    Case: 17-11078    Document: 00515138227    Page: 1   Date Filed: 09/30/2019




                     REVISED September 30, 2019

         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT


                                No. 17-11078
                                                                United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
                                                                September 9, 2019
                                                                  Lyle W. Cayce
UNITED STATES OF AMERICA,                                              Clerk

                                          Plaintiff–Appellee,

versus

ANTONYO REECE, also known as Seven,

                                          Defendant–Appellant.




               Appeals from the United States District Court
                    for the Northern District of Texas




Before SMITH, DENNIS, and OWEN, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Antonyo Reece stands convicted of four counts of using and carrying a
firearm during and in relation to a crime of violence (“COV”), in violation of
18 U.S.C. § 924(c). For three of those four counts, the underlying COV was
conspiracy to commit bank robbery. After his convictions were affirmed on
direct appeal, Reece filed a federal habeas corpus petition seeking vacatur of
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                                  No. 17-11078
his three conspiracy-predicated § 924(c) convictions on the ground that
Johnson v. United States, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya,
138 S. Ct. 1204 (2018), rendered § 924(c)(3)(B) unconstitutionally vague. The
district court denied his petition, and Reece appealed. While his appeal was
pending, the Supreme Court held § 924(c)(3)(B) unconstitutional. See United
States v. Davis, 139 S. Ct. 2319 (2019). We therefore vacate and remand for
resentencing.

                                        I.
      Reece, a member of the “Scarecrow Bandits,” was charged with twelve
crimes connected to a series of bank robberies. Specifically, Reece was charged
with three counts of conspiracy to commit bank robbery, two counts of
attempted bank robbery, one count of bank robbery, and six counts—one per-
taining to each of the six aforementioned charges—of using and carrying a fire-
arm during and in relation to a COV.

      Section 924(c) subjects to criminal liability “any person who, during and
in relation to any [COV] . . . uses or carries a firearm, or who, in furtherance of
any such crime, possesses a firearm.” Section 924(c) offenses do not stand
alone—they require a predicate COV. The statute contains two clauses defin-
ing COV. The first, the so-called “elements clause,” defines a COV as a felony
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). The
second, the so-called “residual clause,” defines a COV as a felony “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.” Id.
§ 924(c)(3)(B).

      Reece was convicted on all charges and sentenced to 1,680 months’
imprisonment. He appealed, and his convictions for the attempted robberies
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                                       No. 17-11078
and the related firearms charges were reversed. On remand, he was sentenced
to 1,080 months, of which 960 related to the remaining four § 924(c) charges—
60 months for the first count and 300 months for each additional count. 1 Reece
again appealed, and his sentence was affirmed.                     He did not challenge
§ 924(c)(3)(B)’s constitutionality in either of his direct appeals.

       Reece filed a timely motion under 28 U.S.C. § 2255, claiming, inter alia,
that his § 924(c) convictions were unconstitutional because bank robbery and
conspiracy to commit bank robbery no longer constituted COVs after Johnson
and Dimaya. 2 The magistrate judge recommended that Reece’s claims for
relief from his § 924(c) convictions be denied because both federal bank robbery
and conspiracy to commit bank robbery constituted § 924(c) COVs under
United States v. Sealed Appellant 1, 591 F.3d 812 (5th Cir. 2009). The district
court accepted the magistrate judge’s report and denied the § 2255 motion. The


       1 Initial violations of § 924(c) carry a mandatory five-year minimum sentence to run
consecutively to any sentence received. 18 U.S.C. § 924(c)(1)(A)(i). Repeat violations are
punished by a mandatory twenty-five-year sentence to run consecutively. Id. § 924(c)(1)(C)(i).
At the time that Reece was convicted, that mandatory twenty-five-year penalty could be
imposed for additional violations of the statute that were charged in the same prosecution.
See Davis, 139 S. Ct. at 2324 n.1. The First Step Act of 2018 amended § 924(c)(1)(C) to apply
only after a “prior conviction under this subsection has become final.” Pub. L. 115–391,
§ 403(a), 132 Stat. 5194, 5222.
       2  Reece’s reliance on Johnson and Dimaya is misplaced. Neither announced a new
rule of constitutional law regarding § 924(c)(3)(B). See United States v. Tolliver, 772 F. App’x
144, 146 n.1 (5th Cir. 2019) (“[T]he right ‘recognized by the Supreme Court’ in Dimaya is not
the same right yet to be recognized in § 924(c)(3)(B)—no matter how similar the provisions
may seem.”); United States v. Williams, 897 F.3d 660, 662 (5th Cir. 2018) (“Though the Court
has instructed the courts of appeals to reconsider § 924(c)(3)(B) cases in light of Dimaya, that
instruction does not amount to a determination that the provision is unconstitutional.”
(internal citations omitted)).
        In his reply brief, however, Reece also relied on United States v. Davis, 903 F.3d 483,
486 (5th Cir. 2018), aff'd in part, vacated in part, remanded, 139 S. Ct. 2319 (2019), which
held § 924(c)(3)(B) unconstitutionally vague. That was the first chance he had to invoke
Davis after it was issued. “[W]e liberally construe briefs of pro se litigants and apply less
stringent standards to parties proceeding pro se than to parties represented by counsel. . . .”
Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995) (per curiam). As a result, we consider
Reece’s petition in light of the Supreme Court’s affirmation of our holding in Davis.
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                                  No. 17-11078
court also denied a certificate of appealability (“COA”).

      Reece appealed the latter denial, and this court issued a COA limited to
three questions: (1) whether Dimaya rendered § 924(c)(3)(B) unconstitution-
ally vague, (2) whether Dimaya applied retroactively to § 924(c) cases on col-
lateral review, and (3) whether, in the wake of Dimaya, a conviction for
conspiracy to commit a COV itself qualifies as a COV.

                                       II.
      “When considering challenges to a district court’s decisions under
28 U.S.C. § 2255, this court reviews questions of law de novo.” United States
v. Taylor, 873 F.3d 476, 479 (5th Cir. 2017). Each of the three certified issues
is a question of law.

                                       A.
      A habeas applicant may file a § 2255 motion where a constitutional “right
has been newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review.” 28 U.S.C. § 2255(f)(3). Therefore,
before we consider the merits of Reece’s petition, we address (1) whether Davis
announced a new rule of constitutional law, and (2) if so, whether Davis retro-
actively applies to cases on collateral review.

                                        1.
      “A case announces a new rule . . . when it breaks new ground or imposes
a new obligation on the government”—in other words, “if the result was not
dictated by precedent existing at the time the defendant’s conviction became
final.” In re Williams, 806 F.3d 322, 324 (5th Cir. 2015). “[A result] is not so
dictated . . . unless it would have been apparent to all reasonable jurists.”
Chaidez v. United States, 568 U.S. 342, 347 (2013) (internal quotations marks
omitted). Merely applying an existing rule to a different set of facts does not
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                                        No. 17-11078
create a new rule. Yates v. Aiken, 484 U.S. 211, 216–17 (1988). A new rule
may be created, however, by extending an existing rule to a new legal setting
not mandated by precedent. Stringer v. Black, 503 U.S. 222, 228 (1992).

       Davis easily meets those criteria. 3 In holding that the residual clause of
§ 924(c)(3) was unconstitutionally vague, the Court extended its holdings in
Johnson and Dimaya—which invalidated different (but similarly worded)
provisions in other statutes—to § 924(c)(3)(B). 4 The Davis ruling resolved a
circuit split regarding the residual clause’s constitutionality, which evidences
that the result in Davis was not apparent to all reasonable jurists.

                                               2.
       Because Reece was convicted before Davis’s rule was recognized, Davis
must apply retroactively for Reece to avail himself of its protection. Generally,
new rules of constitutional law do not provide a basis for post-conviction relief.
See Teague v. Lane, 489 U.S. 288, 310 (1989). Because Reece “seeks the benefit
of a new rule, we must decide whether the rule falls within one of the narrow



       3 The government contends that Reece’s petition is procedurally barred because he did
not raise a constitutional challenge to § 924(c)(3)(B) in either of his direct appeals. “[A] col-
lateral challenge may not do service for an appeal.” United States v. Shaid, 937 F.2d 228,
231 (5th Cir. 1991) (en banc) (internal quotation marks and citation omitted). “A section 2255
movant who fails to raise a constitutional or jurisdictional issue on direct appeal waives the
issue for a collateral attack on his conviction, unless there is cause for the default and preju-
dice as a result.” United States v. Kallestad, 236 F.3d 225, 227 (5th Cir. 2000). That standard
imposes “a significantly higher hurdle than the plain error standard” that governs direct
appeals. United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992) (internal quotation
marks and citation omitted). The “cause and prejudice” test applies absent an “extraordinary
case” of actual innocence. See Murray v. Carrier, 477 U.S. 478, 496 (1986).
       Here, however, the cause and prejudice standard does not apply. As Davis reaffirmed,
“a vague law is no law at all.” Davis, 139 S. Ct. at 2323. If Reece’s convictions were based
on the definition of [COV] articulated in § 924(c)(3)(B), then he would be actually innocent of
those charges under Davis. The government’s brief recognizes as much.
       4 And in so holding, the Court expressly rejected the “case-specific approach” for which
the government here advocates because such an approach could not “be squared with
[§ 924(c)(3)’s] text, context, and history.” Davis, 139 S. Ct. at 2324, 2327.
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                                   No. 17-11078
exceptions to the non-retroactivity principle” established in Teague. Burdine
v. Johnson, 262 F.3d 336, 341 (5th Cir. 2001). Two types of rules typically
apply retroactively: (1) “new substantive rules,” Welch v. United States,
136 S. Ct. 1257, 1264 (2016) (alteration, emphasis, and citation omitted), and
(2) “new watershed rules of criminal procedure,” id. (internal quotation marks
and citation omitted).

      “Substantive rules include rules forbidding criminal punishment of cer-
tain primary conduct, as well as rules prohibiting a certain category of punish-
ment for a class of defendants because of their status or offense.” Montgomery
v. Louisiana, 136 S. Ct. 718, 728 (2016) (internal quotation marks and citation
omitted). “In contrast, rules that regulate only the manner of determining the
defendant’s culpability are procedural.” Schriro v. Summerlin, 542 U.S. 348,
353 (2004) (emphasis omitted).

      The Court did not state whether Davis would apply retroactively. See
139 S. Ct. at 2354 (Kavanaugh, J., dissenting) (“And who knows whether the
ruling will be retroactive?”). 5 Nevertheless, the rule announced in Davis meets
the standard for a new substantive rule. The Court observed that § 924(c)(3)’s
residual clause “sweeps more broadly than the elements clause—potentially
reaching offenses, like burglary, that do not have violence as an element but
that arguably create a substantial risk of violence.” Id. at 2334 (internal
quotation marks and citation omitted). In other words, the residual clause
allows for punishment of certain offenses that the elements clause cannot
otherwise reach. Consequently, the residual clause’s invalidation narrows the
scope of conduct for which punishment is now available.




      5 The government concedes that “Dimaya announced a new, substantive rule, and it
therefore applies retroactively on collateral review.”
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                                      No. 17-11078
       This conclusion is reinforced by Welch. There, the Court considered
whether Johnson—which invalidated the residual clause in the Armed Career
Criminal Act (“ACCA”), a provision whose text closely resembles that of
§ 924(c)(3)(B)—applied retroactively. Welch, 136 S. Ct. at 1265–68. Holding
that Johnson established a substantive rule with retroactive application, the
Court stated that “Johnson changed the substantive reach of the [ACCA],
altering the range of conduct or the class of persons that the [Act] punishes.”
Id. at 1265 (some alterations in original) (internal quotation marks and cita-
tion omitted). The rule announced in Davis operates in much the same way.

                                            B.
       Having decided that Davis announced a new rule of constitutional law
retroactively applicable on a first habeas petition, we consider the merits of
Reece’s petition.     Because Davis rendered 18 U.S.C. § 924(c)(3)’s residual
clause unconstitutional, Reece’s three firearms convictions predicated on con-
spiracy to commit bank robbery can be sustained only if conspiracy to commit
bank robbery can be defined as a COV under § 924(c)(3)’s elements clause. 6
Reece contends that his conspiracy-predicated § 924(c) convictions do not qual-
ify as COVs under the elements clause because conspiracy to commit bank
robbery does not require “the use, threatened use, [or] attempted use of physi-
cal force.” 7 We agree.

       When determining whether an offense is a COV under § 924(c)(3)’s
elements clause, we “look[] only to the statutory definitions—the elements—of




       6 The COA issued to Reece framed the issue in broader terms, asking “whether a
conviction for a conspiracy to commit a [COV] itself qualifies as a [COV].” However, we need
only address the question as it relates to conspiracy to commit bank robbery.
       7The government does not directly address whether Reece’s convictions can be sus-
tained under § 924(c)(3)’s elements clause.
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                                       No. 17-11078
a defendant’s offense, and not to the particular facts underlying the convic-
tions.” United States v. Buck, 847 F.3d 267, 274 (5th Cir.), cert. denied, 138 S.
Ct. 149 (2017). To convict of conspiracy under 18 U.S.C. § 371, the government
must prove three elements: “(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).

       Federal bank robbery constitutes a COV under § 924(c) “because the
least culpable conduct under that statute requires, at a minimum, an implicit
threat to use force.” United States v. Cadena, 728 F. App’x 381, 382 (5th Cir.),
cert. denied, 139 S. Ct. 436 (2018). But conspiracy is a crime distinct from the
crime that is the objective of the conspiracy. 8

       To convict Reece of conspiracy to commit bank robbery, the government
was not required to prove any element regarding the use, attempted use, or
threatened use of physical force. Therefore, Reece’s conviction for conspiracy
to commit bank robbery cannot be a COV under § 924(c)(3)’s elements clause.
That the object crime of the conspiracy constituted a COV is irrelevant. We
reached similar conclusions in other conspiracy-predicated § 924(c) cases after
Johnson, Dimaya, and Davis. 9 Our sister circuits support this conclusion. 10


       8See United States v. Lewis, 907 F.3d 891, 895 (5th Cir. 2018), cert. denied, 139 S. Ct.
2776 (2019); accord Davis, 903 F.3d at 485 (“[C]onspiracy to commit an offense is merely an
agreement to commit an offense.”).
       9 See, e.g., United States v. Jones, No. 18-30256, 2019 WL 3774078, at *2 (5th Cir.
Aug. 12, 2019) (per curiam) (ruling that “RICO conspiracy is not a § 924(c) [COV]”); Lewis,
907 F.3d at 895 (holding that conspiracy to commit Hobbs Act robbery did not qualify as a
COV under § 924(c)); Davis, 903 F.3d at 485 (same).
       10See, e.g., United States v. Simms, 914 F.3d 229, 233 (4th Cir. 2019) (“Simms’s
offense—conspiracy to commit Hobbs Act robbery—does not categorically qualify as a [COV]
under the elements-based categorical approach, as the United States now concedes.”).
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                                   No. 17-11078
      After the Supreme Court’s decision in Davis, Sealed Appellant 1 cannot
provide a basis to sustain Reece’s convictions. Sealed Appellant 1, 591 F.3d
at 820, stated that “[c]onspiracy to commit a [COV] also qualifies as a [COV].”
In so holding, Sealed Appellant 1 relied on United States v. Greer, 939 F.2d
1076 (5th Cir. 1991), on reh’g, 968 F.2d 433 (5th Cir. 1992) (en banc). Greer
held “that conspiring to deprive citizens of their civil rights . . . [was] a [COV]
within the meaning of section 924(c), because it create[d] ‘a substantial risk’ of
violence.” Id. at 1099 (emphasis added). This “substantial risk” language
appears only in § 924(c)(3)’s residual clause, not in the elements clause. There-
fore, Sealed Appellant 1’s rule, insofar as it applies in this case, necessarily
relies on § 924(c)(3)’s now constitutionally infirm residual clause.

                                         III.
      Because Reece’s conspiracy-predicated § 924(c) convictions must be set
aside, we consider remedy. “In some cases, when we reverse convictions or
sentences on fewer than all counts, the aggregate sentence must be unbundled,
and the defendant must be resentenced on all counts.” United States v. Clark,
816 F.3d 350, 360 (5th Cir. 2016). Reece’s initial § 924(c) conviction allowed
for an enhanced sentence on his other § 924(c) offenses. 11 Therefore, we
VACATE the sentence and REMAND for resentencing. See Lewis, 907 F.3d
at 895. We leave it to the district court’s sound discretion to determine an
appropriate sentence. See Dean v. United States, 137 S. Ct. 1170, 1175 (2017);
Pepper v. United States, 562 U.S. 476, 487–89 (2011).




      11 Reece was sentenced to 60 months on Count 2 and 300 months each on Counts 17,
21, and 23. Count 2’s predicate COV was conspiracy to commit bank robbery (Count 1).
                                          9
