[DO NOT PUBLISH]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,

ver sus 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 32 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 § 9 24(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 , argu ing 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). T he 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 w ho uses a firearm during a crime of violence or drug

- trafficking crime. 18 U.S.C. § 924(c)(l). A “ crime of violence ” i s 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 33 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. W e 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). W e 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 ligh t 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