             Case: 18-11565   Date Filed: 07/06/2020   Page: 1 of 5



                                                          [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 18-11565
                          Non-Argument Calendar
                        ________________________

        D.C. Docket Nos. 0:16-cv-61493-WPD; 0:13-cr-60267-WPD-1



JEAN CAZY,

                                                           Petitioner-Appellant,

                                    versus

UNITED STATES OF AMERICA,

                                                          Respondent-Appellee.

                        ________________________

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

                                (July 6, 2020)

Before WILSON, MARTIN, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Jean Cazy, a federal prisoner, appeals the district court’s denial of his 28

U.S.C. § 2255 motion to vacate his conviction under 18 U.S.C. § 924(c)(1)(A) and

his corresponding sentence. He argues that his conviction is now invalid in light of

the Supreme Court’s ruling in United States v. Davis, 588 U.S. ___, 139 S. Ct.

2319 (2019). Although the government opposed Cazy’s motion in the district

court, it now concedes that Cazy’s § 924(c)(1)(A) conviction must be vacated.

After careful consideration, we reverse the district court’s denial of Cazy’s § 2255

motion and remand for resentencing.

                                          I.

      In 2014, Cazy was convicted of conspiracy to commit Hobbs Act robbery, in

violation of 18 U.S.C. § 1951(a) (Count 1); conspiracy to possess with intent to

distribute 5 kilograms or more of cocaine, in violation of 21 U.S.C. § 846 (Count

2); attempt to possess more than 500 grams, but less than 5 kilograms of cocaine,

in violation of 21 U.S.C. § 846 (Count 3); conspiracy to use, carry, or possess a

firearm during the commission of a crime of violence, in violation of 18 U.S.C.

§ 924(o) (Count 4); using, carrying, and possessing a firearm in furtherance of the

crime of violence set forth in Count 1, in violation of 18 U.S.C. § 924(c)(1)(A)

(Count 5); using, carrying, and possessing a firearm in furtherance of the drug-

trafficking offenses set forth in Counts 2 and 3, in violation of § 924(c)(1)(A)




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(Count 6). He was sentenced to a total term of 248-months imprisonment, which

was later reduced to 211-months imprisonment.

      In 2016, Cazy filed a motion under 28 U.S.C. § 2255, arguing, among other

things, that the Supreme Court’s decision in Johnson v. United States, 576 U.S.

___, 135 S. Ct. 2551 (2015), invalidated his § 924(c) conviction in Count 5. The

district court denied Cazy’s motion as to Count 5, holding that Cazy could not

benefit from Johnson because of the concurrent sentence doctrine. Cazy appealed,

and a panel of this Court vacated and remanded, holding that the district court

erred in applying the concurrent sentence doctrine. Cazy v. United States, 717 F.

App’x 954, 956 (2017) (per curiam) (unpublished). On remand, the district court

denied Cazy’s claim based on our decision in Ovalles v. United States, 861 F.3d

1257 (11th Cir. 2017), which held that Johnson did not invalidate the residual

clause in 18 U.S.C. § 924(c). Id. at 1265.

      Cazy appealed, and while his appeal was pending, the Supreme Court issued

its decision in Davis, which extended its holding in Johnson to § 924(c)’s residual

clause. See 139 S. Ct. at 2326, 2336. We thereafter granted a certificate of

appealability (“COA”) on the issue of whether Cazy’s “18 U.S.C. § 924(c)(1)(A)

conviction for the crime of using, carrying, or possessing a firearm in furtherance

of a companion offense of conspiracy to commit Hobbs Act robbery is

unconstitutional in light of [Davis].” On appeal, Cazy says his § 924(c) conviction


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in Count 5 is unconstitutional because it is premised on Hobbs Act conspiracy,

which no longer qualifies as a crime of violence.1 The government concedes that

Cazy’s conviction must be vacated in light of Davis and this Court’s subsequent

precedent.

                                               II.

       In reviewing a district court’s denial of a § 2255 motion, we review the

court’s legal conclusions de novo and its factual findings for clear error. Brown v.

United States, 942 F.3d 1069, 1072 (11th Cir. 2019) (per curiam).

                                              III.

       Under § 924(c), a person who uses a firearm during and in relation to a

crime of violence is subject to a mandatory consecutive prison sentence. 18 U.S.C.

§ 924(c)(1). A “crime of violence” is defined as an offense that is a felony and:

“(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.” Id. § 924(c)(3). We commonly

refer to § 924(c)(3)(A) as the “elements clause” and to § 924(c)(3)(B) as the




1
 Cazy has filed a supplemental brief arguing that his § 924(c) conviction in Count 6 is no longer
valid. Because the scope of our review is limited to the issue specified in the COA—whether
Cazy’s § 924(c) conviction in Count 5 is invalid after Davis—we do not consider his arguments
as to Count 6. See McKay v. United States, 657 F.3d 1190, 1195 (11th Cir. 2011).
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“residual clause.” In Davis, the Supreme Court struck down

§ 924(c)(3)(B)’s residual clause as unconstitutionally vague. 139 S. Ct. at 2323–

24, 2336. This Court has since held that Davis announced a new rule of

constitutional law that applies retroactively to cases on collateral review. See In re

Hammoud, 931 F.3d 1032, 1037–39 (11th Cir. 2019) (per curiam). This Court has

also held that conspiracy to commit Hobbs Act robbery is not categorically a crime

of violence under § 924(c)’s elements clause. Brown, 942 F.3d at 1075–76.

       Cazy’s conviction for conspiracy to commit Hobbs Act robbery does not

qualify as a crime of violence under § 924(c)’s now-defunct residual clause in light

of Davis, nor does it qualify under § 924(c)’s elements clause in light of Brown.

Because Cazy’s § 924(c) conviction in Count 5 was predicated solely on

conspiracy to commit Hobbs Act robbery, his conviction is invalid and must be

vacated. We therefore reverse the district court’s denial of Cazy’s § 2255 motion

and remand for resentencing.2

       REVERSED AND REMANDED.




2
 The government invites us to “remand[] with limited instructions to vacate only Count 5’s
§ 924(c) sentence, but not permit a full resentencing.” Br. of Appellee at 8 n.4. That is because,
as the government points out, Cazy’s 60-month sentence for his Count 5 conviction was imposed
concurrently with a separate 60-month sentence for his § 924(c) conviction in Count 6, which is
unaffected by this opinion. We decline to issue any such instruction, and instead allow the
district court to decide in the first instance the government’s request for limited resentencing.

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