IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-11239

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

LAVADA CARREON,

Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:16-CV-591

Before JONES, ELROD, and HIGGINSON, Circuit Judges.

PER CURIAM:*

We granted a certificate of appealability allowing appellant Lavada 

Carreon to appeal the district court’s denial of her 28 U.S.C. § 2255 habeas 

petition. In light of the government’s recent concessions, we vacate and 

remand for resentencing.

In 2009, Carreon and her co-defendants kidnapped at gunpoint the 

brother of a man who owed them drug money. Based on Carreon’s 

involvement, she was convicted of kidnapping in violation of 

* 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

May 6, 2020

Lyle W. Cayce

Clerk

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18 U.S.C. § 1201(a) and using a firearm during the commission of a crime of 

violence in violation of 18 U.S.C. § 924(c). The kidnapping conviction was the 

predicate crime of violence for the Section 924(c) conviction.

After Carreon’s convictions were affirmed on direct appeal, she filed a 

Section 2255 habeas petition, arguing that her Section 924(c) conviction should 

be vacated because Johnson v. United States, 135 S. Ct. 2551 (2015) rendered 

Section 924(c)(3)(B)’s crime of violence definition unconstitutional. But 

Johnson did not address Section 924(c)(3)(B). See United States v. Reece, 

938 F.3d 630, 633 n.2 (5th Cir. 2019). The district court thus denied Carreon’s 

petition, and we denied a certificate of appealability. The Supreme Court 

nevertheless granted Carreon’s subsequent petition for certiorari, vacated our 

decision, and remanded the case for reconsideration in light of Sessions v. 

Dimaya, 138 S. Ct. 1204 (2018). See Carreon v. United States, 138 S. Ct. 1985 

(2018). Dimaya did not address the constitutionality of Section 924(c)(3)(B) 

either. See Reece, 938 F.3d at 633 n.2.

On remand, we granted a certificate of appealability on two issues:

“(1) whether Carreon’s § 2255 motion was filed timely and (2) whether her 

§ 924(c) conviction is constitutionally sound.” While the appeal was pending, 

the Supreme Court squarely held that Section 924(c)(3)(B)’s crime of violence 

definition is unconstitutional. See Davis v. United States, 139 S. Ct. 2319 

(2019). We therefore ordered supplemental briefing on Davis’s effect on 

Carreon’s appeal.

As to the timeliness of Carreon’s habeas petition, the government now 

“concedes that Davis renders Carreon’s motion timely under 

28 U.S.C. § 2244(d)(2).” Accordingly, the government “affirmatively waives its 

timeliness defense.” We thus turn to the second certified issue. See Day v. 

McDonough, 547 U.S. 198, 205, 210 n.11, 126 S. Ct. 1675, 1681, 1684 n.11 

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(2006) (recognizing that untimeliness under the AEDPA is not a jurisdictional 

defect; it is an affirmative defense that the government may waive); United 

States v. Pierce, 489 F. App’x 767, 768 (5th Cir. 2012).

Carreon argues her Section 924(c) conviction is unconstitutional because 

kidnapping is no longer a crime of violence under Davis. Section 924(c) defines 

“crime of violence” in two alternative ways. An offense qualifies if it is a felony 

and (1) “has as an element the use, attempted use, or threatened use of 

physical force against the person or property of another” (the elements clause); 

or (2) “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” (the residual clause). 18 U.S.C. § 924(c)(3)(A) & (B). As noted, Davis 

held that Section 924(c)(3)(B)’s residual clause definition is unconstitutional. 

139 S. Ct. at 2336. Thus, following Davis, Carreon’s Section 924(c) conviction 

“can be sustained only if [kidnapping] can be defined as a [crime of violence] 

under § 924(c)(3)’s element’s clause.” Reece, 938 F.3d at 635. The government 

concedes that it cannot. We therefore vacate Carreon’s Section 924(c) 

conviction.

We note, however, that “[o]ur court’s practice when one, but not all 

counts, within a multipart conviction has been vacated has generally been to 

remand to allow the district court to resentence in the first instance.” United 

States v. McRae, 795 F.3d 471, 483 (5th Cir. 2015). Indeed, the Davis majority 

relied on this practice in addressing the concerns of its dissenters. 

139 S. Ct. at 2336 (“[W]hen 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 sentences for any remaining counts 

if such an increase is warranted.”). Carreon was sentenced to ninety months 

of imprisonment on her kidnapping count despite a significantly higher 

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guidelines range. The record indicates the district court may have issued that 

lower sentence because of the mandatory consecutive sixty-month sentence 

Carreon received on her Section 924(c) count. We therefore find it appropriate 

to vacate Carreon’s sentence on the kidnapping count and remand for 

resentencing, leaving it to the district court’s sound discretion to determine an 

appropriate sentence. See Dean v. United States, 137 S. Ct. 1170, 1175 (2017).

For the foregoing reasons, Carreon’s Section 924(c) conviction is 

VACATED, and Carreon’s sentence on the kidnapping count is VACATED

and REMANDED to the district court for resentencing.

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