     Case: 18-40678      Document: 00515172491         Page: 1    Date Filed: 10/24/2019




                       REVISED OCTOBER 24, 2019

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                    No. 18-40678                                FILED
                                  Summary Calendar                       October 23, 2019
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

CLARENCE ROBINSON,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:16-CV-337
                             USDC No. 1:94-CR-40-1


Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
       Clarence Robinson, federal prisoner # 02476-095, appeals the denial of
his 28 U.S.C. § 2255 motion, in which he challenged his conviction of knowingly
using and carrying a firearm during and in relation to a crime of violence. See
18 U.S.C. § 924(c). We granted a certificate of appealability. The Government


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 18-40678

has conceded that Robinson is entitled to vacatur of his § 924(c) conviction and
the associated sentence. As discussed below, we agree with the Government
and therefore reverse the denial of § 2255 relief and remand to the district
court.    Because Robinson may be entitled to immediate release, we have
expedited this appeal.
         The district court determined that Robinson’s § 2255 motion was
untimely to the extent it relied on Mathis v. United States, 136 S. Ct. 2243
(2016). But the motion was not based on Mathis; it was based on Johnson v.
United States, 135 S. Ct. 2551 (2015). In any event, the Government has
expressly waived any objection to the timeliness of Robinson’s § 2255 motion;
it has also expressly waived any conceivable claim of procedural default. See
Day v. McDonough, 547 U.S. 198, 202 (2006) (“[W]e would count it an abuse of
discretion to override a State’s deliberate waiver of a limitations defense.”); see
also United States v. Wynn, 292 F.3d 226, 230 (5th Cir. 2002) (noting that the
AEDPA limitations statute is not jurisdictional).
         Section 924(c) establishes an additional penalty for “any person who,
during and in relation to any crime of violence or drug trafficking crime . . .
uses or carries a firearm, or who, in furtherance of any such crime, possesses
a firearm.” § 924(c)(1). For § 924(c) purposes, a “crime of violence” is defined
as a felony offense that “(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.” § 924(c)(3).
         Shortly after we granted a COA in this matter, the Supreme Court held
that the “substantial risk” clause of § 924(c)(3)(B) is unconstitutionally vague.
See United States v. Davis, 139 S. Ct. 2319, 2336 (2019). This court recently



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determined that “Davis announced a new rule of constitutional law
retroactively applicable on a first habeas petition.” United States v. Reece, 938
F.3d 630, 635 (5th Cir. 2019).
      So Robinson’s § 924(c) conviction can be sustained only if the predicate
offense for the conviction, conspiring to escape from federal custody, is a crime
of violence under the elements clause of § 924(c)(3)(A). That clause defines
“crime of violence” as an offense that has “as an element the use, attempted
use, or threatened use of physical force against the person or property of
another.” 18 U.S.C. § 924(c)(3)(A). In deciding whether an offense meets this
definition, courts “appl[y] a categorical approach, looking only to the statutory
definitions—i.e., the elements—of a defendant’s offense, and not to the
particular facts underlying the convictions.” United States v. Buck, 847 F.3d
267, 274 (5th Cir.), cert. denied sub nom. Allen v. United States, 137 S. Ct. 2231,
(2017), and cert. denied, 138 S. Ct. 149 (2017). To convict Robinson of an 18
U.S.C. § 371 conspiracy offense, the Government was required to prove “(1) an
agreement between two or more persons to pursue an unlawful objective; (2)
the defendant’s knowledge of the unlawful objective and voluntary agreement
to join the conspiracy; and (3) an overt act by one or more of the members of
the conspiracy in furtherance of the objective of the conspiracy.” United States
v. Coleman, 609 F.3d 699, 704 (5th Cir. 2010). There is no element requiring
“the use, attempted use, or threatened use of physical force against the person
or property of another.” 18 U.S.C. § 924(c)(3)(A). As a result, Robinson’s
§ 924(c) conviction, and the associated 240-month sentence of imprisonment,
must be vacated. The Government concedes as much.
      The judgment of the district court is REVERSED, and the matter is
REMANDED to the district court for disposition consistent with this opinion.
Robinson’s motion for the appointment of counsel is DENIED as unnecessary.



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Robinson’s motion for bond pending appeal is DENIED, but the mandate shall
issue forthwith.




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