### REVISED OCTOBER 24, 2019

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 18

- 40678 Summary Calendar

UNITED STATES OF AMERICA ,
P laintiff

- Appell ee

v.
CLARENCE ROBINSON , Defen d a nt

- Appell ant

Appeal s from the United States District Court for the Eastern District of Texas USDC No. 1:16

- CV

- 337 USDC No. 1:94

- CR

- 40

- 1

Before WIENER, HAYNES, and COSTA, Circuit Judges. PER CURIAM: * Clarence Robinson, federal prisoner # 02476

- 095, appeals the denial of his 28 U.S.C. § 2255 motion, in which he challenged hi s conviction of knowingly using and carrying a firearm during and in relation to a crime of violence

. See 18 U.S.C. § 924(c)

. We granted a certificate of appealability . The Government

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED October 2 3 , 2019

Lyle W. Cayce Clerk Case: 18-40678 Document: 00515172491 Page: 1 Date Filed: 10/24/2019No. 18

- 40678

2 has conceded that Robinson is entitled to vacatur o f his § 924(c) conviction and
the associate d sentence. As discussed below, we a gree with the Government and therefore reverse the denial of § 2255 relief and remand to the district court. Because Robinson may be entitled to immediate release, we have expedited th is appeal. The district court determined that Robinson’s § 2255 motion was untimely to the extent it relied on Mathis v. United States , 136 S. Ct. 2243 (2016) . But the motion was not based on Mathis ; it was based on Johnson v. United States , 135 S. Ct. 2551 (2015) . In any event, the Government has expressly waived any obje ction to the timeliness of Robinson’s § 2255 motion; it has also expressly waived any conceivable claim of procedural default. See Day v. McDonough , 547 U.S. 198, 202 (2006) (“[W]e would count it an abuse of discretion to override a State’s deliberate wai ver of a limitations defense

. ”); see also United States v. Wynn , 292 F.3d 226, 230 (5th Cir. 2002) (noting that the AEDPA limitations statute is not jurisdictional). Section 924(c) establishes an additional penalty for “ any person who, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm. ” § 924(c)(1). For § 9 24(c) purposes, a “crime of violence” is defined as a felony offense that “(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 t hat physical force against the person or property of another may be used in the course of committing the offense.” § 924(c)(3). Shortly after we granted a COA in this matter, the Supreme Court held
that the “substantial risk” clause of § 924(c)(3)(B) is unconstitutionally vague. See United States v. Davis , 139 S. Ct. 2319 , 2336 ( 2019)

. This court recently Case: 18-40678 Document: 00515172491 Page: 2 Date Filed: 10/24/2019No. 18

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3 determined that “ Davis announced a new rule of constitutional law retroactively applicable on a first habeas petition .” United States v. Reece , 938 F.3d 630, 635 (5th Cir. 2019). So Robinson’s § 924(c) conviction can be sustained only if the predicate offense for the conviction, conspiring to escape from federal custody, is a crime of violence under the elements clause of § 924(c)(3)(A). That clau se defines “crime of violence” as an offense that 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 deciding whether an offense meets this definition , c ourts “appl[y] a categorical approach, looking only to the statutory definitions

— i.e., the elements

— of a defendant ’ s offense, and not to the particular facts underlying the convictions. ” United States v. Buck , 847 F.3d 267, 274 (5th Cir.), cert. denied su b nom. Allen v. United States , 137 S. Ct. 2231, (2017), and cert. denied , 138 S. Ct. 149 (2017). To convict Robinson of an 18 U.S.C. § 371 conspiracy offense, the Government was required to prove “(1) an agreement between two or more persons to pursue an unlawful objective; (2) the defendant’s knowledge of the unlawful objective and voluntary agreement to join the conspiracy; and (3) an overt act by one or more of the members of the conspiracy in furtherance of the objective of the conspiracy.” United States

v. Coleman , 609 F.3d 699, 704 (5th Cir. 2010) . There is no element requiring “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). As a result, Robinson’s § 924(c ) conviction, and the associated 240

- month sentence of imprisonment, must be vacated. The Government concedes as much.
T he judgment of the district court is REVERSED, and the matter is REMANDED to the district court for disposition consistent with this o pinion.
Robinson ’ s motion for the appointment of counsel is DENIED as unnecessary. Case: 18-40678 Document: 00515172491 Page: 3 Date Filed: 10/24/2019No. 18

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4 Robinson’s motion for bond pending appeal is DENIED, but t he mandate shall issue forthwith. Case: 18-40678 Document: 00515172491 Page: 4 Date Filed: 10/24/2019