           Case: 17-12040   Date Filed: 03/30/2020   Page: 1 of 3



                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-12040
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket Nos. 1:16-cv-22538-KMM,
                        1:13-cr-20524-KMM-2


LEON ESCOURSE-WESTBROOK,

                                                         Petitioner-Appellant,

                                 versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.

                      ________________________

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

                            (March 30, 2020)

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before WILSON, BRANCH, and ANDERSON, Circuit Judges.

PER CURIAM:
              Case: 17-12040     Date Filed: 03/30/2020   Page: 2 of 3



      Leon Escourse-Westbrook is a federal prisoner serving a total 114-month

sentence, consisting of 30 months for conspiracy to commit Hobbs Act robbery in

violation of 18 U.S.C. § 1951(a) (Count One), and a consecutive 84 months for

brandishing a firearm in furtherance of a crime of violence—solely predicated on

his Hobbs Act conspiracy conviction—in violation of 18 U.S.C. § 924(c)(1)(A)(ii)

(Count Three). 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, 588 U.S. __, 139 S. Ct. 2319 (2019), and Brown v.

United States, 942 F.3d 1069 (11th Cir. 2019). Although the government opposed

his § 2255 motion before the district court, it now agrees with Escourse-Westbrook

and calls on us to vacate and remand for a full resentencing.

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

court’s legal conclusions de novo and its findings of fact for clear error. Brown,

942 F.3d at 1072. A felony is a “crime of violence” under § 924(c) if it:

      (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). We commonly refer to § 924(c)(3)(A) as the “elements

clause” and to § 924(c)(3)(B) as the “residual clause.” Brown, 942 F.3d at 1071.



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

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

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

collateral review. In re Hammoud, 931 F.3d 1032, 1038–39 (11th Cir. 2019) (per

curiam). We subsequently 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 necessitate the

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

      In light of Davis and Brown—and as the government concedes—Escourse-

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

crime of violence under either the elements clause or residual clause of § 924(c).

Because there were no other predicate offenses for his § 924(c) conviction, it

cannot stand. We therefore reverse the district court’s denial of Escourse-

Westbrook’s § 2255 motion and remand to the district court for proceedings

consistent with this opinion.

      REVERSED AND REMANDED.




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