                      NONPRECEDENTIAL DISPOSITION
                  To be cited only in accordance with Fed. R. App. P. 32.1




                  United States Court of Appeals
                                  For the Seventh Circuit
                                  Chicago, Illinois 60604

                                 Argued December 9, 2019
                                 Decided January 24, 2020

                                          Before

                           FRANK H. EASTERBROOK, Circuit Judge

                           ILANA DIAMOND ROVNER, Circuit Judge

                           MICHAEL Y. SCUDDER, Circuit Judge

Nos. 17-3306, 17-3307

DEDRICK BUFKIN and DIAMOND                         Appeals from the United States District
TONEY,                                             Court for the Northern District of Indiana,
          Petitioners-Appellees,                   Hammond Division.

             v.                                    Nos. 2:16-cv-00236-JVB & 2:16-cv-00181-
                                                   JVB
UNITED STATES OF AMERICA,
          Respondent-Appellant.                    Joseph S. Van Bokkelen, Judge.

                                        ORDER

       Dedrick Bufkin and Diamond Toney lured a victim from a dating website to a
vehicle driven by Toney where the two defendants threatened the victim at gunpoint,
robbed, bound, and gagged him, and drove him around in the trunk of the car for four
hours before releasing him. A grand jury charged the two with kidnapping (18 U.S.C.
§ 1201(a)(1)) and with knowingly brandishing a firearm during and in relation to a
crime of violence, kidnapping, in violation of 18 U.S.C. § 924(c).
Page 2                                                                         Nos. 17-3306 & 17-3307


       Both defendants pled guilty to the section 924(c) count and the government
agreed to dismiss the kidnapping count. Section 924(c) increases the penalties for using
or carrying a firearm during or in relation to certain crimes of violence and states:

               (3) For purposes of this subsection the term “crime of violence”
         means 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.

18 U.S.C.A. § 924(c)(3). Subsection A is often called the “force clause,” and
subsection B, the “residual clause.”

       In hindsight, dismissing the kidnapping charge and relying on the crime of
violence charge turned out to be the wrong choice for the government. In 2015, two
years after the parties entered into the plea agreement, the Supreme Court issued an
opinion in Johnson v. United States, 135 S. Ct. 2551 (2015), in which it evaluated a statute
with almost identical language to § 924(c)(3)(B). The court in Johnson found that the
language of the very similar statute left too much uncertainty about how much risk it
takes for a crime to qualify as a violent felony and consequently held that “imposing an
increased sentence under [the statute at issue] violates the Constitution’s guarantee of
due process.” Id. at 2558, 2563. After the Court issued its opinion in Johnson, in 2016,
Toney and Bufkin filed identical motions under 28 U.S.C. § 2255, arguing that in light of
the Supreme Court’s holding in Johnson, kidnapping does not qualify as a “crime of
violence” under the nearly identical wording of section 924(c), and therefore their
convictions must be vacated. R. 71, 74.

        While these motions were pending before the district court, this court had the
opportunity to apply the holding of Johnson to section 924(c) directly, and concluded,
that in light of Johnson, “kidnapping under 18 U.S.C. § 1201(a) is not a crime of violence
as defined in § 924(c).” United States v. Jenkins, 849 F.3d 390, 394 (7th Cir. 2017), cert.
granted, judgment vacated, 138 S. Ct. 1980 (2018), reinstated sub. nom., United States v.
Jackson, 932 F.3d 556, 557 (7th Cir. 2019).1 The opinion reasoned that kidnapping does


         1The Supreme Court granted certiorari and vacated the judgment and remanded to this court for
further consideration in light of its then-new decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018). See
United States v. Jenkins, 138 S. Ct. 1980 (2018). Dimaya involved an identically-worded immigration statute.
We can skip over this interim period of time when Dimaya called into question all similarly worded
Nos. 17-3306 & 17-3307                                                                                Page 3

not require physical force as an element of the crime, thus precluding it from being a
“crime of violence” under the force clause, section 924(c)(3)(A), and that the residual
clause was unconstitutionally vague, thus precluding kidnapping from being a “crime
of violence” pursuant to section 924(c)(3)(B). Id. at 394.

       Relying on this new Jenkins decision from this court, and on the Supreme Court’s
decision in Johnson, the district court granted both petitions and vacated both
defendants’ section 924(c) convictions.

       Once the court vacated the sole charge of conviction for both defendants, the
government, on September 27, 2017, filed a Motion to Reinstate Count I of the
indictment—the kidnapping charge under 18 U.S.C. § 1201(a)(1). The government
argued that the court’s decision to vacate the sole count to which the defendant pled
guilty frustrated the purpose of the plea agreement and therefore should “unwind” the
case to the pre-plea stage. R. 92 at 4-5. In the alternative, the government argued that
Toney and Bufkin violated the plea agreement by contesting a ground of conviction,
and therefore, the government should be permitted to institute further proceedings
against the defendants. Id. at 5.

        The district court, however, never ruled on the government’s Motion to Reinstate
Count I. Instead, on November 3, 2017, the government appealed the district court’s
decision to vacate the conviction and sentence of the defendants on Count II. R. 110,
111. On that same day, the government filed a “Motion to Stay Proceedings on Count I
or, in the Alternative, to Extend Time to File Reply.” R. 116. The district court granted
the stay. R. 127. In its appeal to this court on Count II, the government argued that the
language that the Supreme Court found to be unconstitutionally vague in Johnson was
materially different from the language of section 924(c) at issue in this case. The
government did not appeal the finding that kidnapping is not a crime of violence under
the force clause of section 924(c)(3)(A), and thus the only question at issue in the
government’s appeal was whether the language of 924(c)(3)(B)—the residual clause—
was unconstitutionally vague.




statutes because ultimately, in 2018, the Supreme Court addressed the exact question presented in Jenkins
and agreed with the original holding of the Seventh Circuit panel in Jenkins, that is, that the definition of
“crime of violence” in 18 U.S.C. § 924(c) is unconstitutionally vague. United States v. Davis, 139 S. Ct. 2319,
2336 (2019). Upon remand, the Seventh Circuit noted that “the question the Court remanded for us to
consider in these appeals has now been answered by the Court itself” in Davis. United States v. Jackson, 932
F.3d 556, 558 (7th Cir. 2019).
Page 4                                                                         Nos. 17-3306 & 17-3307


        In the meantime, however, on June 24, 2019, the Supreme Court upset the
government’s theory and confirmed what this court had decided in Jenkins—that is, that
the definition of “crime of violence” in 18 U.S.C. § 924(c)(3)(B) was unconstitutionally
vague. United States v. Davis, 139 S. Ct. 2319, 2336 (2019). The decision in Davis
unequivocally put to rest any question about the constitutionality of section 924(c)(3)(B).
In light of Davis, it is clear that using a firearm to kidnap a victim does not violate 18
U.S.C. § 924(c)(3)(B). Because the new rule announced in Davis is substantive—that is, it
alters the range of conduct or class of persons that the law punishes—it applies
retroactively. Welch v. United States, 136 S. Ct. 1257, 1266 (2016).

       After the initial appeal and briefing in this case, the parties submitted
supplemental filings to this court to address the decision in Davis.2 See Position
Statement of the United States, (Appellate R. 50), and Response of Petitioners-Appellees
Bufkin and Toney to the Position Statement of the United States (Appellate R. 55). But
before we can address any of the arguments in these filings we must determine whether
we have jurisdiction to hear this matter at all. See Restoration Risk Retention Grp., Inc. v.
Gutierrez, 880 F.3d 339, 345 (7th Cir. 2018) (“We have an independent obligation to
ensure that both the district court and this court have subject matter jurisdiction even
when neither the parties nor the district court raised the issue.”)

       Article III of the Constitution “restricts the authority of federal courts to
resolving ‘the legal rights of litigants in actual controversies,’” Genesis Healthcare Corp. v.
Symczyk, 569 U.S. 66, 71–72 (2013) (citing Valley Forge Christian Coll. v. Americans United
for Separation of Church and State, Inc., 454 U.S. 464, 471 (1982)). Federal courts lack the
power to “decide questions that cannot affect the rights of litigants in the case before
them.” Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477 (1990) (quoting North Carolina v. Rice,
404 U.S. 244, 246 (1971)). And that controversy and personal stake in the outcome “must
be extant at all stages of review, not merely at the time the complaint is filed.’”
Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (quoting Preiser v. Newkirk, 422
U.S. 395, 401 (1975)). If an intervening circumstance deprives the plaintiff of a “personal
stake in the outcome of the lawsuit,” at any point during litigation, the action can no
longer proceed. Lewis v. Continental Bank Corp., 494 U.S. 472, 477–478 (1990) (internal
quotation marks omitted).




         2Prior to this, the parties also submitted supplemental briefs to discuss the Supreme Court’s
holding in Sessions v. Dimaya, 138 S. Ct. 1204 (2018). In Dimaya, the Court found unconstitutionally vague
the language in an immigration statute that had the identical language to that found in 18 U.S.C. §924(c).
This interim step is now unnecessary to discuss given the holding in Davis.
Nos. 17-3306 & 17-3307                                                             Page 5



       After the Supreme Court’s decision in Davis, the United States filed a “Position
Statement” in which it conceded that “in light of Davis, using a firearm to kidnap a
victim does not violate 18 U.S.C. § 924(c)(1)(A),” and that Davis applies retroactively.
Position Statement of the United States, R. 50 at 2. In view of the Supreme Court’s
controlling decision in Davis, the government concedes that it no longer has a ground
on which to challenge the district court’s order. Consequently, there is no case or
controversy that remains from the appealed order—that is, the order of September 15,
2017, vacating the section 924(c) convictions.

        Instead, the United States would like us to decide whether the kidnapping
charge, under Count I of the indictment, can be reinstated. This was the exact question
posed to the district court in the government’s Motion to Reinstate Count I—a motion
that sits pending, but stayed, on the district court’s docket. See R. 92, 103, 116, & 127.
The district court must take a first stab at answering this question before we can
consider it on appeal. We dismiss this case for lack of jurisdiction and remand to the
district court for resolution of the Motion to Reinstate Count I and any other unresolved
business before it.
