[ DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 18

- 10334

________________________ D.C. Docket No s . 1:16

- cv - 22657

- PCH ; 1:06

- cr - 20 340

- PCH

- 2

MICHAEL HERNANDEZ , Petitioner

- Appellant , versus UNITED STATES OF AMERICA , Respondent

- Appellee

.

________________________ Appeal from the United States District Court for the Southern District of Florida

_______________________ ( September 25, 2020 ) Before WILLIAM PRYOR, Chief Judge, TJOFLAT and HULL , Circuit Judges

. PER CURIAM: Michael Hernandez appeals the denial of his successive motion to vacate his conviction, 28 U.S.C. § 2255, for possessing a firearm during a crime of violence, 18 U.S.C. § 924(c)(1)(A)

. In 2006, a jury convicted Hernandez o f one count of

Case: 18-10334 Date Filed: 09/25/2020 Page: 1 of 32 conspiracy to engag e in hostage taking, 18 U.S.C. § 1203(a), one count of hostage taking, id. , one count of carrying a firearm during a crime of violence, id. § 924(c)(1)(A), and one count of possessing a firearm as a convicted felon, id. § 922(g)(1). The third count , carryi ng a firearm during a crime of violence , was predicated on both hostage

- taking counts. T he district court sentenced Hernandez to 324 months of imprisonment on the hostage

- taking counts , to run concurrently with a sentence of 120 months of imprisonment on t he felon

- in

- possession count ,

a nd to an additional 84 months of imprisonment on the crime

- of

- violence count, to run consecutively to the three other counts, for a total term of 408 months of imprisonment. After receiving authorization in our Court, see 28 U.S.C. 2255(h), in June
20 1 6, Hernandez filed a successive motion to vacate his conviction for carrying a firearm during a crime of violence

. He contended that hostage taking did not qualify as a crime of violence under section 924(c) (3) , under either subsection (A), the elements clause, or subsection (B), the residual clause . 18 U.S.C. § 924(c)(3). In his view, the residual clause could not survive constitutional scrutiny unde r the reasoning of Johnson v. United States , 135 S. Ct. 2 5 51 (2015)

. T he district court denied Hernandez’s motion based on our decision in Ovalles v. United States , 861 F.3d 1257 , 1259 (11th Cir. 2017) , aff’d en banc , 905 F.3d 1231 (11th Cir. 2018), abrogated by United States v. Davis , 139 S. Ct. 2319

Case: 18-10334 Date Filed: 09/25/2020 Page: 2 of 33 (2019)

. W e later granted Hernandez a certificate of appealability as to “[w]hether [his] companion offense for hostage taking qualified as a crime of violence under
18 U.S.C. § 924(c)(3)(B)’s residual clause.” While his appeal was pending, the Supreme Court decided that the residual clause of section 924(c)(3)(B) is unconstitutionally vague. Davis , 139 S. Ct. at 2336. Davis announced a new rule of constitutional law that appli es retroactively to cases on collateral review. In re Hammoud, 931 F.3d 1032, 1039 (11th Cir. 2019). And it dispensed with the question for which we granted Hernandez a certificate of appealability

. T he government now concedes that hostage taking does not qualify as a crime of violence under section 924(c)(3)(A). So , it no longer opposes vacatur of Hernandez’s section 924(c) conviction. We therefore vacate the order denying Hernandez’s motion and remand for the district court to re consider t he mot ion in
the light of Davis

. VACATED AND REMANDED

. Case: 18-10334 Date Filed: 09/25/2020 Page: 3 of 3