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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-12431
Non-Argument Calendar
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D.C. Docket No. 1:16-cv-02716-WBH; 1:08-cr-00314-WBH-RGV-2
GERARDO SOLORIO REYEZ,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
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(February 18, 2020)
Before ED CARNES, Chief Judge, WILSON, and ANDERSON, Circuit Judges.
PER CURIAM:
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In 2009 Gerardo Reyez pleaded guilty to three federal crimes: (1) hostage
taking in violation of 18 U.S.C. § 1203, (2) possession of firearms in furtherance of
a crime of violence (the hostage taking) under 18 U.S.C. § 924(c), and
(3) conspiracy to possess with the intent to distribute cocaine. He was sentenced to
a total of 319 months in prison.
He later filed a § 2255 motion in the district court contending that hostage
taking was a crime of violence under only the residual clause, § 924(c)(3)(B),
which he claimed was unconstitutionally vague under Johnson v. United States,
135 S. Ct. 2551, 2560 (2015). The district court found that § 924(c)(3)(B) was not
unconstitutionally vague and denied his motion. But in United States v. Davis, 139
S. Ct. 2319 (2019), which was decided after the district court denied Reyez’s
§ 2255 motion, the Supreme Court held that § 924(c)(3)(B) was, in fact,
unconstitutionally vague. This is his appeal.
When reviewing the court’s denial of a § 2255 motion, we review de novo
questions of law. Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004).
Section 924(c) criminalizes the use or carrying of a firearm in furtherance of
a crime of violence or drug trafficking crime. “Crime of violence” is defined in
two subsections:
(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
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the offense.
18 U.S.C. § 924(c)(3)(A), (B).
Subsection (B) of § 924(c)(3) is known as the residual clause, and it was
held unconstitutionally vague in Davis. Davis announced “a new rule of
constitutional law, made retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable.” In re Hammoud, 931 F.3d 1032, 1037
(11th Cir. 2019). We have emphasized that the district court should, in the first
instance, review the merits of such a claim. Id. at 1040–41. In the district court,
the § 2255 movant bears “the burden of showing that he is actually entitled to relief
on his Davis claim, meaning he [has] to show that his § 924(c) conviction resulted
from application of solely the residual clause.” Id.; Beeman v. United States, 871
F.3d 1215, 1222–25 (11th Cir. 2017).
Subsection (A) is known as the elements clause. Under the elements clause,
courts must apply the categorical approach, looking only to the elements of the
predicate offense and not to the defendant’s conduct. United States v. St. Hubert,
909 F.3d 335, 348 (11th Cir. 2018). That approach presumes that the conviction
relies on “the least of the acts criminalized,” and then requires a determination
about whether even those acts qualify as crimes of violence. Id. at 349 (quotation
marks and brackets omitted).
The statute that criminalizes hostage taking provides:
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Whoever . . . seizes or detains and threatens to kill, to injure, or to
continue to detain another person in order to compel a third person or
a governmental organization to do or abstain from doing any act as an
explicit or implicit condition for the release of the person detained, or
attempts or conspires to do so . . . .
18 U.S.C. § 1203(a). This court has not addressed whether hostage taking qualifies
as a crime of violence under the § 924(c)(3)(A) elements clause or whether it could
be accomplished without force or violence.
Reyez contends that hostage taking under § 1203(a) does not amount to a
crime of violence under the elements clause. He argues that we should vacate his
conviction and remand for resentencing. The government agrees.
But because Davis was decided while his appeal was pending, the district
court never considered Davis’ impact upon Reyez’s § 2255 claims. And while the
district court primarily addressed the residual clause, it never stated whether Reyez
had shown that his § 924(c) conviction relied solely on the residual clause. We are
not bound by the government’s concession that hostage taking is not a crime of
violence under the elements clause. See Bourdon v. United States Dep’t of
Homeland Sec. (DHS), 940 F.3d 537, 547 n.6 (11th Cir. 2019). We therefore
vacate the district court’s denial of Reyez’s § 2255 motion and remand for that
court to consider in the first instance if Reyez is entitled to relief under § 2255 in
light of Davis.1
1
Reyez also moved to have this appeal expedited and the government consented. That
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VACATED AND REMANDED.
motion is DENIED AS MOOT.
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