              Case: 17-14806    Date Filed: 11/14/2019   Page: 1 of 3


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 17-14806
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket Nos. 0:16-cv-61366-DMM,
                            0:13-cr-60006-DMM-2


KERINO BELIZAIRE,
                                                              Petitioner-Appellant,

                                      versus

UNITED STATES OF AMERICA,
                                                             Respondent-Appellee.

                          ________________________

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

                               (November 14, 2019)

Before TJOFLAT, BRANCH and JULIE CARNES, Circuit Judges.

PER CURIAM:

      On January 31, 2013, Kerino Belizaire pled guilty to a two-count

information charging him in Count 1 with conspiracy to commit a Hobbs Act

robbery, in violation of 18 U.S.C. § 1951(a) (Count 1), and in Count 2 with using
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and carrying a firearm “during and in relation to a crime of violence,” i.e., the

conspiracy to commit Hobbs Act robbery alleged in Count 1, in violation of 18

U.S.C. § 924(c)(1)(A). The District Court sentenced Belizaire to imprisonment for

a term of 27 months on Count 1 and a consecutive term of 60 months on Count 2,

for a total term of 87 months.

       On July 29, 2013, Belizaire moved the District Court pursuant to 28 U.S.C.

§ 2255 to vacate his Count 2 sentence on the ground that the “residual” or “risk-of-

force” clause in § 924(c)(3)(B) was unconstitutional in light of Johnson v. United

States, 135 S. Ct. 2551 (2015), which struck down the residual clause of the Armed

Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2))B)((ii). He further argued

that if § 924(c)’s residual clause was invalidated, his companion conviction for

conspiracy to commit Hobbs Act robbery would not qualify as a “crime of

violence” for § 924(c) purposes. The District Court concluded that Johnson’s

holding did not apply to § 924(c)(3)(B) and denied Belizaire’s motion. It then

granted a certificate of appealability on the issue of whether Johnson applies to

§ 924(c)(3)(B).1




       1
           Although Belizaire has apparently been released from physical custody, his § 2255
motion does not fail on “in custody” grounds because he filed it when he was still imprisoned, and
he is still subject to a four-year term of supervised release. See 28 U.S.C. § 2241(c)(3); Carafas
v. LaVallee, 391 U.S. 234, 238 (1968); Maleng v. Cook, 490 U.S. 488, 491-92 (1989).
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      While Belizaire’s appeal was pending, the Supreme Court invalidated the

residual clause in § 924(c)(3)(B), finding that it was unconstitutionally vague.

United States v. Davis, 139 S. Ct. 2319, 2336 (2019). Shortly thereafter, we held

that the Supreme Court’s ruling in Davis announced a new substantive rule of

constitutional law, made retroactive to other cases on collateral review. In re

Hammoud, 931 F.3d 1032, 1037–39 (11th Cir. 2019). We therefore vacate the

District Court’s decision and remand to the case to allow the Court to determine

whether Belizaire is entitled to relief under § 2255 in light of the above decisions.

See Antoine v. United States, — F. App’x —, No. 17-14807, 2019 WL 3526408

(11th Cir. Aug. 2, 2019) (Mem.) (vacating and remanding the appeal of Belizaire’s

co-conspirator, who was charged under the same statute and presented identical

arguments on appeal).

      VACATED and REMANDED.




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