UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. AUGUSTUS SANFORD, Defendant - Appellant. No. 17-1338 (D.C. Nos. 1:16-CV-00804-REB and 1:11-CR-00303-REB-3) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT AND ORDER GRANTING A CERTIFICATE OF APPEALABILITY *

________________ _________________ Before BRISCOE , McHUGH , and MORITZ , Circuit Judges.

________________ _________________ Defendant Augustus Sanford was c onvicted by a jury of six crimi nal counts, including one count of possessing a firearm during a crime of v iolence, in violation of § 18 U.S.C. 924(c), and was sente nced to a total term of impris onment of 384 months, which included an 84-month cons ecutive sentence for the § 924(c ) conviction. Sanford’s convictions and sentence were a ffirmed on direct appeal. Sanfo rd then filed a 28 U.S.C. § 2255 motion seeking relief from his § 924(c) conviction and s entence. The district

* After examining the briefs and appellate record, this panel ha s determined unanimously that oral argument wo uld not materially assist in t he determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is t herefore ordered submitted without oral argument . This order and judgment is no t binding precedent, except under the doctrines of law of the case, res judicata, an d collateral estoppel. It may be cited, however, for its persuas ive value consistent with Fed . R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### August 14, 2019
Elisabeth A. Shumaker Clerk of Court2 court denied Sanford’s motion an d also denied him a certificate of appealability (COA) and the right to pro ceed in forma pauperis (IFP) on appeal. Sa nford filed a timely appeal and, most recently, filed a moti on for summary disposition, arg uing that the Supreme Court’s recent decision in Unite d States v. Davis, 139 S. Ct. 2 319 (2019), definitively resolves this case. For the reas ons that follow, we grant Sanf ord’s motion for summary disposition, grant him a COA, aut horize him to proceed IFP, rev erse the district court’s judgment, and remand with directi ons to grant Sanford’s § 2255 motion challenging his § 924(c) conviction and sentence.
I In August 2011, a federal grand jury indicted Sanford on four c ounts of kidnapping, in violation of 18 U.S.C. §§ 1201(a)(1) and 3559(f) (2), one count of conspiracy to kidnap, in viola tion of 18 U.S.C . § 1201(c), and one count of possession of a firearm during a crime of viole nce, in violation of 18 U.S.C. § 924(c). The case proceeded to trial in June 2012 . The jury fou nd Sanford guilty on all six counts. In February 2013, Sanford was sentenced to a total term of impriso nment of 384 months. That included concurrent senten ces of 300 months on the first f ive counts, and a consecutive sentence of 84 months on the § 924(c) conviction. Sanford filed a direct appeal. In April 2014, this court issue d an opinion affirming the judgment of the district c ourt. United States v. Morgan, 7 48 F.3d 1024 (10th Cir. 2014). Approximately two years later, i n April 2016, Sanford filed a p ro se motion to vacate, set aside or correct his sentence pursuant to § 2255. Sanford asserted two3 grounds for relief in h is § 2255 motion: (1) that his sentences for conspiracy to kidnap and possession of a firearm during a crime of violence should b e vacated in light of the Supreme Court’s decision in Jo hnson v. United States, 135 S. Ct . 2551 (2015); and (2) that he was entitled under 18 U.S. C. § 3585(b)(2) to credit for the time he spent in state prison in conjunction with his federal sentence. Shortly after Sanford filed his § 2255 motion, the district cou rt issued an order dismissing the second claim f or relief without prejudice, and o rdering the government to file a response to the first clai m. In May 2016, the governmen t filed a response opposing Sanford’s first claim for relief. I n July 2016, the Federal Pu blic Defender’s Office, which had entered an appearance on San ford’s behalf, filed a reply br ief clarifying that Sanford’s first claim for relie f challenged only his § 924(c) c onviction. In July 2017, the district court issued an order d enying Sanfor d’s first claim for relief. The district court reject ed Sanford’s “conten[tion] th at the rule established in Johnson applie[d] equally to th e language of § 924(c)(3)(B).” ROA, Vol. 1 at 78. The district court noted that “Johns on d[id] not address the langua ge of § 924(c)(3)(B),” and instead “addresse[d] the different language used in § 924(e)(2) (B)(ii).” Id. at 79. The district court also concluded “t hat the language of § 924(c)(3) (B) is more narrow than the language of § 924(e), the languag e at issue in Johnson.” Id. Thus, the district court concluded that Sanford, “in his proposed challenge to the langu age of § 924(c)(3)(B), [wa]s not asserting the right new ly recognized in Johnson.” Id . at 79–80. Sanford timely appealed from the district court’s order. In Oc tober 2017, this court granted Sanford’s unoppose d motion to abate the appeal pe nding issuance of a final4 decision in United States v. Morgan, No. 17-1172, an earlier an d similar appeal filed by one of Sanford’s codefendants. O n June 27, 2019, Sanford filed a status report noting that “[o]n June 24, 2019, the Supreme Court ruled in United Sta tes v. Davis . . . that § 924(c)’s residual clause is unc onstitutionally vague.” Statu s Report at 1. Sanford in turn “suggest[ed] that abatemen t [wa]s no longer appropriate gi ven the ruling in Davis,” and he expressed his “view that Davis definitively resolves thi s case.” Id. On June 28, 2019, the clerk of this court lifted the abatement and directed the district court to transmit the record. On July 11, 2019, San ford filed a motion for summary dispositio n seeking “three related forms of relief”: (1) an order granting him leave to pr oceed in forma pauperis on appeal; (2) an order granting him a certificate of appealabilit y (COA); and (3) an order dispensing with full briefing and summarily reversing the distr ict court’s judgment. Mot. for Summary Disposition at 1. On July 30, 2019, the government filed a response to Sanford’s motion for summary disposition. The govern ment conceded in its response “ that in the interests of justice it is appropriate to gran t both the IFP and COA request s.” Response at 1. The government also “agree[d] that under the particular circumstanc es of this case, summary reversal and remand is appropriate , but only because the govern ment has chosen to waive otherwise valid procedural bars.” Id. at 2.
II In Davis, the Supreme Court hel d that the language of § 924(c) (3)(B)’s residual clause “provides no reliable way to determine which offenses qu alify as crimes of5 violence and thus is unconstitu tionally vague.” 139 S. Ct. at 2324. That holding is critical for purposes of the ins tant appeal. Bot h Sanford and the government agree that the predicate offenses for Sanford’s § 924(c) conviction—kidnap ping and conspiracy to kidnap—could only qualify as “cr imes of violence” under § 924(c )(3)(B)’s residual clause. Thus, as the parties al so agree, it is clear that, in light of Davis, Sanford’s § 924(c) conviction and sentence cannot stand. We therefore re verse the judgment of the district court and remand with d irections to grant Sanford’s § 2255 motion to the extent that it challenges his convictio n and sentence under § 924(c). Whether or not such relief necessitates a full resentencing is left for the district court to determine on remand.
III We hereby GRANT Sanfo rd’s motion for summa ry disposition, GRAN T his request for COA, GRANT his request for leave to proceed IFP on appeal, REVERSE the district court’s judgment, and REMAND for further proceedings c onsistent with this order. The Clerk is directed to i ssue the mandate forthwith.

Entered for the Court
Mary Beck Briscoe Circuit Judge