United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree, United States District Judge.
2016, proceeding pro se, Mr. Brown asked the Tenth
Circuit for permission to file a successive petition under 28
U.S.C. § 2255. Doc. 235. On December 31, 2019, the Tenth
Circuit granted that permission. Doc. 249. Mr. Brown has now
filed a § 2255 motion contending that one of his two
convictions pursuant to 18 U.S.C. § 924(c) (count 4) is
invalid, relying on the Supreme Court's recent decision
in United States v. Davis, 139 S.Ct. 2319 (2019).
Doc. 251. Mr. Brown claims that: (1) his conviction in Count
4 of violating § 924(c) is based on his conviction in
Count 1 for conspiracy to commit carjacking, (2) a conspiracy
to commit carjacking cannot support a § 924(c)
conviction, and (3) thus, the court must vacate his §
924(c) conviction in count 4. Id. The government
agrees with Mr. Brown. In this Memorandum and Order, the
court ratifies the parties' agreement and vacates Mr.
Brown's conviction of the crime alleged in count 4.
April 1, 1998, Mr. Brown was indicted on five counts: (1)
conspiracy to commit carjacking, (2) carjacking, (3) a
violation of 18 U.S.C. § 924(c) parasitic on carjacking,
(4) a violation of 18 U.S.C. § 924(c) parasitic on
conspiracy to commit carjacking, and (5) being a felon in
possession of a firearm. Doc. 1. On August 31, 1998, a jury
convicted Mr. Brown of all counts. Doc. 123. The court
sentenced Mr. Brown to 410 months in custody, apportioning
his custody sentence among the five counts as follows:
. Count 1 - conspiracy to commit carjacking
- 110 months, concurrent to counts 2 and 5;
. Count 2 - carjacking - 110 months,
concurrent to counts 1 and 5;
. Count 3 - § 924(c), with a predicate
crime of violence of carjacking, 60 months, consecutive to
counts 1, 2, and 5;
. Count 4 - § 924(c), with a predicate
crime of violence of conspiracy to commit carjacking, 240
months, consecutive to counts 1, 2, 3, and 5;
. Count 5 - felon in possession of a firearm
- 110 months, concurrent with counts 1 and 2, consecutive
with counts 3 and 4.
See Doc. 149 at 2. A 110-month sentence was imposed
on counts 1, 2, and 5, concurrent with each other. A
consecutive 60-month sentence was imposed on count 3. Another
consecutive 240-month sentence was imposed on count 4.
Id. The validity of the consecutive 240-month
sentence imposed under Mr. Brown's conviction on count 4
is the subject of Mr. Brown's current petition under
Tenth Circuit affirmed Mr. Brown's convictions and
sentences on appeal. Doc. 186. In 2001, Mr. Brown filed a
petition under 28 U.S.C. § 2255, which the district
court denied. Docs. 202, 217. The Tenth Circuit again
affirmed. Doc. 223. Thirteen years later, in 2016, Mr. Brown
filed a pro se petition asking the Tenth Circuit to
authorize him to file a successive petition. Doc. 235. On
December 31, 2019, the Tenth Circuit granted Mr. Brown
permission to file a successive § 2255 petition. Doc.
249 at 2. Mr. Brown filed that § 2255 petition eight
days later. Doc. 251.
Davis to his case, as the Circuit has allowed Mr.
Brown to do, he argues that his § 924(c) conviction on
count 4 is constitutionally infirm. Section 924(c) penalizes
(as relevant here), carrying a firearm during and in relation
to a crime of violence. A crime of violence, as defined by
§ 924(c)(3), is 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 commonly known as the force clause;
subsection (B) is commonly known as the residual clause.
Davis held the residual clause unconstitutional.
Because Davis applies to cases on collateral review,
the residual clause cannot sustain Mr. Brown's §
924(c) conviction. United States v. Bowen, 936 F.3d
1091, 1097-98 (10th Cir. 2019) (“[T]he Supreme
Court's ruling in Davis that §
924(c)(3)'s residual clause is void for vagueness is a
new constitutional rule that is retroactive on collateral
the United States and Mr. Brown also agree that the force
clause cannot sustain Mr. Brown's conviction. A crime of
violence under the force clause must have, as one of its
elements, the use, attempted use, or threatened use of
physical force. § 924(c)(3)(A). The government agrees
that the offense underlying Mr. Brown's § 924(c)
conviction in court four- conspiracy to commit
carjacking-does not have as an element the use, attempted
use, or threatened use of physical force. As the Tenth
Circuit has explained, conspiracy convictions do “not
require proof of the use, attempted use, or threatened use of
physical force.” United Statesv.
Fell, 511 F.3d 1035, 1037 (10th Cir. 2007). Other
circuits agree. 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 crime of violence under the
elements-based categorical approach, as the United States now
concedes.”); United States v. Reece, 938 F.3d
630, 636 (5th Cir. 2019) (“To convict Reece of
conspiracy to commit bank robbery, the government was not
required to prove any element ...