REVISED OCTOBER 24, 2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-40678

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CLARENCE ROBINSON,

Defendant-Appellant

Appeals 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 his 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 5TH CIR. 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 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 23, 2019

Lyle W. Cayce

Clerk

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has conceded that Robinson is entitled to vacatur of his § 924(c) conviction and 

the associated sentence. As discussed below, we agree 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 this 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 objection 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 waiver 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 § 924(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 that 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 

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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 clause 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, courts “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 sub 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.

The judgment of the district court is REVERSED, and the matter is

REMANDED to the district court for disposition consistent with this opinion.

Robinson’s motion for the appointment of counsel is DENIED as unnecessary. 

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Robinson’s motion for bond pending appeal is DENIED, but the mandate shall 

issue forthwith. 

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