United States Court of Appeals 

For the Seventh Circuit 

Chicago, Illinois 60604 

Argued December 9, 2019 

Decided January 24, 2020 

Before 

FRANK H. EASTERBROOK, Circuit Judge 

ILANA DIAMOND ROVNER, Circuit Judge 

MICHAEL Y. SCUDDER, Circuit Judge

Nos. 17-3306, 17-3307 

DEDRICK BUFKIN and DIAMOND 

TONEY, 

Petitioners-Appellees, 

v. 

UNITED STATES OF AMERICA, 

 Respondent-Appellant.

Appeals from the United States District 

Court for the Northern District of Indiana, 

Hammond Division. 

Nos. 2:16-cv-00236-JVB & 2:16-cv-00181-

JVB 

Joseph S. Van Bokkelen, Judge. 

O R D E R 

Dedrick Bufkin and Diamond Toney lured a victim from a dating website to a 

vehicle driven by Toney where the two defendants threatened the victim at gunpoint, 

robbed, bound, and gagged him, and drove him around in the trunk of the car for four 

hours before releasing him. A grand jury charged the two with kidnapping (18 U.S.C. 

§ 1201(a)(1)) and with knowingly brandishing a firearm during and in relation to a 

crime of violence, kidnapping, in violation of 18 U.S.C. § 924(c). 

NONPRECEDENTIAL DISPOSITION 

To be cited only in accordance with Fed. R. App. P. 32.1 
Page 2 Nos. 17-3306 & 17-3307 

Both defendants pled guilty to the section 924(c) count and the government 

agreed to dismiss the kidnapping count. Section 924(c) increases the penalties for using 

or carrying a firearm during or in relation to certain crimes of violence and states: 

(3) For purposes of this subsection the term “crime of violence” 

means an offense that is a felony and— 

(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.A. § 924(c)(3). Subsection A is often called the “force clause,” and 

subsection B, the “residual clause.” 

In hindsight, dismissing the kidnapping charge and relying on the crime of 

violence charge turned out to be the wrong choice for the government. In 2015, two 

years after the parties entered into the plea agreement, the Supreme Court issued an 

opinion in Johnson v. United States, 135 S. Ct. 2551 (2015), in which it evaluated a statute 

with almost identical language to § 924(c)(3)(B). The court in Johnson found that the 

language of the very similar statute left too much uncertainty about how much risk it 

takes for a crime to qualify as a violent felony and consequently held that “imposing an 

increased sentence under [the statute at issue] violates the Constitution’s guarantee of 

due process.” Id. at 2558, 2563. After the Court issued its opinion in Johnson, in 2016, 

Toney and Bufkin filed identical motions under 28 U.S.C. § 2255, arguing that in light of 

the Supreme Court’s holding in Johnson, kidnapping does not qualify as a “crime of 

violence” under the nearly identical wording of section 924(c), and therefore their 

convictions must be vacated. R. 71, 74. 

While these motions were pending before the district court, this court had the 

opportunity to apply the holding of Johnson to section 924(c) directly, and concluded, 

that in light of Johnson, “kidnapping under 18 U.S.C. § 1201(a) is not a crime of violence 

as defined in § 924(c).” United States v. Jenkins, 849 F.3d 390, 394 (7th Cir. 2017), cert. 

granted, judgment vacated, 138 S. Ct. 1980 (2018), reinstated sub. nom., United States v. 

Jackson, 932 F.3d 556, 557 (7th Cir. 2019).1 The opinion reasoned that kidnapping does 

1 The Supreme Court granted certiorari and vacated the judgment and remanded to this court for 

further consideration in light of its then-new decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018). See

United States v. Jenkins, 138 S. Ct. 1980 (2018). Dimaya involved an identically-worded immigration statute. 

We can skip over this interim period of time when Dimaya called into question all similarly worded 
Nos. 17-3306 & 17-3307 Page 3

not require physical force as an element of the crime, thus precluding it from being a 

“crime of violence” under the force clause, section 924(c)(3)(A), and that the residual 

clause was unconstitutionally vague, thus precluding kidnapping from being a “crime 

of violence” pursuant to section 924(c)(3)(B). Id. at 394. 

Relying on this new Jenkins decision from this court, and on the Supreme Court’s 

decision in Johnson, the district court granted both petitions and vacated both 

defendants’ section 924(c) convictions. 

 Once the court vacated the sole charge of conviction for both defendants, the 

government, on September 27, 2017, filed a Motion to Reinstate Count I of the 

indictment—the kidnapping charge under 18 U.S.C. § 1201(a)(1). The government 

argued that the court’s decision to vacate the sole count to which the defendant pled 

guilty frustrated the purpose of the plea agreement and therefore should “unwind” the 

case to the pre-plea stage. R. 92 at 4-5. In the alternative, the government argued that 

Toney and Bufkin violated the plea agreement by contesting a ground of conviction, 

and therefore, the government should be permitted to institute further proceedings 

against the defendants. Id. at 5. 

The district court, however, never ruled on the government’s Motion to Reinstate 

Count I. Instead, on November 3, 2017, the government appealed the district court’s 

decision to vacate the conviction and sentence of the defendants on Count II. R. 110, 

111. On that same day, the government filed a “Motion to Stay Proceedings on Count I 

or, in the Alternative, to Extend Time to File Reply.” R. 116. The district court granted 

the stay. R. 127. In its appeal to this court on Count II, the government argued that the 

language that the Supreme Court found to be unconstitutionally vague in Johnson was 

materially different from the language of section 924(c) at issue in this case. The 

government did not appeal the finding that kidnapping is not a crime of violence under 

the force clause of section 924(c)(3)(A), and thus the only question at issue in the 

government’s appeal was whether the language of 924(c)(3)(B)—the residual clause—

was unconstitutionally vague. 

statutes because ultimately, in 2018, the Supreme Court addressed the exact question presented in Jenkins

and agreed with the original holding of the Seventh Circuit panel in Jenkins, that is, that the definition of 

“crime of violence” in 18 U.S.C. § 924(c) is unconstitutionally vague. United States v. Davis, 139 S. Ct. 2319, 

2336 (2019). Upon remand, the Seventh Circuit noted that “the question the Court remanded for us to 

consider in these appeals has now been answered by the Court itself” in Davis. United States v. Jackson, 932 

F.3d 556, 558 (7th Cir. 2019). 
Page 4 Nos. 17-3306 & 17-3307 

In the meantime, however, on June 24, 2019, the Supreme Court upset the 

government’s theory and confirmed what this court had decided in Jenkins—that is, that 

the definition of “crime of violence” in 18 U.S.C. § 924(c)(3)(B) was unconstitutionally 

vague. United States v. Davis, 139 S. Ct. 2319, 2336 (2019). The decision in Davis

unequivocally put to rest any question about the constitutionality of section 924(c)(3)(B). 

In light of Davis, it is clear that using a firearm to kidnap a victim does not violate 18 

U.S.C. § 924(c)(3)(B). Because the new rule announced in Davis is substantive—that is, it 

alters the range of conduct or class of persons that the law punishes—it applies 

retroactively. Welch v. United States, 136 S. Ct. 1257, 1266 (2016). 

After the initial appeal and briefing in this case, the parties submitted 

supplemental filings to this court to address the decision in Davis.

2 See Position 

Statement of the United States, (Appellate R. 50), and Response of Petitioners-Appellees 

Bufkin and Toney to the Position Statement of the United States (Appellate R. 55). But 

before we can address any of the arguments in these filings we must determine whether 

we have jurisdiction to hear this matter at all. See Restoration Risk Retention Grp., Inc. v. 

Gutierrez, 880 F.3d 339, 345 (7th Cir. 2018) (“We have an independent obligation to 

ensure that both the district court and this court have subject matter jurisdiction even 

when neither the parties nor the district court raised the issue.”) 

Article III of the Constitution “restricts the authority of federal courts to 

resolving ‘the legal rights of litigants in actual controversies,’” Genesis Healthcare Corp. v. 

Symczyk, 569 U.S. 66, 71–72 (2013) (citing Valley Forge Christian Coll. v. Americans United 

for Separation of Church and State, Inc., 454 U.S. 464, 471 (1982)). Federal courts lack the 

power to “decide questions that cannot affect the rights of litigants in the case before 

them.” Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477 (1990) (quoting North Carolina v. Rice,

404 U.S. 244, 246 (1971)). And that controversy and personal stake in the outcome “must 

be extant at all stages of review, not merely at the time the complaint is filed.’” 

Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (quoting Preiser v. Newkirk, 422 

U.S. 395, 401 (1975)). If an intervening circumstance deprives the plaintiff of a “personal 

stake in the outcome of the lawsuit,” at any point during litigation, the action can no 

longer proceed. Lewis v. Continental Bank Corp., 494 U.S. 472, 477–478 (1990) (internal 

quotation marks omitted). 

2 Prior to this, the parties also submitted supplemental briefs to discuss the Supreme Court’s 

holding in Sessions v. Dimaya, 138 S. Ct. 1204 (2018). In Dimaya, the Court found unconstitutionally vague 

the language in an immigration statute that had the identical language to that found in 18 U.S.C. §924(c). 

This interim step is now unnecessary to discuss given the holding in Davis. 
Nos. 17-3306 & 17-3307 Page 5

 After the Supreme Court’s decision in Davis, the United States filed a “Position 

Statement” in which it conceded that “in light of Davis, using a firearm to kidnap a 

victim does not violate 18 U.S.C. § 924(c)(1)(A),” and that Davis applies retroactively. 

Position Statement of the United States, R. 50 at 2. In view of the Supreme Court’s 

controlling decision in Davis, the government concedes that it no longer has a ground 

on which to challenge the district court’s order. Consequently, there is no case or 

controversy that remains from the appealed order—that is, the order of September 15, 

2017, vacating the section 924(c) convictions. 

Instead, the United States would like us to decide whether the kidnapping 

charge, under Count I of the indictment, can be reinstated. This was the exact question 

posed to the district court in the government’s Motion to Reinstate Count I—a motion 

that sits pending, but stayed, on the district court’s docket. See R. 92, 103, 116, & 127. 

The district court must take a first stab at answering this question before we can 

consider it on appeal. We dismiss this case for lack of jurisdiction and remand to the 

district court for resolution of the Motion to Reinstate Count I and any other unresolved 

business before it.