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Fifth Circuit Holds Davis Retroactive, Conspiracy Cannot Support 924(c) Convictions

by Dale Chappell

The U.S. Court of Appeals for the Fifth Circuit held that the U.S. Supreme Court’s recent decision in United States v. Davis, 139 S. Ct. 2319 (2019), declaring another residual clause unconstitutional is retroactive and further held that a conspiracy to commit a crime could not support a conviction for use of a firearm during a crime a crime of violence.

The case came before the Court after Antonyo Reece filed a motion to vacate his convictions and sentences imposed under 18 U.S.C. § 924(c) that were connected to conspiracy to commit several bank robberies. Reece had gone to trial and was found guilty of numerous crimes, including conspiracy to commit bank robbery and actual bank robbery, which were all connected to several convictions under § 924(c) for carrying a firearm during all of those bank robbery offenses. He was ultimately sentenced to 1,080 months in prison, which included 10 years for the underlying bank robberies and stacked sentences for the § 924(c) convictions. After the appeal, Reece filed his motion under 28 U.S.C. § 2255 to vacate his sentences and convictions, citing a string of cases that recently invalidated other residual clauses.

Reece’s motion made two arguments: (1) that the “residual clause” of § 924(c) is unconstitutional in light of the other recent cases invalidating similar residual clauses and (2) that his conspiracy offenses could not support the § 924(c) convictions because they had to necessarily fall under the residual clause. The district court denied his motion, ruling that the residual clause of § 924(c) was not affected by the recent decisions in other residual clause cases, and the court further ruled that all of his underlying convictions still qualified as crimes of violence for § 924(c) purposes.

On appeal, the Fifth Circuit granted a certificate of appealability (“COA”) on (1) whether the residual clause of § 924(c) is unconstitutionally vague, (2) whether the U.S. Supreme Court’s recent decision in a case involving a residual clause materially similar to § 924(c)’s clause is retroactive to Reece’s case, and (3) whether a conviction for conspiracy to commit a crime of violence could support a § 924(c) conviction. However, while the appeal was pending, the Supreme Court decided United States v.Davis, 139 S. Ct. 2319 (2019).

The Court noted that Davis would apply to Reece’s case if it announced a new rule of constitutional law. A new rule is announced by a case when “the result was not dictated by precedent existing at the time the defendant’s conviction became final.” In re Williams, 806 F.3d 322 (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 (2013).

Because Davis resolved a circuit split on the issue of the residual clause’s constitutionality, Davis easily satisfies the standard for a new rule of law, the Court explained. This conclusion is dictated by the fact “the result in Davis was not apparent to all reasonable jurists,” according to the Court.

Additionally, Davis must apply retroactively for it to apply to the present case. The default for new rules of constitutional law is that they do not apply retroactively. Teague v. Lane, 489 U.S. 288 (1989). However, there are two narrow exceptions to the principle of non-retroactivity: (1) new substantive rules and (2) new watershed rules of criminal procedure. Welch v. United States, 136 S. Ct. 1257 (2016). The Fifth Circuit concluded that Davis announced a new substantive rule because “the residual clause’s invalidation narrows the scope of conduct for which punishment is now available.”

Therefore, the Court ruled “that Davis announced a new rule of constitutional law retroactively applicable on a first habeas petition,” and as a result, “we consider the merits of Reece’s petition.”

The Court then explained that “Reece’s three firearms convictions predicated on conspiracy to commit bank robbery can be sustained only if conspiracy to commit bank robbery” falls within the elements clause of § 924(c)(3). He argued that conspiracy does not because it does not require “the use, threatened use, [or] attempted use of physical force.” The Court agreed.

To convict Reece of conspiracy under the elements clause, the Government was not required to prove any element involving the actual use, attempted use, or threatened use of force, so conspiracy does not constitute a crime of violence under the elements clause. As such, the only way a conspiracy offense can support a § 924(c) conviction, the Court said, is for it to fall under the now-unconstitutional residual clause. Thus, conspiracy does not qualify as a crime of violence for purposes of § 924(c).

The Government argued that Reece had procedurally defaulted his claim because he never raised it on direct appeal. While it’s generally true that a claim raised for the first time in a § 2255 motion that could have been raised on appeal is procedurally barred from relief in a § 2255 motion, the Court noted an exception here: Reece was actually innocent of the § 924(c) convictions, which avoids any procedural bar, the Court said.

Accordingly, the Court vacated Reece’s sentence and remanded to the district court for resentencing. See: United States v. Reece, 938 F.3d 630 (5th Cir. 2019). 

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United States v. Reece




 

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