Case: 17-12040 Date Filed: 03/30/2020 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-12040
Non-Argument Calendar
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D.C. Docket Nos. 1:16-cv-22538-KMM,
1:13-cr-20524-KMM-2
LEON ESCOURSE-WESTBROOK,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 30, 2020)
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before WILSON, BRANCH, and ANDERSON, Circuit Judges.
PER CURIAM:
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Leon Escourse-Westbrook is a federal prisoner serving a total 114-month
sentence, consisting of 30 months for conspiracy to commit Hobbs Act robbery in
violation of
18 U.S.C. § 1951(a) (Count One), and a consecutive 84 months for
brandishing a firearm in furtherance of a crime of violence—solely predicated on
his Hobbs Act conspiracy conviction—in violation of
18 U.S.C. § 924(c)(1)(A)(ii)
(Count Three). 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, 588 U.S. __,
139 S. Ct. 2319 (2019), and Brown v.
United States,
942 F.3d 1069 (11th Cir. 2019). Although the government opposed
his § 2255 motion before the district court, it now agrees with Escourse-Westbrook
and calls on us to vacate and remand for a full resentencing.
In reviewing a district court’s denial of a § 2255 motion, we review the
court’s legal conclusions de novo and its findings of fact for clear error. Brown,
942 F.3d at 1072. A felony is a “crime of violence” under § 924(c) if it:
(A) has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force
against the person or property of another may be used in the course of
committing the offense.
18 U.S.C. § 924(c)(3). We commonly refer to § 924(c)(3)(A) as the “elements
clause” and to § 924(c)(3)(B) as the “residual clause.” Brown, 942 F.3d at 1071.
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In Davis, the Supreme Court struck down § 924(c)’s residual clause as
unconstitutionally vague.
139 S. Ct. at 2323–24, 2336. We held that Davis
announced a new rule of constitutional law that applies retroactively to cases on
collateral review. In re Hammoud,
931 F.3d 1032, 1038–39 (11th Cir. 2019) (per
curiam). We subsequently 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 necessitate the
existence of a threat or an attempt to use force. 942 F.3d at 1075–76.
In light of Davis and Brown—and as the government concedes—Escourse-
Westbrook’s conviction for conspiracy to commit Hobbs Act robbery was not a
crime of violence under either the elements clause or residual clause of § 924(c).
Because there were no other predicate offenses for his § 924(c) conviction, it
cannot stand. We therefore reverse the district court’s denial of Escourse-
Westbrook’s § 2255 motion and remand to the district court for proceedings
consistent with this opinion.
REVERSED AND REMANDED.
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