) (defining “inveigle” as “[t]o lure or entice through deceit or insincerity”). 2 In fact,


       2
        Kidnapping in violation of § 1201(a) therefore differs from crimes that a defendant
may commit using “force and violence or by intimidation.” See, e.g., 18 U.S.C. § 2119.
That is so because we have defined “intimidation” as requiring “a threat of bodily harm
(Continued)
                                              5
subsequent to briefing and argument in this case, the Government has conceded elsewhere

that kidnapping does not qualify as a crime of violence under the force clause. See United

States v. Taylor, 848 F.3d 476, 491 (1st Cir. 2017) (noting “[t]he government admits that

kidnapping” under § 1201(a) “cannot” qualify as a crime of violence under the force

clause).

       Here, however, the Government argues that even though physical force or the threat

of physical force is unnecessary to accomplish the first element of the crime of kidnapping,

it is necessary to accomplish the second “holding” element. We disagree. In Chatwin v.

United States, 326 U.S. 455 (1946), the Supreme Court explained that “[t]he act of holding

a kidnapped person for a proscribed purpose necessarily implies an unlawful physical or

mental restraint for an appreciable period against the person’s will and with a willful intent

so to confine the victim.” Id. at 460 (emphasis added). The Court reversed the kidnapping

conviction in that case because there was “no proof that [the defendant] or any of the other

petitioners willfully intended through force, fear or deception to confine the girl against

her desires.” Id. (emphasis added).

       In United States v. Hughes, 716 F.2d 234 (4th Cir. 1983), we held that the seizure

and detention elements of Chatwin were met where the defendant induced the victim by

misrepresentation to enter his vehicle, because by “knowing that the victim’s belief as to



from the defendant’s acts.” United States v. Evans, 848 F.3d 242, 247 (4th Cir. 2017)
(emphasis added) (citation and internal quotation marks omitted) (holding carjacking in
violation of 18 U.S.C. § 2119 is a crime of violence under § 924(c)’s force clause); United
States v. McNeal, 818 F.3d 141 (4th Cir. 2016) (same, for armed bank robbery in violation
of 18 U.S.C. § 2113(a) and § 2113(d)).

                                              6
their purpose and destination is different from his actual illicit purpose, the kidnapper has

interfered with, and exercised control over, her actions.” Id. at 239. There was no evidence

in Hughes that the defendant used or threatened the victim with force or bodily harm.

Furthermore, we have repeatedly upheld jury instructions for § 1201(a) providing that “[t]o

hold means to detain, seize, or confine a person in some manner against that person’s will.”

See, e.g., United States v. Wills, 346 F.3d 476, 493 (4th Cir. 2003) (emphasis added).

       Accordingly, because both requirements of 18 U.S.C. § 1201(a) may be committed

without violence, kidnapping clearly does not categorically qualify as a crime of violence

under the force clause, § 924(c)(3)(A). 3 The district court thus also clearly erred in holding

Walker violated § 924(c)(3)(A). See Marcus, 560 U.S. at 262; Carthorne, 726 F.3d at 516.

                                              B.

       Having held that the district court erred in finding Walker guilty of violating

§ 924(c), and that the error was clear at the time of appellate review, we consider the

remaining two plain error factors. In doing so, we can only conclude that the error affected

Walker’s “substantial rights as well as the fairness, integrity, and public reputation of

judicial proceedings” because Walker “cannot be guilty of violating § 924(c), and yet he

received an additional [84 months’] imprisonment for this offense.” United States v.




       3
         The only other court of appeals to consider this issue has agreed. But because that
court also held the residual clause of § 924(c) unconstitutionally vague, the Supreme Court
vacated the judgment and remanded for further consideration following Dimaya. See
United States v. Jenkins, 849 F.3d 390, 393–94 (7th Cir.), cert. denied, 137 S. Ct. 2280
(2017), and cert. granted, judgment vacated, 138 S. Ct. 1980 (2018).

                                              7
Fuertes, 805 F.3d 485, 501 (4th Cir. 2015). Accordingly, we vacate Walker’s § 924(c)

conviction and remand for entry of judgment of acquittal on that count and resentencing.



                                           IV.

      For the foregoing reasons, Walker’s conviction under § 924(c) is vacated and the

case is remanded for further proceedings consistent with this opinion.

                                                           VACATED AND REMANDED




                                            8
