[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 17-14249

Non-Argument Calendar

________________________

D.C. Docket No. 1:16-cv-02226-ODE,

1:12-cr-00205-ODE-ECS-2

KIRK L. FLOYD, 

a.k.a. Twin, a.k.a. 

Kirk Lorin Floyd, 

 Petitioner-Appellant,

 versus

UNITED STATES OF AMERICA, 

 Respondent-Appellee.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

________________________

(May 1, 2020)

Before ED CARNES, Chief Judge, GRANT, and LUCK, Circuit Judges.

PER CURIAM: 

Case: 17-14249 Date Filed: 05/01/2020 Page: 1 of 3
2

Kirk Floyd is a federal prisoner serving a total 300-month sentence for 

multiple convictions, including conspiracy to commit Hobbs Act robbery, in 

violation of 18 U.S.C. § 1951(a), and brandishing a firearm in furtherance of a 

crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(i) and (B)(i) and § 2. 

Floyd’s § 924(c) conviction was predicated on conspiracy to commit Hobbs Act 

robbery. He appeals the district court’s denial of his 28 U.S.C. § 2255 motion to 

vacate, arguing that his § 924(c) conviction is no longer constitutional in light of 

United States v. Davis, 139 S. Ct. 2319 (2019), and Brown v. United States, 

942 F.3d 1069 (11th Cir. 2019). The government opposed his § 2255 motion 

before the district court, but now agrees with Floyd and asks us to vacate and 

remand for a full resentencing. We agree with the parties and reverse the district 

court’s denial of Floyd’s § 2255 motion. 

In reviewing a district court’s denial of a § 2255 motion, we review de novo 

the court’s legal conclusions and its factual findings for clear error. Brown, 

942 F.3d at 1072. Section 924(c) provides for a mandatory consecutive sentence 

for any defendant who uses a firearm during a crime of violence or drug-trafficking 

crime. 18 U.S.C. § 924(c)(l). A “crime of violence” is an offense that is a felony 

and: (A) has as an element the use, attempted use, or threatened use of physical 

force against the person or property of another, or (B) by its nature, involves a 

substantial risk that physical force against the person or property of another may be 

Case: 17-14249 Date Filed: 05/01/2020 Page: 2 of 3
3

used in the course of committing the offense. Id. § 924(c)(3). We commonly refer 

to § 924(c)(3)(A) as the “elements clause” and § 924(c)(3)(B) as the “residual 

clause.” Brown, 942 F.3d at 1071.

In Davis, the Supreme Court struck down § 924(c)’s residual clause as 

unconstitutionally vague. 139 S. Ct. at 2323-24, 2336. We have held that Davis 

announced a new rule of constitutional law that applies retroactively to cases, like 

Floyd’s, on collateral review. In re Hammoud, 931 F.3d 1032, 1037–39 (11th Cir. 

2019). We have also held, in Brown, that conspiracy to commit Hobbs Act 

robbery is not categorically a crime of violence under § 924(c)’s elements clause

because the statutory elements of Hobbs Act conspiracy do not require the 

existence of a threat or attempt to use force. 942 F.3d at 1075–76.

Floyd’s conviction for conspiracy to commit Hobbs Act robbery was not a 

crime of violence under either § 924(c)’s elements clause, in light of Brown, or 

§ 924(c)’s residual clause, in light of Davis. Because there were no other predicate 

offenses for his § 924(c) conviction, that conviction must be vacated. We therefore 

reverse the district court’s denial of Floyd’s § 2255 motion and remand for 

resentencing. 

REVERSED AND REMANDED.

Case: 17-14249 Date Filed: 05/01/2020 Page: 3 of 3