from the United States District Court for the Southern
District of Florida D.C. Docket Nos. 0:16-cv-61156-JIC,
MARTIN, ROSENBAUM, and JILL PRYOR, Circuit Judges.
Brown appeals the district court's denial of his 28
U.S.C. § 2255 motion to vacate his conviction under 18
U.S.C. § 924(c)(1)(A) and the corresponding sentence.
The government opposed Brown's motion in the district
court. The government also objected to the magistrate
judge's Report and Recommendation recommending that
Brown's motion be granted. Now, however, because of
intervening events, the government moves jointly with Brown
for summary reversal of the district court's order. For
the reasons below, we grant that motion and remand for
Brown's Underlying Conviction
2014, a federal grand jury indicted Brown for (1) conspiracy
to commit Hobbs Act robbery, in violation of 18 U.S.C. §
1951(a) (Count 1); (2) conspiracy to possess with intent to
distribute five kilograms or more of cocaine, in violation of
21 U.S.C. § 841(b)(1)(A) (Count 2); (3) attempted
possession with intent to distribute five kilograms or more
of cocaine, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A) (Count 3); (4) conspiracy to use a firearm
during and in furtherance of a crime of violence and
drug-trafficking crime, in violation of 18 U.S.C. §
924(o) (Count 4); and (5) carrying and possessing "a
firearm during and in relation to a crime of violence and a
drug trafficking crime," in violation of 18 U.S.C.
§§ 2, 924(c)(1)(A) (Count 5). The indictment
specifies Counts 1 through 3 as predicate offenses for Count
as indicted, Count 5, brought under § 924(c)(1)(A),
invokes 18 U.S.C. § 924(c)(2), defining "drug
trafficking crime," and § 924(c)(3), defining
"crime of violence." Section 924(c)(3), in turn,
which lies at the heart of this appeal, defines "crime
of violence" as either an offense that has as
an element, at a minimum, the attempted or threatened use of
physical force, or an offense that by its nature involves a
substantial risk that physical force will be used. 18 U.S.C.
§ 924(c)(3). We commonly refer to these clauses as the
"elements clause" and the "residual
clause," respectively. See, e.g., In re
Hammoud, 931 F.3d 1032, 1040 (11th Cir. 2019).
to Brown's case, after he was indicted, Brown struck a
deal with the government. Under its terms, Brown
"agree[d] to plead guilty to Counts 1 and 5 of the
indictment." As to Count 5 specifically, the
parties' plea agreement states that "Count 5 charges
[that] the defendant did . . . knowingly use and carry a
firearm . . . during and in relation to a crime of violence,
that is, a violation of" § 1951(a), "as set
forth in Count 1[.]" Gone from this version of the
§ 924(c) charge to which Brown actually agreed to plead
guilty is any mention of the
"drug[-]trafficking[-]crime" language from the
indictment. And further, in exchange for Brown's
agreement to plead guilty to the plea agreement's
reformulated version of Count 5, the government agreed to
dismiss Counts 2 and 3, the substantive
drug-trafficking-related charges, and Count 4.
with the terms of the plea agreement, during the plea
colloquy, the district court asked Brown whether he
understood that Count 5 charged him with using "a
firearm during the commission of a crime of violence."
Notably, just like the plea agreement, the court did not
mention in its statement of the charge to which Brown was
agreeing to plead guilty Brown's alleged use of a firearm
during the commission of a drug-trafficking crime.
Brown stated that he understood the charge to which he was
pleading guilty. The government then recited the elements of
Count 5, stating that for Brown to be found guilty, he must
have (1) "committed the crime of violence charged in
Count 1" and (2) "knowingly used, carried and
possessed" a firearm "in furtherance of the
[C]ount 1 crime of violence." (emphasis added).
Brown agreed the government correctly stated the elements,
and he pled guilty. The district court accepted Brown's
plea and adjudged him guilty of conspiracy to commit Hobbs
Act robbery and "of Count 5, use of a firearm during a
commission of a crime of violence."
court later sentenced Brown to a total of 90 months'
imprisonment. That sentence consisted of 30 months'
imprisonment for Count 1, and a consecutive 60 months'
imprisonment for Count 5.
parties agree that Brown has completed the 30-month sentence
imposed for Count 1. Nevertheless, Brown remains in prison
serving his 60-month sentence for Count 5. Therefore, if
Brown and the government are correct in their view that
Brown's § 924(c) conviction can no longer stand,
Brown might be eligible for immediate release.
Brown's § 2255 Motion, Davis, and This
31, 2016, Brown filed a pro se 28 U.S.C. § 2255
motion to vacate his conviction and sentence, claiming that
conspiracy to commit Hobbs Act robbery-the crime that
underlaid his Count 5 § 924(c) conviction-failed to
qualify as a crime of violence under § 924(c)(3), in
light of Johnson v. United States, 135 S.Ct. 2551
(2015). In Johnson, the Court struck down the
residual clause of the Armed Career Criminal Act's
("ACCA") definition of "violent felony"
as unconstitutionally vague. 135 S.Ct. at 2556-58, 2563.
Since the ACCA's residual clause and §
924(c)(3)'s residual clause are very similar, Brown's
motion argued, § 924(c)(3)'s residual clause, like
the ACCA's residual clause, is likewise void for
magistrate judge recommended granting Brown's motion. But
based on our then-recently decided Ovalles v. United
States, 861 F.3d 1257 (11th Cir. 2017),  the district
judge denied the motion. In short, Ovalles held that
Johnson did not apply to or invalidate §
924(c)(3)'s residual clause. See 861 F.3d at
1263-67. So the district court rejected Brown's motion
because Johnson's ruling did not extend to
§ 924(c)(3)'s residual clause, and it concluded that
conspiracy is a crime of violence under the residual clause