UNPUBLISHED

                        UNITED STATES COURT OF APPEALS
                            FOR THE FOURTH CIRCUIT


                                        No. 15-4281


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

BRADLEY CAMPBELL,

                     Defendant - Appellant.



Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. James C. Fox, Senior District Judge. (5:14-cr-00098-F-1)


Submitted: September 25, 2019                                Decided: November 8, 2019


Before KING and RICHARDSON, Circuit Judges, and HAMILTON, Senior Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Chief Appellate
Attorney, Jennifer C. Leisten, Research & Writing Attorney, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. John Stuart Bruce, Acting
United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, Phillip
A. Rubin, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Bradley Campbell appeals his jury convictions for kidnapping, in violation of 18

U.S.C. § 1201(a)(1) (2012) (Count 1), discharging a firearm in furtherance of a crime of

violence, in violation of 18 U.S.C. § 924(c)(1)(A) (2012) (Count 2), and being a felon in

possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1), 924 (2012)

(Count 3). Campbell contends that he is innocent of Count 2 because kidnapping is not a

crime of violence for purposes of § 924(c). He also asserts that the evidence was not

sufficient to convict him of Count 1 because the Government failed to show that he used

an instrumentality of interstate commerce in furtherance of the kidnapping. We affirm in

part, vacate in part, and remand for resentencing.

       Because Campbell did not argue in the district court that kidnapping fails to qualify

as a crime of violence, we review his claim for plain error. See United States v. Walker,

, 377-78 (4th Cir. 2019). To prevail, Campbell “must show (1) an error that

(2) was clear or obvious, (3) affects substantial rights, and (4) seriously affects the fairness,

integrity or public reputation of judicial proceedings.” 

(alteration omitted)

(internal quotation marks omitted).

       Section 924(c)(3) provides two definitions of the term “crime of violence” — the

force clause in § 924(c)(3)(A) and the residual clause in § 924(c)(3)(B). In United States

v. Davis, 

, 2336 (2019), the Supreme Court concluded that the residual

clause in § 924(c)(3)(B) was unconstitutionally vague. And in Walker, we determined that

federal kidnapping did not qualify as a crime of violence under the force clause in

§ 

. The parties thus agree that Count 2 should be vacated

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because federal kidnapping does not qualify as a crime of violence under § 924(c)(3) in

light of Davis and Walker. We also agree. We therefore vacate Campbell’s § 924(c)

conviction and remand for resentencing. See 

       Next, we review de novo the sufficiency of the evidence supporting a conviction.

See United States v. Wolf, 

, 194 (4th Cir. 2017). A defendant challenging the

sufficiency of the evidence supporting a conviction carries “a heavy burden.” 

marks omitted). We will uphold a conviction if, “view[ing] the evidence in the

light most favorable to the government . . . [,] any rational trier of fact could have found

the essential elements of the crime charged beyond a reasonable doubt.” United States v.

Barefoot, 

, 233 (4th Cir. 2014) (internal quotation marks omitted). To obtain

a conviction for federal kidnapping, the Government must prove, as relevant here, that the

defendant “unlawfully seize[d], confine[d], . . . or carrie[d] away” a person and that the

person was held “for ransom or reward or otherwise.” 18 U.S.C. § 1201(a). The

Government must also prove that the defendant used “any means, facility, or

instrumentality of interstate or foreign commerce in committing or in furtherance of the

commission of the offense.” 

       We conclude that the evidence was sufficient to prove that Campbell used an

instrumentality of interstate commerce in furtherance of the kidnapping offense. The

parties do not contest that Campbell used a cell phone and that cell phones are

instrumentalities of interstate commerce. Campbell argues, however, that his use of a cell

phone was merely incidental to the kidnapping because the kidnapping had already been

completed when he used the cell phone. He therefore contends that his use of the cell

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phone was not “in furtherance of” the kidnapping. But Campbell’s use of a cell phone

directly furthered the kidnapping. In particular, Campbell used a cell phone numerous

times in communicating with the police and others. And he even used the cell phone during

the kidnapping to ask for marijuana in exchange for surrendering and allowing the hostages

to leave unharmed. These demands were clearly in furtherance of the kidnapping because

they constitute demands for a ransom as described in § 1201(a). Because Campbell clearly

used an instrumentality of interstate commerce in furtherance of the kidnapping, sufficient

evidence supports his kidnapping conviction.

       Accordingly, we affirm the judgment of the district court in part, vacate the

judgment in part, and remand for resentencing. We dispense with oral argument because

the facts and legal contentions are adequately presented in the materials before this court

and argument would not aid the decisional process.

                                                                    AFFIRMED IN PART,
                                                                     VACATED IN PART,
                                                                      AND REMANDED




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