United States v. Reece

• Decision Date: 09 September 2019
• Docket Number: No. 17-11078,17-11078
• Citation: 938 F.3d 630
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Antonyo REECE, also known as Seven, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

938 F.3d 630

UNITED STATES of America, Plaintiff–Appellee,

v.Antonyo REECE, also known as Seven, Defendant–Appellant.

No. 17-11078

United States Court of Appeals, Fifth Circuit.

September 9, 2019

REVISED September 30, 2019

Amy Jeannine Mitchell, Leigha Amy Simonton, Assistant U.S. Attorney, U.S. Attorney's Office, Dallas, TX, for Plaintiff-Appellee.

Antonyo Reece, Pro Se.

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 his three conspiracy-predicated § 924(c) convictions on the ground that Johnson v. United States , ––– U.S. ––––, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015), and Sessions v. Dimaya , ––– U.S. ––––, 138 S. Ct. 1204, 200 L.Ed.2d 549 (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 , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (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 pertaining to each of the six aforementioned charges—of using and carrying a firearm 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 defining 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 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 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) unconstitutionally vague, (2) whether Dimaya applied retroactively to § 924(c) cases on collateral 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 retroactively 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, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013) (internal quotations marks omitted). Merely applying an existing rule to a different set of facts does not create a new rule. Yates v. Aiken , 484 U.S. 211, 216–17, 108 S.Ct. 534, 98 L.Ed.2d 546 (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, 112 S.Ct. 1130, 117 L.Ed.2d 367 (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, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Because Reece "seeks the benefit of a new rule, we must decide whether the rule falls within one of the narrow 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 , ––– U.S. ––––, 136 S. Ct. 1257, 1264, 194 L.Ed.2d 387 (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 certain primary conduct, as well as rules prohibiting a certain category of punishment for a class of defendants because of their status or offense." Montgomery v. Louisiana , ––– U.S. ––––, 136 S. Ct. 718, 728, 193 L.Ed.2d 599 (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, 124 S.Ct. 2519, 159 L.Ed.2d 442 (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.

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 citation 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 conspiracy 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 qualify as COVs under the elements clause because conspiracy to commit bank robbery does not require "the use, threatened use, [or] attempted use of physical 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 a defendant’s offense, and not to the particular facts underlying the convictions." United States v....