[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 17

- 11476 Non

- Argument Calendar

________________________ D.C. Docket No s . 0:08

- cr - 60309

- KAM

- 1 ; 0:16

- cv - 61499

- KAM
UNITED STATES OF AMERICA, Plaintiff

- Appellant,

versus DONALD DUHART, Defendant

- Appellee.

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

________________________ (February 7, 2020) Before MARTIN , JILL PRYOR, and ANDERSON , Circuit Judges.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Case: 17-11476 Date Filed: 02/07/2020 Page: 1 of 102 MARTIN, Circuit Judge : In United States v. Duhart , 7 52 F. App’x 954 (11th Cir. 2019) (per curiam) (unpublished), this panel reversed the d istrict c ourt’s decision granting Donald Duhart’s motion to vacate his conviction for using and carrying a firearm during a crime of violence , in violation of 18 U.S.C. § 924 (c) (1)

– (2). Id. at 956. The Supreme Court vacated our judgment and remanded the case to us for further consideration in light of its decision in United States v. Davis , 588 U.S. ___, 139 S. Ct. 2319 (2019) , which struck down § 924 (c) ’s residual clause as unconstitutionally vague , id. at 2336

. See Duhart v. United States , 140 S. Ct. 100 (2019). On remand, and in light of this Court’s decision in Brown v. United States , 942 F.3d 1069 (11th Cir. 2019), Mr. Duhart’s conviction under § 924 (c) cannot stand. We therefore affirm the D istrict C ourt’s decision vacat ing Mr. Duhart’s conviction under § 924(c) and remand with direct ions to resentenc e him on an expedited basis

. I. A federal grand jury indicted Mr. Duhart and his co

- conspirators with various drug, firearm, and robbery offenses. The indictment specifically charg ed
Mr. Duhart with conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (Count 1); conspiracy to possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846 and § 841(b)(1)(A)

Case: 17-11476 Date Filed: 02/07/2020 Page: 2 of 103 (Count 2); using and carrying a firearm during a crime of violence and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)

– (2) (Count 3); conspiracy to use and carry a firearm during and relation to a crime of violence , in violation of 18 U.S.C. § 924(o) (Cou nt 6); and being a felon in possession of a firearm or ammunition, in violation of 18 U.S.C. § 922(g) (Count 7). With respect
to Mr. Duhart’s § 924(c) charge in Count 3, t he indictment specified that (1) the predicate “crime of violence” was conspiracy to commit Hobbs Act robbery as charged in Count 1 ; and (2) the predicate “drug trafficking crime” was conspiracy to possess with intent to distribute five kilograms or more of cocaine as charged in
Count 2.
Mr. Duhart entered an agreement to ple a d guilty to Counts 1 and 3

. Unlike the indictment , which stated that Count 3 was predicated on the offense s charged in Count s 1 and 2, his plea agreement indicated that Count 3 was predicated solely

on the “crime of violence” charged in Count 1 , namely conspiracy to commit Hobbs Act robbery

. During Mr. Duhart’s plea colloquy , the D istrict C ourt explained that the version of Count 3 to which Duhart pled guilty “alleges that [he] knowingly used and carried a firearm .

. . in relation to a crime of violence and that ’s a violation of [18 U.S.C. § 1951(a)]. ” At no point during Mr. Duhart’s plea colloquy did t he c ourt otherwise indicate that Count 3 was predicated on a drug trafficking crime.

Case: 17-11476 Date Filed: 02/07/2020 Page: 3 of 104 The D istrict C ourt accepted Mr. Duhart’s guilty plea and sentenced him to 87

- months imprisonment on the conspiracy to commit Hobbs Act robbery conviction together with a consecut ive 60

- month s imprisonment on the § 924(c) conviction. His convictions and sentence were affirmed on direct appeal. United States v. Duhart , 379 F. App’ x 814 , *1 (11th Cir. 2010) (per curiam) (unpublished)

. Mr. Duhart later filed a motion for post

- conviction relief under 28 U.S.C. § 2255 , which was unsuccessful in D istrict C ourt and on appeal. Duhart v. United States , 556 F. App’x 897 , 899

– 90 (11th Cir. 2014) (per curiam) (unpublished). With this Court’s authorization, Mr. Duhart file d a second § 2255 motion

. I n it, he argued that the Supreme Court’s decision in Johnson v. United States , 576 U.S. __, 135 S. Ct. 2551 (2015), rendered his § 924(c) conviction invalid

. I n Johnson , the Supreme Court struck down the residual clause in the Armed Career Criminal Act ( “ ACCA ” ), 18 U.S.C. § 924(e)(2)(B)(ii) , as unconstitutionally vague

. 135 S. Ct. at 2563. That clause defined “violent felonies” as those “ involv [ing] conduct that presents a serious potential risk of physical injury to another. ” 18 U.S.C. § 924(e)(2)(B). Similar to the ACCA, § 924(c) also contains a residual clause, which defines a “ crime of violence ” as a felony that “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.” 18 U.S.C. § 924(c)(3)(B). Mr.

Case: 17-11476 Date Filed: 02/07/2020 Page: 4 of 105 Duhart argued that Johnson , by holding the ACC A’s residual clause was unconstitutionally vague , also invalidated § 924(c) ’s residual clause

. Separate from § 924(c) (3) ’s residual clause is its elements clause, which defines “ crime of violence ” as a felony that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Id. § 924(c)(3)(A). Mr. Duhart also argued that conspiracy to commit Hobbs Act robbery did not qualify as a crime of violence under § 924(c) (3) ’s elements clause because conspiracy does not require an overt act toward the commission of substantive Hobbs Act robbery. According to Mr. Duhart, b ecause Johnson invalidated § 924(c) (3) ’s residual clause, and because conspiracy to commit Hobbs Act robbery was not otherwise a “ crime of violence ” under § 924(c) (3) ’s elements clause, Count 3 could not stand

. The D istrict C ourt agreed with Mr. Duhart and vacated his § 924(c) conviction. The government appealed, arguing (1) that the D istrict C ourt was without jurisdiction over Mr. Duhart’s second § 2255 motion ; and (2) Johnson did
not invalidate § 924(c) (3) ’s residual clause. W e held the D istrict C ourt properly exercised jurisdiction over Mr. Duhart’s second § 2255 motion , but reverse d in light of our decision in In re Garrett , 908 F.3d 686 (11th Cir. 2018), which held
that Johnson did not invalidate § 924(c) (3) ’s residual clause. See Duhart , 752 F.

Case: 17-11476 Date Filed: 02/07/2020 Page: 5 of 106 App’x at 956 (citing Garrett , 908 F.3d at 689)

. Mr. Duhart petitioned the Supreme Court for certiorari.
II. Several months later the Supreme Court issued its decision in Davis , which struck down § 924(c) (3) ’s residual clause as unconstitutionally vague . 139 S. Ct.
at 2336. While our court has held that Davis announced a new rule of constitutional law retroactive to cases on collateral review, see In re Hammoud , 931 F.3d 1032, 103 7

– 3 8 (11th Cir. 2019), we hav e also recognized two important limitations to Davis ’s scope . First , Davis addressed only the constitutionality of § 924(c) convictions predicated on crimes of violence, while leaving undisturbed § 924(c) convictions predicated on drug trafficking crimes. See In re Navarro , 931 F.3d 1298, 1302 (11th Cir. 2019) (per curiam) (hol ding that § 924(c) conviction s

“ fully supported by [] drug

- trafficking crimes ” are “ outside the scope of Davis ”). Second, Davis invalidated § 924(c) (3)’s residual clause but left its elements clause intact. See Brown , 942 F.3d at 1075. On October 7, 2019, t he Supreme Court granted Mr. Duhart’s petition for certiorari , vacated our decision denying his second § 2255 motion, and remanded for further consideration in light of Davis

. Duhart v. United States , 140 S. Ct. 100 (2019). Though Davis now precludes liability under § 924(c) (3) ’s residual clause , our inquiry does not ordinarily end there

. After all, a conviction under § 924(c)

Case: 17-11476 Date Filed: 02/07/2020 Page: 6 of 107 remains valid if it is supported by a drug trafficking crime or if its predicate “crime of violence” otherwise qualifies under § 924(c)(3)’s elements clause

. See Brown , 942 F.3d at 1073

– 74

. Here, however, the government did not raise any alternative bases for Mr. Duhart’s § 924(c) convictio n in either its opening or reply brief , and thus waived any such argument on appeal

. See United States v. Ardley , 242 F.3d 989, 990 (11th Cir. 2001) (per curiam) (holding , in a case remanded from the Supreme Court , that issues not timely raised in the brie fs are deemed abandoned).
E ven if we consider ed alternative bases for Mr. Duhart’s § 924(c) conviction, this
court’s decision in Brown would require that we vacate his sentence because (1) the record conclusively establishes that Duhart’s conviction was not predicated on a drug trafficking crime; and (2) the sole underlying offense does not qualify as a “crime of violence” under § 924(c)(3)’s elements clause.
III.
T o prove an offense under § 924(c) (1)(A) , the government must establish that a defendant used or possessed a firearm in relation to and in furtherance of a “crime of violence” or a “drug trafficking crime.” 18 U.S.C. § 924(c)(1)(A). A conviction under § 924(c) “ does not require that a defendant be convicted of, or even charged with, the predicate offense. ” United States v. Frye , 402 F.3d 1123,
1127 (11th Cir. 2005) (per curiam)

. Our precedent provides that when determining which predicate offenses underlie a de fendant’s § 924(c) conviction, we may refer

Case: 17-11476 Date Filed: 02/07/2020 Page: 7 of 108 to a defendant’s indictment , plea agreement, plea colloquy, and attendant factual proffer. See Navarro , 931 F.3d at 1302 (holding that defendant’s factual proffer established that his § 924(c) charge was predica ted on a drug trafficking crime , thus precluding relief under Davis )

. This court’s decision in Brown squarely establishes that Duhart’s § 924(c) conviction was predicated not on a drug trafficking crime, but on a crime of violence

. In Brown , the indict ment charged the defendant with conspiracy to commit Hobbs Act r obbery , two drug trafficking crimes , and a § 924(c)(1)(A) offense

. 942 F.3d at 1070

– 71. The indictment specified that the § 924(c) charge was predicated on both a crime of violence and drug trafficking crimes

. Id. The defendant ’s plea agreement , however, identified only a crime of violence

— conspiracy to commit Hobbs Act robbery

— as the sole predicate for his § 924(c) charge . D uring the defendant ’s plea colloquy , the court explained that the § 924(c) charge to which he pled guilty was based only on a crime of violence. Id. at 10 71

. Because the defendant “pled guilty to a § 924(c)(1)(A) offense predicated only on conspiracy to commit Hobbs Act robbery,” we concluded that hi s § 924(c) (1)(A) conviction was not otherwise supported by a drug trafficking crime. Id. at 1074

– 75.
Mr. Duhart’s case is materially indistinguishable from Brown

. His indictment lists both a crime of violence and a drug trafficking crime as predicates

Case: 17-11476 Date Filed: 02/07/2020 Page: 8 of 109 for his § 924(c) count, but his plea agreement identifies only a predicate crime of violence

. And d uring Mr. Duhart’s plea colloquy, the court explained that his § 924(c) charge was based on a crime of violence , while making no mention of a predicate drug trafficking crime

. On these facts, it is plain that Mr. Duhart’s § 924(c)(1)(A) conviction was predicated only on a crime of violence

. See Brown , 942 F.3d at 1074

– 75.
I V . That brings us to whether the offense underlying Mr. Duhart’s § 924(c) conviction otherwise qualifies as a crime of violence under § 924(c)(3)’s elements clause. As an initial matter, Mr. Duhart’s plea agreement and colloquy make clear that the design ated “crime of violence” underlying his § 924(c) conviction was conspiracy to commit Hobbs Act robbery rather than substantive Hobbs Act robbery. This distinction is important, because this court’s precedent provides that substantive Hobbs Act robbery con stitutes a crime of violence under § 924(c)(3)’s elements clause. In re Fleur , 824 F.3d 1337, 1340

– 41 (11th Cir. 2016) (per curiam)

. In contrast, this Court in Brown held that conspiracy to commit Hobbs Act robbery does not categorically qualify as a crime of violence under § 924(c)(3)’s elements clause. 942 F.3d at 1075

– 76

. Based on our precedent,
then , the sole predicate offense for Duhart’s § 924(c) conviction

— co nspiracy to commit Hobbs Act r obbery

— cannot support his conviction under § 924(c)(3)’s

Case: 17-11476 Date Filed: 02/07/2020 Page: 9 of 1010 elements clause. And because Duhart ’s § 924(c) conviction cannot otherwise rely

on § 924(c) (3)’s now

- defunct residual clause, his conviction for Count 3 is invalid
and must be vacated.
We thus AFFIRM the district court’s grant of Mr. Duhart’s § 2255 motion and REMAND for resentencing. We are mindful that Mr. Duhart is now serving a sentence for a crime that is no longer valid. T he district court is therefore directed
to resentence him on an expedited basis.

Case: 17-11476 Date Filed: 02/07/2020 Page: 10 of 10