United States v. Carreon

Summary

In this unpublished Fifth Circuit case, the court granted habeas relief under 28 U.S.C. § 2255, vacating a defendant's 18 U.S.C. § 924(c) conviction for using a firearm during a kidnapping, because kidnapping no longer qualifies as a crime of violence after *Davis v. United States*, 139 S. Ct. 2319 (2019), which held § 924(c)(3)(B)'s residual clause unconstitutional. The government conceded both that *Davis* rendered the petition timely under 28 U.S.C. § 2244(d)(2) and that kidnapping cannot satisfy § 924(c)(3)(A)'s elements clause. The court also vacated the kidnapping sentence and remanded for resentencing, noting the district court may have imposed a lower kidnapping sentence because of the now-invalidated consecutive § 924(c) sentence.

Holdings

1. The government waived its timeliness defense by affirmative concession, so the motion is timely.
2. Following Davis, which held that § 924(c)(3)(B)'s residual clause is unconstitutional, kidnapping cannot be defined as a crime of violence under the elements clause, so the § 924(c) conviction must be vacated.

Questions Presented

1. Whether Carreon's § 2255 motion was filed timely.
2. Whether Carreon's § 924(c) conviction for using a firearm during a kidnapping is constitutionally sound after Davis v. United States, 139 S. Ct. 2319 (2019), which held that § 924(c)(3)(B)'s residual clause is void for vagueness, and whether kidnapping qualifies as a crime of violence under the elements clause, § 924(c)(3)(A).

Disposition

vacated_and_remanded