            Case: 17-13135    Date Filed: 03/13/2020   Page: 1 of 5




                                                           [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                               No. 17-13135
                           Non-Argument Calendar
                         ________________________

          D.C. Docket Nos. 0:15-cv-62393-JIC; 0:14-cr-60174-JIC-2



SCHADRAC HOSSAIN,

                                               Petitioner - Appellant,

versus

UNITED STATES OF AMERICA,

                                               Respondent - Appellee.

                         ________________________

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

                              (March 13, 2020)

Before WILSON, LAGOA, and ANDERSON, Circuit Judges.

LAGOA, Circuit Judge:
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       Schadrac Hossain (“Hossain”) appeals the district court’s denial of his

amended 28 U.S.C. § 2255 motion to vacate his conviction and also moves for

summary reversal.1 For the reasons discussed below, we grant Hossain’s motion for

summary reversal, vacate Hossain’s 18 U.S.C § 924(c) conviction (Count 5), and

remand to the district court for resentencing.

I. FACTUAL AND PROCEDURAL HISTORY

       On July 24, 2014, Hossain and his co-defendant, Michael Brown, were

charged in a multiple-count indictment. Hossain pled guilty to Counts 1 and 5 in

exchange for the government dismissing the remaining counts against him. Count 1

charged both Hossain and Brown with conspiracy to commit Hobbs Act robbery

under 18 U.S.C. § 1951(a). Count 5 charged both Hossain and Brown with

knowingly carrying and possessing a firearm during and in relation to a crime of

violence (Count 1) and a drug trafficking crime (Counts 2 and 3) in violation of 18

U.S.C. § 924(c)(1)(A) and (2).            The plea agreement entered into by Hossain

specified that the § 924(c) charge to which Hossain was pleading guilty was

predicated solely on the crime of violence as outlined in Count 1, and this was

reaffirmed during the plea colloquy when the district court adjudged Hossain “guilty




       1
          This Court in Brown v. United States, 942 F.3d 1069 (11th Cir. 2019), granted Hossain’s
co-defendant, Michael Brown, a summary reversal of his § 924(c) conviction based on identical
facts and arguments as those raised by Hossain in this appeal.
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of Count 1, conspiracy to commit Hobbs Act robbery” and adjudged Hossain “guilty

of Count 5, use of a firearm during the commission of a crime of violence.”

      Of significance to this appeal, Hossain filed an amended § 2255 motion to

vacate, arguing that his § 924(c) conviction was invalid in light of Johnson v. United

States, 135 S. Ct. 2551 (2015), because conspiracy to commit Hobbs Act robbery no

longer qualified as a crime of violence. The district court denied the § 2255 motion

based on this Court’s precedent in Ovalles v. United States, 861 F.3d 1257 (11th Cir.

2017), on reh’g en banc, 905 F.3d 1231 (11th Cir.), opinion reinstated in part, 905

F.3d 1300 (11th Cir. 2018), abrogated by United States v. Davis, 139 S. Ct. 2319

(2019). Hossain timely filed a notice of appeal, and on July 15, 2019, this Court

granted Hossain a certificate of appealability as to whether his conviction for using

a firearm during a crime of violence in violation of § 924(c) remained valid in light

of Davis. This appeal ensued, and the government concedes that Hussain’s § 924(c)

conviction should be vacated and the case remanded to the district court for

resentencing.

II. STANDARD OF REVIEW

      When reviewing the denial of a § 2255 motion, “we review legal issues de

novo and factual findings under a clear error standard.” United States v. Walker, 198

F.3d 811, 813 (11th Cir. 1999).




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III. ANALYSIS

          Under § 924(c)(3), a “crime of violence” is defined as a felony offense that
either:

   (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.
Subsection (A) is known as “the elements clause,” and subsection (B) is known as

“the residual clause.” See In re Hammoud, 931 F.3d 1032, 1040 (11th Cir. 2019).

          In Davis, the Supreme Court held that § 924(c)(3)(B)’s residual clause was

void for vagueness like the residual clause at issue in Johnson. 139 S. Ct. at 2336.

Davis, however, did not address the definition of “crime of violence” found in §

924(c)’s elements clause. Following Davis, this Court in Brown v. United States,

942 F.3d 1069 (11th Cir. 2019), held that conspiracy to commit Hobbs Act robbery

does not qualify as a crime of violence under § 924(c)(3)(A)’s elements clause. 2 Id.

at 1075–76.

          In light of the Supreme Court’s ruling in Davis and this Court’s ruling in

Brown, summary reversal is appropriate as Count 1 for conspiracy to commit Hobbs

Act robbery served as the sole predicate offense for Hossain’s § 924(c) conviction,



        The mandate in Brown issued on January 7, 2020, after briefing in this case had been
          2

completed.

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and conspiracy to commit Hobbs Act robbery no longer qualifies as a crime of

violence. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969)

(explaining that summary reversal is appropriate when “rights delayed are rights

denied” or “one of the parties is clearly right as a matter of law so that there can be

no substantial question as to the outcome of the case”). 3

IV. CONCLUSION

       Accordingly, we grant Hossain’s motion for summary reversal of the district

court’s denial of his amended § 2255 motion, vacate Hossain’s § 924(c) conviction

(Count 5), and remand to the district court for resentencing.4

       REVERSED AND REMANDED




       3
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted all Fifth Circuit decisions issued before October 1, 1981 as binding
precedent.
       4
          In his motion for summary reversal, Hossain states that he has completed his sentence,
is currently in a halfway house and scheduled to be placed on supervised release. As such, the
proceedings before the district court weigh heavily in favor of treating this matter with urgency.
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