     Case: 16-11239      Document: 00515409271         Page: 1    Date Filed: 05/08/2020



                                   REVISED May 8, 2020


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

                                      No. 16-11239
                                                                               Fifth Circuit

                                                                             FILED
                                                                          May 6, 2020

UNITED STATES OF AMERICA,                                               Lyle W. Cayce
                                                                             Clerk
              Plaintiff - Appellee

v.

LAVADA CARREON,

              Defendant - Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:16-CV-591


Before JONES, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       We granted a certificate of appealability allowing appellant Lavada
Carreon to appeal the district court’s denial of her 28 U.S.C. § 2255 habeas
petition.   In light of the government’s recent concessions, we vacate and
remand for resentencing.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-11239

      In 2009, Carreon and her co-defendants kidnapped at gunpoint the
brother of a man who owed them drug money.                    Based on Carreon’s
involvement,    she   was    convicted        of   kidnapping    in   violation    of
18 U.S.C. § 1201(a) and using a firearm during the commission of a crime of
violence in violation of 18 U.S.C. § 924(c). The kidnapping conviction was the
predicate crime of violence for the Section 924(c) conviction.
      After Carreon’s convictions were affirmed on direct appeal, she filed a
Section 2255 habeas petition, arguing that her Section 924(c) conviction should
be vacated because Johnson v. United States, 135 S. Ct. 2551 (2015) rendered
Section 924(c)(3)(B)’s crime of violence definition unconstitutional.             But
Johnson did not address Section 924(c)(3)(B).         See United States v. Reece,
938 F.3d 630, 633 n.2 (5th Cir. 2019). The district court thus denied Carreon’s
petition, and we denied a certificate of appealability. The Supreme Court
nevertheless granted Carreon’s subsequent petition for certiorari, vacated our
decision, and remanded the case for reconsideration in light of Sessions v.
Dimaya, 138 S. Ct. 1204 (2018). See Carreon v. United States, 138 S. Ct. 1985
(2018). Dimaya did not address the constitutionality of Section 924(c)(3)(B)
either. See Reece, 938 F.3d at 633 n.2.
      On remand, we granted a certificate of appealability on two issues:
“(1) whether Carreon’s § 2255 motion was filed timely and (2) whether her
§ 924(c) conviction is constitutionally sound.” While the appeal was pending,
the Supreme Court squarely held that Section 924(c)(3)(B)’s crime of violence
definition is unconstitutional.   See Davis v. United States, 139 S. Ct. 2319
(2019).   We therefore ordered supplemental briefing on Davis’s effect on
Carreon’s appeal.
      The government now “affirmatively waives its timeliness defense.” We
thus turn to the second certified issue. See Day v. McDonough, 547 U.S. 198,


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205, 210 n.11, 126 S. Ct. 1675, 1681, 1684 n.11 (2006) (recognizing that
untimeliness under the AEDPA is not a jurisdictional defect; it is an
affirmative defense that the government may waive); United States v. Pierce,
489 F. App’x 767, 768 (5th Cir. 2012).
      Carreon argues her Section 924(c) conviction is unconstitutional because
kidnapping is no longer a crime of violence under Davis. Section 924(c) defines
“crime of violence” in two alternative ways. An offense qualifies if it is a felony
and (1) “has as an element the use, attempted use, or threatened use of
physical force against the person or property of another” (the elements clause);
or (2) “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” (the residual clause). 18 U.S.C. § 924(c)(3)(A) & (B). As noted, Davis
held that Section 924(c)(3)(B)’s residual clause definition is unconstitutional.
139 S. Ct. at 2336. Thus, following Davis, Carreon’s Section 924(c) conviction
“can be sustained only if [kidnapping] can be defined as a [crime of violence]
under § 924(c)(3)’s element’s clause.” Reece, 938 F.3d at 635. The government
concedes that it cannot.       We therefore vacate Carreon’s Section 924(c)
conviction.
      We note, however, that “[o]ur court’s practice when one, but not all
counts, within a multipart conviction has been vacated has generally been to
remand to allow the district court to resentence in the first instance.” United
States v. McRae, 795 F.3d 471, 483 (5th Cir. 2015). Indeed, the Davis majority
relied on this practice in addressing the concerns of its dissenters.
139 S. Ct. at 2336 (“[W]hen a defendant’s § 924(c) conviction is invalidated,
courts of appeals routinely vacate the defendant’s entire sentence on all counts
so that the district court may increase the sentences for any remaining counts
if such an increase is warranted.”). Carreon was sentenced to ninety months


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                                 No. 16-11239

of imprisonment on her kidnapping count despite a significantly higher
guidelines range. The record indicates the district court may have issued that
lower sentence because of the mandatory consecutive sixty-month sentence
Carreon received on her Section 924(c) count. We therefore find it appropriate
to vacate Carreon’s sentence on the kidnapping count and remand for
resentencing, leaving it to the district court’s sound discretion to determine an
appropriate sentence. See Dean v. United States, 137 S. Ct. 1170, 1175 (2017).
      For the foregoing reasons, Carreon’s Section 924(c) conviction is
VACATED, and Carreon’s sentence on the kidnapping count is VACATED
and REMANDED to the district court for resentencing.




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