Case: 17-14806    Date Filed: 11/14/2019   Page: 1 of 3


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 17-14806
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket Nos. 0:16-cv-61366-DMM,
                            0:13-cr-60006-DMM-2


KERINO BELIZAIRE,
                                                              Petitioner-Appellant,

                                      versus

UNITED STATES OF AMERICA,
                                                             Respondent-Appellee.

                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                               (November 14, 2019)

Before TJOFLAT, BRANCH and JULIE CARNES, Circuit Judges.

PER CURIAM:

      On January 31, 2013, Kerino Belizaire pled guilty to a two-count

information charging him in Count 1 with conspiracy to commit a Hobbs Act

robbery, in violation of 18 U.S.C. § 1951(a) (Count 1), and in Count 2 with using
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and carrying a firearm “during and in relation to a crime of violence,” i.e., the

conspiracy to commit Hobbs Act robbery alleged in Count 1, in violation of 18

U.S.C. § 924(c)(1)(A). The District Court sentenced Belizaire to imprisonment for

a term of 27 months on Count 1 and a consecutive term of 60 months on Count 2,

for a total term of 87 months.

       On July 29, 2013, Belizaire moved the District Court pursuant to 28 U.S.C.

§ 2255 to vacate his Count 2 sentence on the ground that the “residual” or “risk-of-

force” clause in § 924(c)(3)(B) was unconstitutional in light of Johnson v. United

States, 

(2015), which struck down the residual clause of the Armed

Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2))B)((ii). He further argued

that if § 924(c)’s residual clause was invalidated, his companion conviction for

conspiracy to commit Hobbs Act robbery would not qualify as a “crime of

violence” for § 924(c) purposes. The District Court concluded that Johnson’s

holding did not apply to § 924(c)(3)(B) and denied Belizaire’s motion. It then

granted a certificate of appealability on the issue of whether Johnson applies to

§ 924(c)(3)(B).1




       1
           Although Belizaire has apparently been released from physical custody, his § 2255
motion does not fail on “in custody” grounds because he filed it when he was still imprisoned, and
he is still subject to a four-year term of supervised release. See 28 U.S.C. § 2241(c)(3); Carafas
v. LaVallee, 

, 238 (1968); Maleng v. Cook, 

, 491-92 (1989).
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      While Belizaire’s appeal was pending, the Supreme Court invalidated the

residual clause in § 924(c)(3)(B), finding that it was unconstitutionally vague.

United States v. Davis, 

, 2336 (2019). Shortly thereafter, we held

that the Supreme Court’s ruling in Davis announced a new substantive rule of

constitutional law, made retroactive to other cases on collateral review. In re

Hammoud, 

, 1037–39 (11th Cir. 2019). We therefore vacate the

District Court’s decision and remand to the case to allow the Court to determine

whether Belizaire is entitled to relief under § 2255 in light of the above decisions.

See Antoine v. United States, — F. App’x —, No. 17-14807, 

(11th Cir. Aug. 2, 2019) (Mem.) (vacating and remanding the appeal of Belizaire’s

co-conspirator, who was charged under the same statute and presented identical

arguments on appeal).

      VACATED and REMANDED.




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