              Case: 17-14249       Date Filed: 05/01/2020   Page: 1 of 3



                                                               [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                   No. 17-14249
                               Non-Argument Calendar
                             ________________________

                        D.C. Docket No. 1:16-cv-02226-ODE,
                             1:12-cr-00205-ODE-ECS-2


KIRK L. FLOYD,
a.k.a. Twin, a.k.a.
Kirk Lorin Floyd,

                                                                Petitioner-Appellant,

                                        versus

UNITED STATES OF AMERICA,

                                                               Respondent-Appellee.

                             ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                            ________________________

                                    (May 1, 2020)

Before ED CARNES, Chief Judge, GRANT, and LUCK, Circuit Judges.

PER CURIAM:
               Case: 17-14249     Date Filed: 05/01/2020   Page: 2 of 3



      Kirk Floyd is a federal prisoner serving a total 300-month sentence for

multiple convictions, including conspiracy to commit Hobbs Act robbery, in

violation of 18 U.S.C. § 1951(a), and brandishing a firearm in furtherance of a

crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(i) and (B)(i) and § 2.

Floyd’s § 924(c) conviction was predicated on conspiracy to commit Hobbs Act

robbery. He appeals the district court’s denial of his 28 U.S.C. § 2255 motion to

vacate, arguing that his § 924(c) conviction is no longer constitutional in light of

United States v. Davis, 139 S. Ct. 2319 (2019), and Brown v. United States,

942 F.3d 1069 (11th Cir. 2019). The government opposed his § 2255 motion

before the district court, but now agrees with Floyd and asks us to vacate and

remand for a full resentencing. We agree with the parties and reverse the district

court’s denial of Floyd’s § 2255 motion.

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

the court’s legal conclusions and its factual findings for clear error. Brown,

942 F.3d at 1072. Section 924(c) provides for a mandatory consecutive sentence

for any defendant who uses a firearm during a crime of violence or drug-trafficking

crime. 18 U.S.C. § 924(c)(l). A “crime of violence” is 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) by its nature, involves a

substantial risk that physical force against the person or property of another may be


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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 § 924(c)(3)(B) as the “residual

clause.” Brown, 942 F.3d at 1071.

      In Davis, the Supreme Court struck down § 924(c)’s residual clause as

unconstitutionally vague. 139 S. Ct. at 2323-24, 2336. We have held that Davis

announced a new rule of constitutional law that applies retroactively to cases, like

Floyd’s, on collateral review. In re Hammoud, 931 F.3d 1032, 1037–39 (11th Cir.

2019). We have also held, in Brown, that conspiracy to commit Hobbs Act

robbery is not categorically a crime of violence under § 924(c)’s elements clause

because the statutory elements of Hobbs Act conspiracy do not require the

existence of a threat or attempt to use force. 942 F.3d at 1075–76.

      Floyd’s conviction for conspiracy to commit Hobbs Act robbery was not a

crime of violence under either § 924(c)’s elements clause, in light of Brown, or

§ 924(c)’s residual clause, in light of Davis. Because there were no other predicate

offenses for his § 924(c) conviction, that conviction must be vacated. We therefore

reverse the district court’s denial of Floyd’s § 2255 motion and remand for

resentencing.

      REVERSED AND REMANDED.




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