Case: 17-14249       Date Filed: 05/01/2020   Page: 1 of 3



                                                               [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                   No. 17-14249
                               Non-Argument Calendar
                             ________________________

                        D.C. Docket No. 1:16-cv-02226-ODE,
                             1:12-cr-00205-ODE-ECS-2


KIRK L. FLOYD,
a.k.a. Twin, a.k.a.
Kirk Lorin Floyd,

                                                                Petitioner-Appellant,

                                        versus

UNITED STATES OF AMERICA,

                                                               Respondent-Appellee.

                             ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                            ________________________

                                    (May 1, 2020)

Before ED CARNES, Chief Judge, GRANT, and LUCK, Circuit Judges.

PER CURIAM:
               Case: 17-14249     Date Filed: 05/01/2020   Page: 2 of 3



      Kirk Floyd is a federal prisoner serving a total 300-month sentence for

multiple convictions, including conspiracy to commit Hobbs Act robbery, in

violation of 18 U.S.C. § 1951(a), and brandishing a firearm in furtherance of a

crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(i) and (B)(i) and § 2.

Floyd’s § 924(c) conviction was predicated on conspiracy to commit Hobbs Act

robbery. He appeals the district court’s denial of his 28 U.S.C. § 2255 motion to

vacate, arguing that his § 924(c) conviction is no longer constitutional in light of

United States v. Davis, 

(2019), and Brown v. United States,

(11th Cir. 2019). The government opposed his § 2255 motion

before the district court, but now agrees with Floyd and asks us to vacate and

remand for a full resentencing. We agree with the parties and reverse the district

court’s denial of Floyd’s § 2255 motion.

      In reviewing a district court’s denial of a § 2255 motion, we review de novo

the court’s legal conclusions and its factual findings for clear error. 

. Section 924(c) provides for a mandatory consecutive sentence

for any defendant who uses a firearm during a crime of violence or drug-trafficking

crime. 18 U.S.C. § 924(c)(l). A “crime of violence” is an offense that is a felony

and: (A) has as an element the use, attempted use, or threatened use of physical

force against the person or property of another, or (B) by its nature, involves a

substantial risk that physical force against the person or property of another may be


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used in the course of committing the offense.

We commonly refer

to § 924(c)(3)(A) as the “elements clause” and § 924(c)(3)(B) as the “residual

clause.” 

.

      In Davis, the Supreme Court struck down § 924(c)’s residual clause as

unconstitutionally 

, 2336. We have held that Davis

announced a new rule of constitutional law that applies retroactively to cases, like

Floyd’s, on collateral review. In re Hammoud, 

, 1037–39 (11th Cir.

2019). We have also held, in Brown, that conspiracy to commit Hobbs Act

robbery is not categorically a crime of violence under § 924(c)’s elements clause

because the statutory elements of Hobbs Act conspiracy do not require the

existence of a threat or attempt to use 

–76.

      Floyd’s conviction for conspiracy to commit Hobbs Act robbery was not a

crime of violence under either § 924(c)’s elements clause, in light of Brown, or

§ 924(c)’s residual clause, in light of Davis. Because there were no other predicate

offenses for his § 924(c) conviction, that conviction must be vacated. We therefore

reverse the district court’s denial of Floyd’s § 2255 motion and remand for

resentencing.

      REVERSED AND REMANDED.




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