United States v. Wilson ( 2022 )

FILED
Appellate Case: 20-5077 Document: 010110713728 United
Date Filed: States Court
07/20/2022 of Appeals
Page: 1
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 20, 2022
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 20-5077
v. (D.C. Nos. 4:20-CV-00165-GKF-JFJ &
4:12-CR-00197-GKF-3)
WESLEY RYAN WILSON, (N.D. Okla.)
Defendant - Appellant.
ORDER AND JUDGMENT*
Before MORITZ, SEYMOUR and BRISCOE, Circuit Judges.
Following the district court’s dismissal of Mr. Wilson’s 28 U.S.C. § 2255 motion,
we granted a certificate of appealability on a single issue: whether the district court erred
when it held that attempted Hobbs Act robbery is a crime of violence under the elements
clause of 18 U.S.C. § 924(c). Shortly thereafter, the Supreme Court granted a writ of
certiorari in United States v. Taylor, 979 F.3d 203 (4th Cir. 2020). Because it presented
the same issue, we abated Mr. Wilson’s appeal. On June 21, 2022, the Court held that
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Appellate Case: 20-5077 Document: 010110713728 Date Filed: 07/20/2022 Page: 2
attempted Hobbs Act robbery does not qualify as a “crime of violence” under § 924(c)’s
elements clause because it can be committed without the use, attempted use, or
threatened use of force. United States v. Taylor, 142 S. Ct. 2015, 2021 (2022). We
therefore remove Mr. Wilson’s motion from abeyance. However, rather than address in
the first instance what the Court’s decision means for Mr. Wilson’s § 2255 motion, we
remand his case to the district court for further consideration in light of Taylor.1
The Clerk shall issue the mandate forthwith.
Entered for the Court
Stephanie K. Seymour
Circuit Judge
1
We decline to address the government’s procedural default argument, which it
failed to raise below. See United States v. Allen, 16 F.3d 377, 379 (10th Cir. 1994).
2