### 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 kidnapp ed 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 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .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 May 6, 2020 Lyle W. Cayce C lerk Case: 16-11239 Document: 00515406167 Page: 1 Date Filed: 05/06/2020No. 16

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2 18 U.S.C. § 1201(a) and using a firearm during the commission of a crime of
violence in viol ation 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 92 4(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 o n 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 th us 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 Case: 16-11239 Document: 00515406167 Page: 2 Date Filed: 05/06/2020No. 16

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3 (2006) (recognizing that untimeliness under the AEDPA is not a jurisdictional defect; it is an affirmative defense that the governme nt 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 substan tial 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 definitio n 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 gove rnment 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 Case: 16-11239 Document: 00515406167 Page: 3 Date Filed: 05/06/2020No. 16

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4 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 S tates , 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

. Case: 16-11239 Document: 00515406167 Page: 4 Date Filed: 05/06/2020