United States of America v. Clarence Lee Davis

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CLARENCE LEE DAVIS,
Defendant - Appellant.
No. 20-5119
(D.C. Nos. 4:20-CV-00235-CVE-JFJ
& 4:04-CR-00085-CVE-2)
(N.D. Okla.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BACHARACH, MURPHY, and CARSON, Circuit Judges.
_________________________________
This case stems from Mr. Clarence Lee Davis’s conviction for using
a firearm during a crime of violence. See 18 U.S.C. § 924(c)(1). Mr. Davis
twice moved to vacate his conviction and sentence under 28 U.S.C. § 2255.
The federal district court dismissed the second motion, ruling that Mr.
* Oral argument would not help us decide the appeal, so we have
decided the appeal based on the record and the parties’ briefs. See Fed. R.
App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
FILED
United States Court of Appeals
Tenth Circuit
September 10, 2021
Christopher M. Wolpert
Clerk of Court
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Davis had not based his second § 2255 motion on a new rule of
constitutional law. See 28 U.S.C. § 2255(h). We affirm.
Mr. Davis urges vacatur of (1) his § 924(c) conviction based on the
absence of a crime of violence and (2) his sentence based on improper
enhancement under sentencing guidelines. For both arguments, Mr. Davis
asserts reliance on a new rule of constitutional law.
First, Mr. Davis argues that his § 924(c) conviction should be
vacated. Section 924(c) provides a mandatory minimum sentence for using
a firearm in relation to a crime of violence. 28 U.S.C. § 924(c)(1). At the
time of Mr. Davis’s conviction, a “crime of violence” was defined as an
offense involving either
 “the use, attempted use, or threatened use of physical force”
(the elements clause) or
 “a substantial risk” of the use of physical force (the residual
clause).
28 U.S.C. § 924(c)(3).
After Mr. Davis was convicted, the Supreme Court held that the
residual clause in another statute was unconstitutionally vague. Johnson v.
United States, 576 U.S. 591, 601–02, 606 (2015). The Supreme Court later
extended that holding to § 924(c)’s residual clause in United States v.
Davis, 139 S. Ct. 2319, 2336 (2019). Under Davis, a § 924(c) conviction is
invalid when the underlying crime would qualify as a “crime of violence”
only under the residual clause. Id. But a § 924(c) conviction can be based
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on conduct constituting a crime of violence under the elements clause. The
question here is whether Mr. Davis’s conduct would have fit § 924(c)’s
elements clause.
Mr. Davis was convicted of three offenses:
1. conspiring to commit an offense against the United States
under 18 U.S.C. § 371 (count one)
2. attempting armed bank robbery under 18 U.S.C. § 2113(a)
(count two)
3. using a firearm during and in relation to a crime of violence
under 18 U.S.C. § 924(c) (count three)
He challenges only the third conviction (§ 924(c)), arguing that the
conspiracy (count one) cannot qualify as a predicate crime of violence
under the elements clause.
But Mr. Davis mistakenly assumes that the crime of violence
underlying his § 924(c) conviction consisted of the conspiracy (count one).
The Second Superseding Indictment states that the crime of violence was in
fact attempted armed bank robbery (count two). And in several unpublished
opinions, we have concluded that attempted armed bank robbery and armed
bank robbery qualify as crimes of violence under § 924(c)’s elements
clause. See, e.g., United States v. Rinker, 746 F. App’x 769, 771–72 (10th
Cir. 2018); United States v. Hill, 745 F. App’x 77, 78–79 (10th Cir. 2018);
United States v. Smith, 730 F. App’x 710, 711 (10th Cir. 2018). Mr. Davis
supplies no reason to question these opinions.
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Mr. Davis also argues that the jury instructions allowed the jury to
find attempted armed bank robbery (count two) from conspiracy (count
one). Mr. Davis is correct. Jury Instruction No. 22 allowed such a finding.
But Jury Instruction No. 22 does not conflict with Davis v. United
States. In Davis, the Supreme Court affirmed the Fifth Circuit’s conclusion
that a conspiracy count alone could not suffice as a predicate offense for a
§ 924(c) conviction. 139 S. Ct. 2319, 2325, 2336 (2019). That’s not the
case here: The jury found Mr. Davis guilty of attempted armed bank
robbery in addition to conspiracy. Regardless of how the jury found
attempted armed bank robbery, this finding would satisfy § 924(c)’s
elements clause. 1
Second, Mr. Davis challenges his sentence, which was based on
enhancement under a guideline provision for crimes of violence. When Mr.
Davis was sentenced, the guideline (like § 924(c)) provided two ways for
an offense to qualify as a crime of violence:
1. the elements clause
2. the residual clause
1 Because we conclude that Mr. Davis’s conviction for attempted
armed bank robbery satisfied § 924(c), we need not address the
government’s denial of actual prejudice.
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See U.S.S.G. § 4B1.2 (2004). 2 Mr. Davis again argues that his offense
could qualify as a crime of violence only under the residual clause.
But Mr. Davis is pressing this argument through a second motion
under § 2255. He can do so only if he’s relying on a new rule of
constitutional law. 28 U.S.C. § 2255(h)(2). He isn’t. Mr. Davis points to a
Supreme Court opinion treating a statute as unconstitutionally vague, but
that opinion does not state a new rule for a sentencing guideline with
similar language. United States v. Pullen, 913 F.3d 1270, 1284–85 (10th
Cir. 2019). So Mr. Davis can’t pursue this claim through a second motion
under § 2255. 3
Affirmed.
Entered for the Court
Robert E. Bacharach
Circuit Judge
2 The guideline was amended in 2016 and no longer includes language
resembling the residual clause. See U.S.S.G. § 4B1.2 (2016).
3 In a supplemental brief, Mr. Davis argues that reasonable jurists
could debate the classification of his prior state convictions as crimes of
violence for purposes of a sentence enhancement. But we do not address
this argument because Mr. Davis did not make it in district court. See
Fairchild v. Workman, 579 F.3d 1134, 1144 (10th Cir. 2009) (stating that
“we ordinarily do not decide issues raised for the first time on appeal”).
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