Tyrone Kevin Smith v. USA

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12960
Non-Argument Calendar
____________________
TYRONE KEVIN SMITH,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:20-cv-81291-RLR
____________________
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2 Opinion of the Court 21-12960
Before J ORDAN, B RANCH, and B RASHER , Circuit Judges.
PER CURIAM:
Tyrone Smith appeals the district court’s denial of his mo-
tion to vacate his conviction based on his contention that his 18
U.S.C. § 924(o) conviction is unconstitutional. Specifically, Smith
contends that he was convicted under the unconstitutional residual
clause of Section 924(c)(3) and that his conviction for attempted
armed bank robbery is not a “crime of violence” under the still-
constitutional elements clause of Section 924(c)(3). We disagree
and affirm.
Smith and his brothers were caught by the FBI while plan-
ning to rob a bank at gunpoint. In 2015, Smith pleaded guilty to
three crimes arising from this arrest: conspiracy to commit armed
bank robbery in violation of 18 U.S.C. § 371, attempted armed bank
robbery in violation of 18 U.S.C. § 2113(a) and 2113(d), and con-
spiracy to carry and use a firearm during a crime of violence in vi-
olation of 18 U.S.C. § 924(o). This appeal is about the third convic-
tion—conspiracy to carry or use a firearm during a crime of vio-
lence.
Section 924(o) makes it a crime to conspire to commit an
offense under Section 924(c), which itself makes it a crime to carry
or use a firearm “during and in relation to any crime of violence or
drug trafficking crime.” 18 U.S.C. § 924(c)(1)(A). The statute de-
fines a “crime of violence” by reference to two clauses. Under what
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21-12960 Opinion of the Court 3
we call the “elements clause,” the statute says that a crime of vio-
lence is a felony that “(A) 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). Under the “residual clause,” the stat-
ute provides that a crime of violence is a felony “(B) that by its na-
ture, involves a substantial risk that physical force against the per-
son or property of another may be used in the course of commit-
ting the offense.”
Id. § 924(c)(3)(B).
Turning back to Smith’s case, the record does not reflect
why the parties and district court believed that Smith’s underlying
offense—attempted bank robbery—was a “crime of violence.” No
one discussed this definitional issue during his guilty plea proceed-
ings or his sentencing proceedings. Likewise, the parties’ written
plea agreement did not address why they believed attempted bank
robbery was a crime of violence. Instead, the parties and court
simply assumed that Smith’s conviction for attempted bank rob-
bery under 18 U.S.C. § 2113(a) and 2113(d) was a crime of violence
that could support a conviction under Section 924(o).
After Smith’s conviction became final, the Supreme Court
held that the statute’s residual clause—Section 924(c)(3)(B)—is un-
constitutionally vague in
United States v. Davis, 588 U.S. ___, 139
S. Ct. 2319, 2336 (2019).
Davis announced a new substantive rule
that applies retroactively to convictions that are already final.
In re
Hammoud, 931 F.3d 1032, 1038–39 (11th Cir. 2019).
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4 Opinion of the Court 21-12960
Based on
Davis, Smith filed a motion to vacate his long-final
Section 924(o) conviction under 28 U.S.C. § 2255. The district court
denied Smith’s motion, and this is his appeal.
We have held that a movant like Smith—who argues that
his conviction is unconstitutional under the Supreme Court’s hold-
ing in
Davis—must “bear the burden of showing that he is actually
entitled to relief on his
Davis claim, meaning he will have to show
that his § 924(c) [or § 924(o)] conviction resulted from application
of solely the [now-unconstitutional] residual clause.”
Hammoud,
931 F.3d at 1041;
see also Beeman v. United States, 871 F.3d 1215,
1221–25 (11th Cir. 2017). Sometimes, this kind of question can be
resolved by a “finding of historical fact”—in other words, there
may be record evidence that the unconstitutional clause did or did
not lead to a conviction or sentence.
Williams v. United States, 985
F.3d 813, 816 (11th Cir. 2021). Sometimes, the question must be
resolved “by reference to legal principles alone”—that is, parsing
the state of the law to determine whether the residual clause af-
fected the conviction or sentence.
Id. In any event, we have been
clear that a district court should deny a Section 2255 motion if the
movant cannot meet his burden to establish that his conviction was
based on the now-unconstitutional residual clause.
Id.
The government argues that Smith cannot establish that his
conviction was based on the residual clause. We agree. There is no
record evidence that suggests the now-unconstitutional residual
clause was the basis for Smith’s conviction. And Smith has not
pointed to any legal principles or caselaw at the time of this
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21-12960 Opinion of the Court 5
conviction that would suggest the residual clause was the basis for
his conviction. The bank robbery statute under which Smith
pleaded guilty punishes someone who, “in committing, or in at-
tempting to commit” bank robbery “assaults any person, or puts in
jeopardy the life of any person by the use of a dangerous weapon
or device.” 18 U.S.C. § 2113(d). Given these elements and the lack
of caselaw saying otherwise, it is just as likely that the parties and
court concluded that Smith’s crime was a crime of violence under
the elements clause as the residual clause.
See, e.g.,
United States
v. Lockley, 632 F.3d 1238, 1245 (11th Cir. 2011) (holding that at-
tempted robbery under Florida law satisfied the Sentencing Guide-
lines’ similar, but not identical, elements clause).
Smith contends that he should not be required to establish
that his conviction was based on the now-unconstitutional residual
clause to get relief under
Davis. He makes two arguments on this
front, but neither is persuasive.
First, Smith argues that the government has waived the is-
sue of his inability to satisfy this burden because it previously joined
him in moving this court to reverse the district court’s decision.
We denied that motion. We are not required to accept the govern-
ment’s concession of error “when the law and record do not justify
it.”
United States v. Linville, 228 F.3d 1330, 1331 n.2 (11th Cir.
2000). And we have held that a concession of law is not binding on
us.
United States v. Colston, 4 F.4th 1179, 1187 (11th Cir. 2021).
After we denied the parties’ joint motion, the government filed a
brief that argued that we should affirm because Smith had not met
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6 Opinion of the Court 21-12960
his burden to establish that the residual clause affected his convic-
tion. That issue has, therefore, not been waived.
Second, Smith argues that we should consider the state of
the law
today to determine whether his conviction was based on
the residual clause. And he says today’s caselaw—particularly
United States v. Taylor, 142 S. Ct. 2015 (2022)—establishes that he
could not have been convicted under the elements clause because
(he says) attempted bank robbery would not count as a crime of
violence under today’s caselaw. Therefore, he reasons, he must
have been convicted under the residual clause.
Smith’s argument is inconsistent with our precedents. In
Hammoud, we specifically held that a movant in Smith’s position
must “show that his § 924(c) [or § 924(o)] conviction resulted from
application of solely the residual clause.” 931 F.3d at 1041. We cited
our decision in
Beeman for that proposition.
Id. And, in
Beeman,
we held that a movant could not satisfy his burden when “there is
nothing in the record suggesting that the district court relied on
only the residual clause,” and he “pointed to no precedent in 2009
holding, or otherwise making obvious, that [his underlying crime]
qualified as a violent felony only under the residual clause.”
Bee-
man, 871 F.3d at 1224. We “note[d] that Beeman has likewise
pointed to no precedent since 2009 so holding.”
Id. at 1224 n.5. But
we explained that “even if such precedent had been announced
since Beeman's sentencing hearing, it would not answer the ques-
tion before us” because a court’s “decision today that [the underly-
ing crime] no longer qualifies under present law as a violent felony
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21-12960 Opinion of the Court 7
under the elements clause (and thus could now qualify only under
the defunct residual clause) would be a decision that casts very little
light, if any, on the key question of historical fact here: whether in
2009 Beeman was, in fact, sentenced under the residual clause
only.”
Id.
Smith points out that we considered the current state of the
law in answering a similar question in
Alvarado-Linares v. United
States, 44 F.4th 1334, 1341 (11th Cir. 2022). But we did so only be-
cause “the parties d[id] not distinguish between the state of the law
at the time of the conviction and the state of the law today.”
Id. We
explained that we were considering recent judicial decisions only
to “decide this appeal as the parties have litigated it.”
Id. Unlike in
Alvarado-Linares, the government here has asked us to distinguish
between the state of the law at the time of Smith’s conviction in
2015 and the state of the law today. Our precedents compel us to
do so.
Smith cannot meet his burden of showing that he was more
likely than not convicted solely under the residual clause.
AFFIRMED.
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