1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

v. Case Nos. 4:99cr71-RH/HTC

4:20cv82-RH/HTC

LAWRENCE LOMBARDI,

Defendant.

 /

UNITED STATES’ RESPONSE TO DEFENDANT’S SUCCESSIVE 

MOTION TO VACATE UNDER 28 U.S.C. § 2255

Defendant Lawrence Lombardi has filed a successive motion to vacate 

under 28 U.S.C. § 2255, seeking to vacate his convictions under 18 U.S.C. § 924(c) 

for possessing a firearm in furtherance of a crime of violence, namely maliciously 

damaging property by use of an explosive. Doc. 239. In United States v. Davis, 139 

S. Ct. 2319 (2019), the Supreme Court held that the residual clause in § 924(c)(3)(B) 

is unconstitutionally vague. In light of Davis, Lombardi contends that his § 924(c) 

convictions and consecutive sentences must be vacated. While the government 

agrees that malicious damage to property offenses under 18 U.S.C. § 844(i) cannot 

qualify as “crime of violence” predicates for § 924(c) offenses after Davis, 

Lombardi’s successive § 2255 motion must be dismissed because he has not shown 

that his motion relies on a new rule of constitutional law, as required by 

§ 2244(b)(4) and § 2255(h)(2). 
2

I. Background

A. Lombardi’s Conviction and Subsequent Proceedings

On August 31, 1999, at approximately 12:45 p.m., a pipe bomb exploded in 

the first floor men’s restroom at Lee Hall on the campus of Florida Agricultural 

and Mechanical University (“FAMU”), a historically black university in 

Tallahassee, Florida. PSR ¶ 11. On September 22, 1999, at approximately 10:30 

a.m., a second pipe bomb exploded on the second floor men’s restroom within 

FAMU’s Perry-Paige Building. PSR ¶ 13. Both bathrooms sustained damage in 

the explosions. Doc. 117-1 at 264-65; Doc. 118-1 at 28-30. No one was injured in 

either bomb, though the second bomb came close to injuring a FAMU employee 

who was just outside the bathroom door when the bomb went off. Doc. 117-1 at 

274-75. Anonymous phone calls made by the bomber to local media figures 

indicated that the bombs were motivated by racial animus. PSR ¶¶ 13, 15, 17, 20. 

Through diligent investigative work, Lombardi was identified as the 

bombing suspect. On November 20, 1999, a grand jury sitting in the Northern 

District of Florida issued a superseding indictment charging Lombardi with six 

counts related to the bombings: 

− Counts One and Three: knowingly, intentionally, and maliciously 

damaging and attempting to damage by means of an explosive Lee Hall 

(Count One) and the Perry-Paige Building (Count Three), in violation of 18 
3

U.S.C. § 844(i); 

− Counts Two and Four: knowingly using and carrying a destructive device, 

commonly known as a “pipe bomb,” during and in relation to a crime of

violence, to wit, damaging and attempting to damage a building by means 

of an explosive, as charged in Counts One and Three of the indictment, in 

violation of 18 U.S.C. § 924(c); and 

− Counts Five and Six: knowingly, willfully and by force and threat of force, 

that is, by placing and causing to be placed a destructive device, commonly 

known as a “pipe bomb,” in Lee Hall (Count Five) and the Perry-Paige 

Building (Count Six), buildings on the campus of FAMU, a public school 

and college, did injure, intimidate, interfere with and did attempt to injure, 

intimidate and interfere with students because of their race and color and 

because such students had enrolled in and attended and were enrolling and 

attending the Florida Agricultural and Mechanical University, and such 

included the use, attempted use and threatened use of explosives, in 

violation of 18 U.S.C. § 245(b)(2)(A). 

Doc. 87. 

Lombardi went to trial, where his primary defense was that the government’s 

evidence failed to prove beyond a reasonable doubt that he was the bomber. See 

generally Doc. 117-1 at 223-243; Doc. 122-1 at 42-85. Lombardi never argued at 
4

trial that the maliciously damaging property offenses charged in Counts One and 

Three of the indictment did not constitute “crimes of violence,” as charged in 

Counts Two and Four. See Doc. 120 at 1136-37, 1160, 1231. With respect to 

Counts Two and Four, the Court’s instructions to the jury did not define “crime of 

violence.” See Doc. 88 at 13-15. Rather, the instruction tasked the jury with 

deciding whether Lombardi had used and carried a pipe bomb during and in 

relation to the maliciously damaging property offenses charged in Counts One and 

Three. Id. See also Doc. 120-1 at 257-264 (this Court’s charging conference with 

the parties). The jury convicted Lombardi of all counts. 

The penalty range for Counts One and Three was 5 to 20 years’ 

imprisonment. PSR ¶ 135. The maximum term of imprisonment for Counts Five 

and Six was 10 years. PSR ¶ 138. Count Two mandated a consecutive term of at 

least 30 years’ imprisonment. PSR ¶ 136. Count Four mandated a consecutive term 

of life imprisonment. PSR ¶ 137. 

During sentencing, this Court determined that Lombardi’s guideline range 

for Counts One, Three, Five, and Six was 87 to 108 months.1 Doc. 124 at 20. 

Lombardi challenged Count Four’s mandatory life sentence, arguing that a proper 

interpretation of the statute resulted in another mandatory consecutive term of 30 

 1 This was based on a total offense level 29 and a criminal history category of I. Doc. 124 at 20. 

Lombardi objected to the PSR’s calculation of the guideline range, and that objection was 

partially sustained at sentencing. See id. at 7-19. 
5

years’ imprisonment instead of life. Id. at 2-8, 31. Once again, Lombardi did not 

dispute that the offenses charged in Counts One and Three of the indictment 

qualified as crimes of violence for purposes of Counts Two and Four. See id. This 

Court overruled Lombardi’s objection to Count Four’s sentence, id. at 7-8, and 

sentenced Lombardi to concurrent terms of 108 months’ imprisonment on Counts 

One, Three, Five, and Six, with a consecutive 30 years’ on Count Two, and a 

consecutive term of life on Count Four, id. at 36, for a total term of life plus 39 

years. 

Lombardi appealed his convictions, arguing that this Court erred in (1) 

denying his pretrial motion to suppress evidence and (2) admitting evidence of his 

racial animus towards black people during trial. See Doc. 137. The Eleventh Circuit 

affirmed, id., and the Supreme Court denied certiorari, see Doc. 143 at 36. 

In October of 2002, Lombardi filed a counseled motion to vacate his 

conviction and sentence under 28 U.S.C. § 2255. Docs. 143, 144. The motion 

raised numerous claims of relief but made no claim that the offenses charged in 

Counts One and Three were not crimes of violence for purposes of the § 924(c) 

offenses charged in Counts Two and Four. See generally Doc. 144. Lombardi also 

filed a pro se motion for a new trial, alleging the government had failed to turn over 

exculpatory evidence. Doc. 155. This Court denied both motions. Doc. 159. Both 

this Court and the Eleventh Circuit denied Lombardi’s motion to appeal the denial 
6

of his § 2255 motion, Docs. 165, 170, 182, and the denial of his motion for a new 

trial was affirmed on appeal, Doc. 188. In November of 2005, Lombardi filed 

another motion to vacate his conviction and sentence under § 2255. Doc. 190. This 

Court denied the motion as successive. Doc. 198. And once again, both this Court

and the Eleventh Circuit denied a certificate of appealability. Docs. 204, 210. 

B. The Invalidation of § 924(c)’s Residual Clause & 

Authorization to File a Successive § 2255 Motion

Lombardi’s § 924(c) convictions in Counts Two and Four were predicated 

on the § 844(i) offenses charged in Counts One and Three, which alleged that 

Lombardi did “knowingly, intentionally, and maliciously damage and attempting 

to damage by means of an explosive” FAMU’s Lee Hall and the Perry-Paige 

Building, respectively. Doc. 87 at 1-3. To qualify as a crime of violence under 

§ 924(c), a conviction for maliciously damaging property under § 844(i) must either

(A) have “as an element the use, attempted use, or threatened use of physical force 

against the person or property of another, or (B) by its nature, “involve[] 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). The former 

definition is commonly known as the “elements” or “force” clause, while the latter 

is commonly known as the “residual” or “risk-of-force” clause. See United States v.

St. Hubert, 909 F.3d 335, 344 (11th Cir. 2018). This response refers to them as the 

“elements” and “residual” clauses, respectively. 
7

On June 24, 2019, following in the footsteps of Johnson and Dimaya,

2 the 

Supreme Court held in United States v. Davis, 139 S. Ct. 2319 (2019), that

§ 924(c)(3)(B)’s residual clause is unconstitutionally vague. The Davis Court 

rejected the Eleventh Circuit’s conduct-based interpretation of § 924(c)(3)(B). Id. at 

2325 & n.2, 2332-33. Accordingly, after Davis, a conviction can only qualify as a 

“crime of violence” for § 924(c) purposes if it has “as an element the use, attempted 

use, or threatened use of physical force against the person or property of another.” 

18 U.S.C. § 924(c)(3)(A). 

In the months following Davis, Lombardi sought permission from the 

Eleventh Circuit to file a successive motion to vacate under § 2255 challenging his 

§ 924(c) convictions. See Doc. 221; 28 U.S.C. § 2255(h)(2). The Eleventh Circuit 

granted Lombardi’s application, observing that no precedent from it or the 

Supreme Court establishes whether a conviction for maliciously damaging 

property with an explosive device categorically qualifies as a crime of violence 

under § 924(c)(3)(A)’s elements clause. Doc. 221 at 4. Accordingly, the panel 

concluded that Lombardi made a prima facie showing that “his § 924(c) convictions 

may be unconstitutional under Davis, as he potentially was convicted under the 

now-invalid residual clause of § 924(c)(3)(B).” Id. Importantly, the court’s order 

 2 Johnson v. United States, 135 S. Ct. 2551 (2015) (holding that the ACCA’s residual clause is 

unconstitutionally vague); Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (holding that the “nearly 

identical” residual clause language in § 16(b) is unconstitutionally vague).
8

emphasized that this Court must still decide de novo whether Lombardi’s claim 

complies with the requirements established in § 2255(h). Id. at 4-5. 

Having received the Eleventh Circuit’s authorization, Lombardi filed a 

counseled motion to vacate his § 924(c) convictions on Counts Two and Four, 

raising two related arguments. Doc. 229. First, Lombardi argues that his 

convictions for maliciously damaging property with an explosive do not qualify as 

crimes of violence under § 924(c)(3)(A) because they do not have an element of 

force against the person or property of another. Doc. 229-1 at 15, 17, 20-21. 

Second, Lombardi notes that his predicate convictions cannot qualify under 

§ 924(c)(3)(B)’s residual clause, which was invalided by Davis. Id. at 16, 21. 

Accordingly, Lombardi concludes that his two § 924(c) convictions—and their 

mandatory consecutive sentences—must be vacated. Doc. 229 at 5-6. Because they 

are “linked” to Counts Two and Four, Lombardi relatedly contends that his two 

convictions for maliciously damaging property with an explosive device (Counts 

One and Three) must be vacated in light of Davis. Id.; Doc. 229-1 at 20-21. 

II. Lombardi’s Successive § 2255 Motion Must be Dismissed

Davis held that the residual clause in § 924(c)(3)(B) is unconstitutionally 

vague. 139 S. Ct. at 2336. In doing so, it created a new substantive rule that has 

been made retroactively applicable by the Supreme Court. In re Hammoud, 931 F.3d 

1032, 1038-39 (11th Cir. 2019). Thus, Lombardi’s successive motion, filed less than 
9

year after Davis, articulates a timely Davis claim. See 28 U.S.C. § 2255(f)(3) 

(establishing that a claim is timely if it is filed within one year of the date on which 

a new right was recognized by the Supreme Court and made retroactively 

applicable to cases on collateral review). Moreover, the government agrees that 

convictions under 18 U.S.C. § 844(i) do not qualify as crimes of violence under 

§ 924(c)(3)(A)’s elements clause because the statute is indivisible and does not 

categorically require the use of force against the person or property of another.

3 See 

United States v. Salas, 889 F.3d 681, 684 (10th Cir. 2018) (accepting the parties’ 

agreement that an § 844(i) conviction does not qualify under the elements clause 

because it “does not require, as an element, the use of force against the property 

‘of another’; for example, § 844(i) may apply to a person who destroys his or her 

own property”).While there can be no doubt that Lombardi was charged with and 

convicted of using force against the property of another, see Doc. 87 at 1-3, Doc. 88 

at 13-15, Doc. 89, facts are unfortunately irrelevant to the categorical approach.4

 3 Section 844(i) provides:

Whoever maliciously damages or destroys, or attempts to damage or destroy, by 

means of fire or an explosive, any building, vehicle, or other real or personal 

property used in interstate or foreign commerce or in any activity 

affecting interstate or foreign commerce shall be imprisoned for not less than 5 

years and not more than 20 years, fined under this title, or both[.]

18 U.S.C. § 844(i) (emphasis added). “[W]hen Congress uses the word ‘any’ without language 

limiting the breadth of that word,” as it did in § 844(i), “‘any’ means all.” Regions Bank v. Legal 

Outsource PA, 936 F.3d 1184, 1194 (11th Cir. 2019). 

4 While the facts don’t matter, the elements of a conviction do, and the Eleventh Circuit has long 

held that the government can narrow the elements of an offense by the way it charges the offense 
10

See United States v. St. Hubert, 909 F.d 335, 348 (11th Cir. 2018), abrogated in part on 

other grounds by Davis, 139 S. Ct. at 2323, 2336. 

Nonetheless, Lombardi’s successive motion must be dismissed. A defendant 

pursuing a successive collateral claim bears the burden of establishing that the 

claim is based on “a new rule of constitutional law.” 28 U.S.C. § 2255(h)(2). 

Because Lombardi has not satisfied this burden, his Davis claim must be dismissed. 

Id. at § 2244(b)(4). 

A. 28 U.S.C. §§ 2244(b) & 2255(h)’s Standard for Successive Claims

As the Eleventh Circuit has previously recognized, a “successive motion 

does not stand in the place of a first § 2255 motion, allowing the movant to raise 

any claim that would have been cognizable in an original § 2255 proceeding.” In 

re Cannon, 931 F.3d 1236, 1244 (11th Cir. 2019) (quoting Solomon v. United States, 

911 F.3d 1356, 1360 (11th Cir.)) abrogated on other grounds by Davis, 139 S. Ct. 2319. 

“Rather, the claims raised in the successive § 2255 motion must still meet the 

requirements of § 2255(h).” Id. The Eleventh Circuit’s preliminary determination 

that a defendant has made a prima facie showing that he has met the requirements 

of § 2255(h) “does not conclusively resolve that issue,” and the district court must 

itself determine de novo whether the statutory requirements are met. Id. See also 

 

in the indictment. See, e.g., United States v. Narog, 372 F.3d 1243, 1247-48 (11th Cir. 2004); United 

States v. Cancelliere, 69 F.3d 1116, 1121 (11th Cir. 1995). But the categorical approach looks to 

the statute of conviction to ascertain the elements of the offense, not the indictment. See St. 

Hubert, 909 F.3d at 348. 
11

Randolph v. United States, 904 F.3d 962, 965 (11th Cir. 2018) (collecting cases). 

Moreover, unlike the lesser prima facie showing required for authorization from the 

Court of Appeals, a defendant before the district court bears the burden of showing 

that he actually meets the statutory requirements of §2255(h). See In re Moore, 830 

F.3d 1268, 1272 (11th Cir. 2016) (noting that the defendant “has the burden of 

showing of actual entitlement to relief on his Johnson claim.” (emphasis added)); 

Jordan v. Secretary, Dept. of Corrections, 485 F.3d 1351, 1358 (11th Cir. 2007) (“The 

statute puts on the district court the duty to make the initial decision about whether 

the petitioner meets the § 2244(b) requirements—not whether he has made out a 

prima facie case for meeting them, but whether he actually meets them.”).

As relevant here, § 2255(h)(2) provides that a successive motion must rely 

on “a new rule of constitutional law, made retroactive to cases on collateral review 

by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h)(2).5

Section 2244, which is cross-referenced in § 2255(h), contains an important and 

express directive. See In re Bradford, 830 F.3d 1273, 1276 (11th Cir. 2016) (observing 

that “§ 2255(h) incorporates the whole range of procedures and limitations set out 

in § 2244(b)(1), (b)(3), and (b)(4)”). Namely, it instructs that the district court “shall 

dismiss any claim presented in a second or successive application that the court of 

appeals has authorized to be filed unless the applicant shows that the claim satisfies 

 5 Section 2255(h)(1), which applies when a defendant asserts “newly discovered evidence,” is 

plainly inapplicable here. 
12

the requirements of this section.” Id. at § 2244(b)(4). As stated above, requirement 

applicable here is that each claim is based on a “new rule of constitutional law” 

made retroactive by the Supreme Court. Id. at § 2255(h)(2). 

Section § 2255(h)’s bar is applied on a claim-by-claim basis. Cannon, 931 

F.3d at 1241 n.3 (granting authorization for a Davis claim but denying review for a 

separate claim that did not rely on a new rule of constitutional law made retroactive 

by the Supreme Court and thus did not satisfy § 2255(h)). See also In re Garrett, 908 

F.3d 686, 689-90 (11th Cir. 2018) abrogated on other grounds by Davis, 139 S. Ct. 2319 

(2019); Jordan, 485 F.3d at 1357 (explaining, under the analogous provision for 

successive § 2254 petitions, that all claims raised in the successive petition must 

within one of the statutory grounds for successive petitions). And significantly, 

§ 2255(h)’s gatekeeping function is jurisdictional-—only after the district court 

determines that the claim meets § 2255(h)’s requirements does the court have 

jurisdiction to consider whether relief should be granted. Randolph, 904 F.3d at 

964; Ziglar v. United States, 757 F.App’x 886, 889 (11th Cir. 2018).6

 

B. Only a Davis Claim Can Survive § 2255(h)(2)’s Bar

In his successive motion, Lombardi argues that his conviction for 

 6 The Court of Appeals authorization gives the district court jurisdiction to consider whether the 

§ 2255(h) requirements have been satisfied. Randolph, 904 F.3d at 964. Only after the court 

determines the claim satisfies the requirements in § 2255(h) does it have jurisdiction to consider 

the merits and grant relief. Id. 
13

maliciously damaging property qualifies as a crime of violence under neither 

§ 924(c)(3)(A)’s force clause nor § 924(c)(3)(B)’s (now invalidated) residual clause. 

As Eleventh Circuit precedent makes clear, these are two distinct and “very 

different” claims, one that asserts Lombardi was erroneously convicted under

residual clause, the other asserting that Lombardi was erroneously convicted under 

the elements clause. See Beeman v. United States, 871 F.3d 1215, 1220 (11th Cir. 

2017) (observing that a defendant had raised separate Johnson and Descamps claims 

where he argued that his conviction had qualified under the residual clause and 

would no longer qualify under the elements clause). See also In re Hires, 825 F.3d 

1297, 1303 (11th Cir. 2016); Muhammad v. United States, 768 F.App’x 897, 900 n.2 

(11th Cir. 2019); Daniel v. United States, 738 F.App’x 669, 671 (11th Cir. 2018). 

As stated above, supra at 8, Davis established a new rule of constitutional law 

made retroactively applicable by the Supreme Court, so a claim premised on Davis 

can survive § 2255(h)(2)’s bar.7 But Lombardi’s argument that his conviction for 

maliciously damaging property under § 844(i) cannot qualify under 

§ 924(c)(3)(A)’s elements clause does not rely on Davis or any other new rule of 

constitutional law. Doc. 229-1 at 15, 17, 20-21. Rather, it relies primarily on the 

proper application of the categorical approach. See id. This is predominantly an 

 7 While a claim premised on Davis can survive § 2255(h)(2), the defendant must still prove that 

he falls within the substantive rule announced in Davis to do so. Griffin, 823 F.3d at 1354; infra 

at 15.
14

issue of statutory interpretation—not of constitutional law—and it is certainly now 

new. See Descamps v. United States, 570 U.S. 254, 260 (2013) (discussing how its 

prior case law, beginning with Taylor v. United States, 495 U.S. 575 (1990), dictates 

the proper application of the categorical and modified categorical approaches); 

United States v. McGuire, 706 F.3d 1333, 1336 (11th Cir. 2013) (applying the 

categorical approach to § 924(c)(3)(A)-(B) “because of the statute’s terms”); Garrett, 

908 F.3d at 689 (“The substitution of one interpretation of a statute for another 

never amounts to a new rule of constitutional law ... not even when it comes from 

the Supreme Court.” (internal citation omitted)); Griffin, 823 F.3d at 1356

(recognizing that Descamps did not announce a new rule of constitutional law).

8

Moreover, a defendant cannot use a timely residual clause claim “as a portal to 

relitigate whether [a predicate] qualifies under the elements clause.” See Hires, 825 

F.3d at 1303; In re Thomas, 823 F.3d 1345, 1349 (11th Cir. 2016). 

Accordingly, to the extent Lombardi seeks to argue that his § 924(c) 

convictions cannot be based on the elements clause, that claim—which is distinct 

from a Davis residual clause claim, see Beeman, 871 F.3d at 1220—must be 

dismissed as successive because it does not rely on a new rule of constitutional law, 

 8 For similar reasons, the elements clause claim is also untimely. See 28 U.S.C. § 2255(f)(1)&(3) 

(providing that a claim is timely if it is filed within one year of either (1) finality or (2) the date 

on which the Supreme Court recognizes a new right that is retroactively applicable). However, 

because the claim does not satisfy the requirements of § 2255(h)(2), timeliness is irrelevant. See 

Cannon, 931 F.3d at 1244-45. 
15

as required by § 2255(h)(2). This Court simply lacks jurisdiction over the claim. See 

Randolph, 904 F.3d at 964; Ziglar, 757 F.App’x at 889. 

C. Lombardi’s Davis Claim Must be Dismissed Because He Cannot Show his 

§ 924(c) Convictions were Based on § 924(c)(3)(B)’s Residual Clause

To prove that his claim relies on the new rule of constitutional law 

established in Davis, Lombardi bears the burden of showing that his § 924(c) 

convictions were based solely on § 924(c)(3)(B)’s residual clause. See Hammoud, 

931 F.3d at 1041 (“in the district court, Hammoud will bear the burden of showing 

that he is actually entitled to relief on his Davis claim, meaning he will have to 

show that his § 924(c) conviction resulted from application of solely the residual 

clause.”); In re Moore, 830 F.3d 1268, 1271-72 (11th Cir. 2016) (“The district court 

must decide whether or nor Moore was sentenced under the residual clause in 

2005, whether the new rule in Johnson is implicated ..., and whether the § 2255(h) 

applicant has established the § 2255(h) statutory requirements for filing a second 

or successive motion.” (alternation omitted)); Hires, 825 F.3d at 1303 (“what 

matters ... is whether, at sentencing, [the defendant’s] prior convictions qualified 

pursuant to the residual clause, which would render his sentence subject to 

successive § 2255 challenge under Johnson, or pursuant to the elements clause, 

which would not.”); Griffin, 823 F.3d at 1354; Thomas, 823 F.3d at 1348.

More specifically, under the Eleventh Circuit’s precedent in Beeman, 871 

F.3d at 1221-25, Lombardi must show that it is more likely than not that his 
16

§ 924(c) convictions were premised solely on § 924(c)(3)(B)’s residual clause and 

not § 924(c)(3)(A)’s elements clause, which survived Davis.

9 This is a question of 

“historical fact,” id. at 1222-24 & n.5, and to answer it, the court “look[s] first to 

the record.” United States v. Pickett, 916 F.3d 960, 963 (11th Cir. 2019). “Sometimes 

the answer will be clear—‘[s]ome [] records may contain direct evidence: 

comments or findings by the [] judge indicating that the residual clause was relied 

on and was essential.’” Id. (quoting Beeman, 871 F.3d at 1224 n.4). The court may 

also “look elsewhere in the record, to a PSI for example, to find circumstantial 

evidence.” Id. And if the record is not determinative, the court looks to the “case 

law at the time of [conviction and] sentencing.” Id. “[I]f the law was clear at the 

 9 Beeman involved an initial § 2255 motion with a Johnson challenge to an ACCA sentence. In 

that case, the court held that the defendant bears the burden of proving that he was sentenced 

under the residual clause to succeed on the merits of his Johnson claim. 871 F.3d at 1221-22. 

However, a defendant pursuing a residual-clause-based challenge in an initial § 2255 motion 

does not shoulder the preliminary burden of proving that his claim relies on a new rule of 

constitutional law. The only way to show that the claim relies on a new rule of constitutional 

law for successive claims based on Johnson or Davis is to actually show that the defendant’s 

conviction and/or sentence was based on the unconstitutional residual clause. See, e.g., Hires, 

825 F.3d 1297, 1303. So, for successive motions like Lombardi’s, the district court’s § 2255(h)(2) 

analysis overlaps with a merits determination. See Jackson v. United States, 875 F.3d 1089, 1090 

(11th Cir. 2017) (observing that the district court’s conclusion that the defendant’s motion did 

not meet the requirements of § 2255(h)(2) “was necessarily on the merits of [the defendant’s] 

claim, because under § 2255(h)(2) it is the merits of the claim itself that qualify it to be heard.”).

See also Perez v. United States, 730 F.App’x 804, 810 (11th Cir. 2018) (observing that the district

court’s determination of whether a Johnson claim meets the requirements for a successive motion 

“is itself an evaluation of the merits of the Johnson claim.”). 

At any rate, whether the analysis is characterized as a threshold § 2255(h)(2) determination or a 

determination on the merits of the claim, the Eleventh Circuit’s precedent is clear that, for a 

residual-clause-based challenge to a conviction or sentence—again, the only type of challenge 

this Court has jurisdiction under § 2255(h)(2) to consider, see supra at 13-15—the defendant bears 

the burden of proving that his conviction was based on the residual clause. 
17

time of [conviction] that only the residual clause would authorize a finding that 

the [predicate] conviction was a [crime of violence], that circumstance would 

strongly point to a [conviction] per the residual clause.” Beeman, 871 F.3d at 1224

n.5. But where the record is silent and “the evidence does not clearly explain what 

happened ... the party with the burden loses.” Id. at 1224-25. 

Lombardi cannot meet his burden under Beeman, so his Davis claim must be 

dismissed. The predicate for Lombardi’s § 924(c) convictions is maliciously 

destroying property by means of an explosive under 18 U.S.C. § 844(i), as charged 

in Counts One and Three of the indictment. Doc. 87 at 1-3. Nothing in the 

indictment indicates whether the two maliciously damaging property offenses 

charged were considered crimes of violence under § 924(c)(3)(A) or (c)(3)(B). Id. 

Nor does anything in the jury instructions or the presentence report. See Doc. 88 

at 13-15; PSR ¶¶ 4, 6. Moreover, the government has reviewed the trial and 

sentencing transcripts in this case and did not find anything indicating one way or 

the other which clause(s) the government or the Court relied upon for the § 924(c) 

convictions.10 This is likely because Lombardi seemingly never argued that the 

§ 844(i) offenses charged in Counts One and Three were not crimes of violence. 

 10 In calculating Lombardi’s guideline range at sentencing, this Court concluded that Lombardi 

had knowingly “created a substantial risk of death or serious bodily injury” to another person. 

Doc. 124 at 15-18. See also PSR at ¶¶ 58, 66. But nothing in the record suggests this finding for 

purposes of U.S.S.G. § 2K1.4 had any relevance to whether the offenses charged in Counts One 

and Three qualified as crimes of violence under either the elements or residual clauses. See Doc. 

124 at 9-18. 
18

See, e.g., Doc. 120 at 1136-37, 1160, 1221. Simply stated, the government has not 

found anything in the record that sheds light on this determinative question, and 

Lombardi’s motion likewise identifies nothing. 

The case law in existence during Lombardi’s prosecution and sentencing—

that is, before October of 1999—is equally unhelpful. As the Eleventh Circuit’s 

order granting Lombardi’s petition to file a successive motion notes, no precedent

in this circuit establishes whether maliciously destroying property with an 

explosive device under § 844(i) constitutes a crime of violence under 

§ 924(c)(3)(A)’s elements clause. Doc. 221 at 4. There is likewise appears to be no 

precedent stating that such a conviction qualifies under § 924(c)(3)(B)’s residual 

clause. But importantly, no law in existence at that time of Lombardi’s conviction 

would have precluded the conclusion that the offenses charged in Counts One and

Three of the indictment qualified as a crimes of violence under § 924(c)(3)(A). 

Lombardi was convicted and sentenced over a decade before the Eleventh Circuit 

interpreted § 924(c)(3)(A) to require categorical approach, United States v. McGuire, 

706 F.3d 1333, 1336-37 (11th Cir. 2013), and before the distinction between 

“means” and “elements” had emerged. See Descamps, 570 U.S. at 271-72. See Hires, 

825 F.3d 1303 (recognizing that the requirement of divisibility was not articulated 

until 2013 when the Supreme Court issued its Descamps decision.”). So even if this 

Court applied the categorical approach, it would have been entitled to consult the 
19

indictment and jury instructions to ascertain whether the jury necessarily found 

that Lombardi had used force against the property of another. See Taylor v. United 

States, 495 U.S. 575, 602 (1990); United States v. Adams, 91 F.3d 114, 115-16 (11th 

Cir. 1996). Importantly, the indictment, the Court’s jury instructions, and the 

verdict form all required the jury to find that Lombardi had damaged specific

buildings at FAMU, a public university. Doc. 87 at 1-3; Doc. 88 at 10-15; Doc. 89. 

Thus, this Court would have been well within existing precedent to conclude that 

Lombardi’s § 844(i) offenses were crimes of violence under § 924(c)(3)(A) because 

they required the use of force against the property of another. 

To be sure, Lombardi’s destruction of property offenses could have probably

qualified under § 924(c)(3)(B)’s residual clause, though there appears to be no 

precedent so holding. But that doesn’t help Lombardi. “[A]bsent clear precedent 

showing that the court could have only used one clause or another, a conviction’s 

eligibility under one or the other clause cannot be determinative because the 

conviction’s arguable qualification under the [residual] clause would not necessarily 

mean the judge relied on that clause.” See Pickett, 916 F.3d at 964 (internal citations 

omitted) (emphasis in original). So the observation that the conviction qualified 

under the residual clause would only get Lombardi “halfway. He still needs to 

show that it is unlikely that the trial court thought the conviction[] also qualified 

under the elements clause.” Id. at 955. As the above law makes clear, no precedent 
20

at the time of Lombardi’s indictment, conviction, or sentencing, would have 

precluded the conclusion that the malicious destruction of property offenses 

Lombardi was convicted of committing in Counts One and Three qualified as a 

crimes of violence under the § 924(c)(3)(A)’s elements clause. 

At most, Lombardi has pointed out that malicious destruction of property 

convictions fail to qualify under the elements clause under current law. Doc. 229-

1 at 15, 17, 20-21. True, but that “casts very little light, if any, on the key question 

of historical fact here.” Beeman, 871 F.3d at 1224 n.5. Where, as here, it is unclear 

whether the Court relied “on the residual clause or the elements clause, or both” 

to find that Lombardi’s § 844(i) convictions qualified as a crimes of violence, 

Lombardi—the party with the burden—loses. Id. at 1225.

Because Lombardi cannot show that his claim depends on a new rule of 

constitutional law—or, more specifically, that “he falls within the scope of the new 

substantive rule announced in [Davis],” Griffin, 823 F.3d at 1354—there is nothing 

left for this Court to consider. Section § 2244(b)(4) mandates dismissal.11 See Levert 

v. United States, 766 F.App’x 932 (11th Cir. 2019) (affirming the district court’s 

dismissal of a Johnson claim as successive where the defendant did not show that 

 11 Lombardi asserts that his claims are not procedurally barred. Doc. 229-1 at 5-7. Because 

Lombardi has not satisfied the requirements of § 2255(h)(2), this Court need not consider 

whether his Davis claim is procedurally barred. See Cannon, 931 F.3d at 1244-45 (“should the 

district court conclude that Cannon has established the statutory requirements for filing a 

second or successive motion, it shall proceed to consider the merits of the motion, along with 

any defenses and arguments the respondent may raise, such as waiver, procedural default, or the 

concurrent sentence doctrine.” (internal quotations omitted)).
21

the sentencing court relied on the residual clause); Boykin v. United States, 783 

F.App’x 1001 (11th Cir. 2019) (noting that dismissal is the proper remedy where 

the defendant’s claim fails to satisfy the requirements of § 2255(h)).12

D. Regardless of Its Merits, Lombardi’s Davis Claim 

Does Not Extend to Counts One and Three

Lombardi’s motion also argues that his convictions on Counts One and 

Three—that is, the substantive malicious destruction of property offenses that serve 

as his two § 924(c) predicate crimes of violence—also must be vacated under Davis. 

Doc. 229 at 5-6; Doc. 229-1 at 20-21. Lombardi has not articulated how Davis 

impacts these convictions other to say that they are “linked” to his § 924(c) 

convictions and do not qualify as crimes of violence. But whether Lombardi’s 

convictions under § 844(i) qualify, as a matter of law, as crime of violence

predicates for purposes of § 924(c) and Counts Two and Four has no bearing on 

 12 In candor to the Court, the government has previously consented to § 2255 relief for defendants 

challenging § 924(c) convictions via initial § 2255 motions presenting related residual clause and 

elements clause claims. See United States v. Dugas, N.D. Fla. No. 5:03cr29-MCR-MJF, Doc. 50 

(Government Response to Defendant’s § 2255 motion, filed October 24, 2019). In those 

circumstances, the government recognizes that the defendants’ motions generally present timely 

Davis claims as well as separate and untimely claims that they were erroneously convicted under 

§ 924(c)(3)(A)’s elements clause. Id. at 6-10. Where the government agrees that the § 924(c)

predicate does not qualify under the elements clause, it waives its statute of limitations defense 

to the untimely elements clause claim, which allows the Court to grant relief on the claims. Id. 

However, initial motions are not subject to § 2255(h)’s jurisdictional limitations and, as discussed 

above, defendants such as Lombardi who are pursuing relief through a successive § 2255 motion 

must allege a claim relying on a new rule of constitutional law for the court to have jurisdiction 

over the claim. Randolph, 904 F.3d at 964. Because elements clause claims do not rely on new 

rules of constitutional law, the court simply lacks jurisdiction over the claim. Thus, there is no

elements clause claim to be considered by the court, and no untimeliness defense to be asserted 

(or waived) by the government. 
22

whether Lombardi was properly convicted under § 844(i) on Counts One and 

Three. Davis’s invalidation of § 924(c)(3)(B)’s residual clause simply has nothing to 

do with Lombardi’s two substantive convictions under § 844(i). Thus, regardless 

of whether the § 924(c) convictions on Counts Two and Four are due to be vacated, 

Lombardi remains properly convicted of malicious destruction of property under 

§ 844(i) for the bombings of FAMU’s Lee Hall and Perry-Paige Building. 

III. If This Court Concludes Lombardi is Entitled to Relief Under § 2255, the 

Appropriate Remedy is a Resentencing on the Surviving Counts

If this Court concludes that Lombardi has satisfied the requirements of 

§ 2255(h)(2) and is entitled to relief under Davis, the government requests that this 

matter be set for resentencing. Lombardi asks this Court to vacate his convictions 

on Counts One through Four and impose a sentence of time served on the 

remaining counts with his immediate release. Doc. 229 at 6; Doc. 229-1 at 30. 

Given the seriousness of the conduct in this case, and in the absence of a 

mandatory life sentence, the government disagrees that the imposition of a timeserved sentence, without a resentencing, is an appropriate remedy in this case. The 

government also disagrees that a sentence of time served—which equates to a 

sentence of approximately 20 years—is substantively reasonable in light of all the 

§ 3553(a) factors.

When a court grants a § 2255 motion, the statute requires two things. “First, 

the court must vacate and set the judgment aside.” United States v. Brown, 879 F.3d 
23

1231, 1235 (11th Cir. 2018). “Second, the court must choose from among four 

distinct remedies: (1) discharge the prisoner; (2) resentence the prisoner; (3) grant 

the prisoner a new trial; or (4) correct the prisoner's sentence.” Id. “A resentencing 

is close to beginning the sentencing process anew and is open-ended and 

discretionary.” United States v. Thomason, 940 F.3d 1166, 1171 (11th Cir. 2019) 

(quoting Brown, 879 F.3d at 1236). “A sentence correction, in contrast, is a more 

limited remedy, responding to a specific error.” Id. (quotations omitted). The relief 

to be granted is a matter of discretion, and the statute’s only requirement is that the 

remedy be “appropriate.” 28 U.S.C. § 2255(b).

When a district court vacates a § 924(c) conviction (or convictions) after a 

successful § 2255 motion, the court has jurisdiction to fully resentence the 

defendant on the remaining counts. United States v. Mixon, 115 F.3d 900, 903 (11th 

Cir. 1997). Indeed, in the Guidelines era, it is well accepted that “sentencing on 

multiple counts is an inherently interrelated, interconnected, and holistic process 

which requires a court to craft an overall sentence—the ‘sentence package’—that 

reflects the guidelines and the relevant § 3553(a) factors.” United States v. Fowler, 

749 F.3d 1010, 1015 (11th Cir. 2014). Since a multicount sentence is a package, 

“severing part of the total sentence usually will unbundle it.” Mixon, 115 F.3d at 

903. And when the “sentencing package [becomes] unbundled,” the Court has the 

authority to “recalculate and reconsider the sentence for it to comport with the 
24

[Court’s] original intentions at sentencing.” United States v. Watkins, 147 F.3d 1294, 

1297 (11th Cir. 1998). See also Davis, 137 S. Ct. 1170, 1176 (quoting Dean v. United 

States, 137 S. Ct. 1170, 1176 (2017) and recognizing that “when a defendant’s 

§ 924(c) conviction is invalidated, courts of appeals routinely vacate the 

defendant’s entire sentence on all counts so that the district court may increase the 

sentence for any remaining counts if such an increase is warranted.”). The court 

may impose higher as well as consecutive sentences on the remaining counts so 

long as the total new sentence does not exceed the total original sentence. See 

Fowler, 749 F.3d at 1023; Watkins, 147 F.3d at 1298; Mixon, 115 F.3d at 904; United 

States v. Cochran, 883 F.3d 1012, 1016-17 (11th Cir. 1989).

The vacatur of the consecutive mandatory minimums in this case—

including a mandatory life sentence—would substantially undo this Court’s 

original sentencing package. This Court’s sentence on Counts One, Three, Five, 

and Six was no doubt influenced by Count Two and Four’s mandatory consecutive 

minimums. See Dean v. United States, 137 S. Ct. 1170, 1178 (2017) (courts may take 

consecutive § 924(c) sentences into account when determining the sentence for 

predicate counts); Fowler, 749 F.3d at 1017 (Observing that “sentences that include 

a mandatory consecutive term of imprisonment ... are particularly well suited to 

being treated as a package because they are inherently interdependent.” (internal 

alternations and quotations omitted)). And in imposing a new sentence, this Court 
25

will be tasked with exercising its discretion on “questions the court was not called 

upon to consider at the original sentencing.” See Brown, 879 F.3d at 1239-40. 

Moreover, while Lombardi has been incarcerated for approximately 20 years, the 

combined statutory maximum for Counts One, Three, Five, and Six is 60 years. 

See 18 U.S.C. § 844(i) (providing a statutory maximum of 20 years for a § 844(i) 

conviction where no one is injured); Id. at § 245(b) (providing for a statutory 

maximum of 10 years for a § 245(b) offense involving the use of explosives). 

In light of the seriousness of Lombardi’s offenses, and the significant changes 

in the mandatory minimum penalties, if this Court determines that relief is 

warranted, the appropriate remedy is to resentence Lombardi on the remaining 

Counts of conviction. Of course, this Court may ultimately decide that the 

§ 3553(a) factors are satisfied by a sentence of time served. But this case is too 

important for this Court to make that significant determination without hearing 

further from both the government as well as Lombardi (who, as far as the 

government is aware, has yet to accept responsibility or express remorse for his 

actions). “The package should be repackaged to ensure that the punishment fits 

both the criminal and the crime.” Fowler, 749 F.3d at 1018. 
26

IV. Conclusion

For the forgoing reasons, the government contends that Lombardi’s motion 

must be dismissed, or alternatively denied, because he has not shown that his 

motion relies on a new rule of constitutional law in that his § 924(c) convictions

were based solely on the unconstitutional residual clause. Should this Court 

disagree and grant Lombardi’s motion as to Counts Two and Four, the 

government contends that full resentencing on Counts One, Three, Five, and Six 

is the only appropriate remedy in this case. 

Respectfully submitted,

LAWRENCE KEEFE

United States Attorney

_____________________

JORDANE E. LEARN

Assistant United States Attorney

Northern District of Florida

Florida Bar No. 117808

111 North Adams Street, 4th Floor

Tallahassee, FL 32301

(850) 942-8430

jordane.e.learn@usdoj.gov
27

CERTIFICATE OF COMPLIANCE

I certify that this response complies with Local Rule 7.1(F) U.S. District 

Court for the Northern District of Florida. This notice contains 6,859 words.

s/ Jordane E. Learn

JORDANE E. LEARN

Assistant United States Attorney

CERTIFICATE OF SERVICE

I certify that one copy of the foregoing has been served electronically via 

CM/ECF to Patricia Jean Kyle, appointed counsel for Defendant Lawrence 

Lombardi, this 14th day of April 2020. 

s/ Jordane E. Learn

JORDANE E. LEARN

Assistant United States Attorney