Case: 18-10334    Date Filed: 09/25/2020   Page: 1 of 3



                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 18-10334
                          ________________________

          D.C. Docket Nos. 1:16-cv-22657-PCH; 1:06-cr-20340-PCH-2



MICHAEL HERNANDEZ,

                                                             Petitioner-Appellant,
                                      versus

UNITED STATES OF AMERICA,

                                                            Respondent-Appellee.

                          ________________________

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

                               (September 25, 2020)

Before WILLIAM PRYOR, Chief Judge, TJOFLAT and HULL, Circuit Judges.

PER CURIAM:

      Michael Hernandez appeals the denial of his successive motion to vacate his

conviction, 28 U.S.C. § 2255, for possessing a firearm during a crime of violence,

18 U.S.C. § 924(c)(1)(A). In 2006, a jury convicted Hernandez of one count of
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conspiracy to engage in hostage taking, 18 U.S.C. § 1203(a), one count of hostage

taking

carrying a firearm during a crime of violence

one count of possessing a firearm as a convicted felon

third count, carrying a firearm during a crime of violence, was

predicated on both hostage-taking counts. The district court sentenced Hernandez

to 324 months of imprisonment on the hostage-taking counts, to run concurrently

with a sentence of 120 months of imprisonment on the felon-in-possession count,

and to an additional 84 months of imprisonment on the crime-of-violence count, to

run consecutively to the three other counts, for a total term of 408 months of

imprisonment.

      After receiving authorization in our Court, see 28 U.S.C. 2255(h), in June

2016, Hernandez filed a successive motion to vacate his conviction for carrying a

firearm during a crime of violence. He contended that hostage taking did not

qualify as a crime of violence under section 924(c)(3), under either subsection (A),

the elements clause, or subsection (B), the residual clause. 18 U.S.C. § 924(c)(3).

In his view, the residual clause could not survive constitutional scrutiny under the

reasoning of Johnson v. United States, 

(2015).

      The district court denied Hernandez’s motion based on our decision in

Ovalles v. United States, 

, 1259 (11th Cir. 2017), aff’d en banc, 

(11th Cir. 2018), abrogated by United States v. Davis, 

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(2019). We later granted Hernandez a certificate of appealability as to “[w]hether

[his] companion offense for hostage taking qualified as a crime of violence under

18 U.S.C. § 924(c)(3)(B)’s residual clause.” While his appeal was pending, the

Supreme Court decided that the residual clause of section 924(c)(3)(B) is

unconstitutionally vague. 

. Davis announced a new rule of

constitutional law that applies retroactively to cases on collateral review. In re

Hammoud, 

, 1039 (11th Cir. 2019). And it dispensed with the

question for which we granted Hernandez a certificate of appealability.

      The government now concedes that hostage taking does not qualify as a

crime of violence under section 924(c)(3)(A). So, it no longer opposes vacatur of

Hernandez’s section 924(c) conviction. We therefore vacate the order denying

Hernandez’s motion and remand for the district court to reconsider the motion in

the light of Davis.

      VACATED AND REMANDED.




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