United States v. Carlos McClammy ( 2020 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-7139
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARLOS MCCLAMMY, a/k/a Carlos T. McClammy,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. Henry E. Hudson, Senior District Judge. (3:14-cr-00004-HEH-DJN-1; 3:15-
cv-00277-HEH-DJN)
Submitted: March 16, 2020 Decided: April 16, 2020
Before HARRIS and QUATTLEBAUM, Circuit Judges, and SHEDD, Senior Circuit
Judge.
Vacated and remanded by unpublished per curiam opinion.
Mary K. Martin, MARY K. MARTIN, ATTORNEY AT LAW, Hopewell, Virginia, for
Appellant. Aidan Taft Grano, Assistant United States Attorney, Alexandria, Virginia, Erik
Sean Siebert, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carlos McClammy appeals the district court’s order denying as futile his motions
to amend and denying relief on his 28 U.S.C. § 2255 (2018) motion. We granted a
certificate of appealability on the issue of whether, in light of United States v. Davis, 139
S. Ct. 2319 (2019), the district court erred in denying the motions to amend by determining
that McClammy’s challenge to his 18 U.S.C. § 924(c) (2018) conviction in Count 4 was
untimely. The Government now elects to waive its timeliness challenge to McClammy’s
claim but suggests that we can affirm on the alternative ground that amendment would be
futile because McClammy’s vagueness challenge to Count 4 is procedurally defaulted.
McClammy disputes that his claim is futile and contends that remand to the district court
is necessary for development of the record.
“[M]indful that we are a court of review, not of first view,” Lovelace v. Lee, 472
F.3d 174, 203 (4th Cir. 2006) (internal quotation marks omitted), we vacate the district
court’s order and remand for further proceedings. We express no opinion on the ultimate
resolution of McClammy’s Davis claims. 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.
VACATED AND REMANDED
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