PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4301
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONALD EUGENE WALKER,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. William L. Osteen, Jr., District Judge. (1:14-cr-00271-WO-1)
Argued: September 23, 2016 Decided: August 9, 2019
Before NIEMEYER, MOTZ, and WYNN, Circuit Judges.
Vacated and remanded by published opinion. Judge Motz wrote the opinion, in which
Judge Niemeyer and Judge Wynn joined.
ARGUED: John Scott Coalter, COALTER LAW, P.L.L.C., Greensboro, North Carolina,
for Appellant. JoAnna Gibson McFadden, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Ripley Rand,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina, for Appellee.
DIANA GRIBBON MOTZ, Circuit Judge:
Donald Eugene Walker pled guilty to kidnapping in violation of 18 U.S.C. § 1201(a)
and brandishing a firearm during and in relation to a crime of violence in violation of 18
U.S.C. § 924(c). The district court sentenced Walker to 324 months on the kidnapping
charge, followed by 84 months for brandishing a firearm “during and in relation to a crime
of violence.” On appeal, Walker principally challenges his § 924(c) conviction. 1 For the
reasons set forth within, we vacate Walker’s § 924(c) conviction and remand to the district
court with instructions to resentence him.
I.
Under 18 U.S.C. § 924(c), a person who uses or carries a firearm “during and in
relation to any crime of violence” or who “possesses a firearm” “in furtherance of any such
crime” may be separately convicted of both the underlying crime of violence and the use,
carrying, or possession of that firearm. Section 924(c)(3) defines “crime of violence” as
“an offense that is a felony” and
1
Walker also contends that the district court abused its discretion in denying his
motion to withdraw his guilty plea. A defendant has “no absolute right to withdraw a guilty
plea,” and the district court has discretion to determine whether there exists “a fair and just
reason for withdrawal.” United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000);
see Fed. R. Crim. P. 11(d)(2)(B). Because the “most important consideration in resolving
a motion to withdraw a guilty plea is an evaluation of the Rule 11 colloquy at which the
guilty plea was accepted,” a properly conducted Rule 11 plea colloquy raises “a strong
presumption that the plea is final and binding.” United States v. Bowman, 348 F.3d 408,
414 (4th Cir. 2003) (citation omitted). Here, the district court’s plea colloquy fully
complied with Rule 11. We therefore conclude that the district court did not abuse its
discretion in denying Walker’s motion.
2
(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.
18 U.S.C. § 924(c)(3). Courts refer to § 924(c)(3)(A) as the “force clause” and to
§ 924(c)(3)(B) as the (now-invalid) “residual clause.”
II.
On appeal, Walker contends that his § 924(c)(3)(B) conviction is contrary to
Johnson v. United States, 135 S. Ct. 2551 (2015), which invalidated on vagueness grounds
a similar residual clause in 18 U.S.C. § 924(e)(2)(B). After briefing and oral argument
before us, the Supreme Court granted certiorari to resolve the question of whether the
residual clause in 18 U.S.C. § 16(b) is unconstitutionally vague. Lynch v. Dimaya, 137
S. Ct. 31 (2016). Because the language in § 16(b) is identical to the language in the residual
clause before us, 18 U.S.C. § 924(c)(3)(B), we placed this case in abeyance, awaiting
resolution of Dimaya. On April 17, 2018, the Court issued its decision in Sessions v.
Dimaya, 138 S. Ct. 1204 (2018), and invalidated § 16(b) on vagueness grounds.
The Government contended, however, that the identical language in § 924(c)(3)(B)
required a different result and so we placed this case in abeyance again pending resolution
of that issue. In United States v. Simms, 914 F.3d 229 (4th Cir. 2019) (en banc), we held
§ 924(c)(3)(B) unconstitutionally vague. A few months later, the Supreme Court similarly
held § 924(c)(3)(B) unconstitutionally vague. United States v. Davis, 139 S. Ct. 2319
(2019).
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III.
With this background in mind, we now consider Walker’s challenge to his § 924(c)
conviction. Because Walker raises this claim for the first time on appeal, we review only
for plain error. To prevail, Walker must show (1) “an error” that (2) was “clear or obvious,”
(3) affects “substantial rights,” and (4) “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” United States v. Marcus, 560 U.S. 258, 262 (2010)
(alteration in Marcus) (quoting Puckett v. United States, 556 U.S. 129, 135 (2009))
(internal quotation marks omitted).
A.
1.
We turn first to § 924(c)(3)(B), the residual clause. In determining whether the
district court committed a plain error in finding Walker guilty under that clause, we
consider only whether, “at the time of appellate consideration,” “the settled law of the
Supreme Court or this circuit establishes that an error has occurred.” United States v.
Carthorne, 726 F.3d 503, 516 (4th Cir. 2013) (internal quotation marks and citations
omitted); see also Henderson v. United States, 568 U.S. 266, 279 (2013) (holding “whether
a legal question was settled or unsettled at the time of trial, it is enough that an error be
plain at the time of appellate consideration” (internal quotation marks omitted)). Given
that this court in Simms and the Supreme Court in Davis have now expressly held that
§ 924(c)(3)(B) is unconstitutionally vague, we must conclude that the district court
committed plain error in finding that Walker violated that section.
4
2.
Accordingly, we turn to the force clause, § 924(c)(3)(A). To determine whether an
offense is a crime of violence under § 924(c)’s force clause, we “look to whether the
statutory elements of the offense necessarily require the use, attempted use, or threatened
use of physical force.” Simms, 914 F.3d at 233. We use the categorical approach, looking
only at the elements of the crime and not at the particular facts in the case. Id. “When a
statute defines an offense in a way that allows for both violent and nonviolent means of
commission, that offense is not ‘categorically’ a crime of violence under the force clause.”
Id.
Kidnapping in violation of 18 U.S.C. § 1201(a) has two requirements relevant to
determining whether it is a crime of violence under the force clause: (1) the defendant
“unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away” a
person, and (2) the defendant “holds” this person. As the Government concedes, the
requirement that a defendant unlawfully seize, confine, inveigle, kidnap, abduct, or carry
away a person can be accomplished without the use of force — through inveiglement.
Appellee Br. at 13–14; see United States v. Wills, 234 F.3d 174, 177 (4th Cir. 2000) (“By
its terms, § 1201(a) criminalizes kidnappings accomplished through physical, forcible
means and also by nonphysical, nonforcible means.”); Black’s Law Dictionary (10th ed.
2014) (defining “inveigle” as “[t]o lure or entice through deceit or insincerity”). 2 In fact,
2
Kidnapping in violation of § 1201(a) therefore differs from crimes that a defendant
may commit using “force and violence or by intimidation.” See, e.g., 18 U.S.C. § 2119.
That is so because we have defined “intimidation” as requiring “a threat of bodily harm
(Continued)
5
subsequent to briefing and argument in this case, the Government has conceded elsewhere
that kidnapping does not qualify as a crime of violence under the force clause. See United
States v. Taylor, 848 F.3d 476, 491 (1st Cir. 2017) (noting “[t]he government admits that
kidnapping” under § 1201(a) “cannot” qualify as a crime of violence under the force
clause).
Here, however, the Government argues that even though physical force or the threat
of physical force is unnecessary to accomplish the first element of the crime of kidnapping,
it is necessary to accomplish the second “holding” element. We disagree. In Chatwin v.
United States, 326 U.S. 455 (1946), the Supreme Court explained that “[t]he act of holding
a kidnapped person for a proscribed purpose necessarily implies an unlawful physical or
mental restraint for an appreciable period against the person’s will and with a willful intent
so to confine the victim.” Id. at 460 (emphasis added). The Court reversed the kidnapping
conviction in that case because there was “no proof that [the defendant] or any of the other
petitioners willfully intended through force, fear or deception to confine the girl against
her desires.” Id. (emphasis added).
In United States v. Hughes, 716 F.2d 234 (4th Cir. 1983), we held that the seizure
and detention elements of Chatwin were met where the defendant induced the victim by
misrepresentation to enter his vehicle, because by “knowing that the victim’s belief as to
from the defendant’s acts.” United States v. Evans, 848 F.3d 242, 247 (4th Cir. 2017)
(emphasis added) (citation and internal quotation marks omitted) (holding carjacking in
violation of 18 U.S.C. § 2119 is a crime of violence under § 924(c)’s force clause); United
States v. McNeal, 818 F.3d 141 (4th Cir. 2016) (same, for armed bank robbery in violation
of 18 U.S.C. § 2113(a) and § 2113(d)).
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their purpose and destination is different from his actual illicit purpose, the kidnapper has
interfered with, and exercised control over, her actions.” Id. at 239. There was no evidence
in Hughes that the defendant used or threatened the victim with force or bodily harm.
Furthermore, we have repeatedly upheld jury instructions for § 1201(a) providing that “[t]o
hold means to detain, seize, or confine a person in some manner against that person’s will.”
See, e.g., United States v. Wills, 346 F.3d 476, 493 (4th Cir. 2003) (emphasis added).
Accordingly, because both requirements of 18 U.S.C. § 1201(a) may be committed
without violence, kidnapping clearly does not categorically qualify as a crime of violence
under the force clause, § 924(c)(3)(A). 3 The district court thus also clearly erred in holding
Walker violated § 924(c)(3)(A). See Marcus, 560 U.S. at 262; Carthorne, 726 F.3d at 516.
B.
Having held that the district court erred in finding Walker guilty of violating
§ 924(c), and that the error was clear at the time of appellate review, we consider the
remaining two plain error factors. In doing so, we can only conclude that the error affected
Walker’s “substantial rights as well as the fairness, integrity, and public reputation of
judicial proceedings” because Walker “cannot be guilty of violating § 924(c), and yet he
received an additional [84 months’] imprisonment for this offense.” United States v.
3
The only other court of appeals to consider this issue has agreed. But because that
court also held the residual clause of § 924(c) unconstitutionally vague, the Supreme Court
vacated the judgment and remanded for further consideration following Dimaya. See
United States v. Jenkins, 849 F.3d 390, 393–94 (7th Cir.), cert. denied, 137 S. Ct. 2280
(2017), and cert. granted, judgment vacated, 138 S. Ct. 1980 (2018).
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Fuertes, 805 F.3d 485, 501 (4th Cir. 2015). Accordingly, we vacate Walker’s § 924(c)
conviction and remand for entry of judgment of acquittal on that count and resentencing.
IV.
For the foregoing reasons, Walker’s conviction under § 924(c) is vacated and the
case is remanded for further proceedings consistent with this opinion.
VACATED AND REMANDED
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