Opinion
No. 17-14806
11-14-2019
KERINO BELIZAIRE, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee.
[DO NOT PUBLISH] Non-Argument Calendar D.C. Docket Nos. 0:16-cv-61366-DMM, 0:13-cr-60006-DMM-2 Appeal from the United States District Court for the Southern District of Florida Before TJOFLAT, BRANCH and JULIE CARNES, Circuit Judges. PER CURIAM:
On January 31, 2013, Kerino Belizaire pled guilty to a two-count information charging him in Count 1 with conspiracy to commit a Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (Count 1), and in Count 2 with using and carrying a firearm "during and in relation to a crime of violence," i.e., the conspiracy to commit Hobbs Act robbery alleged in Count 1, in violation of 18 U.S.C. § 924(c)(1)(A). The District Court sentenced Belizaire to imprisonment for a term of 27 months on Count 1 and a consecutive term of 60 months on Count 2, for a total term of 87 months.
On July 29, 2013, Belizaire moved the District Court pursuant to 28 U.S.C. § 2255 to vacate his Count 2 sentence on the ground that the "residual" or "risk-of-force" clause in § 924(c)(3)(B) was unconstitutional in light of Johnson v. United States, 135 S. Ct. 2551 (2015), which struck down the residual clause of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2))B)((ii). He further argued that if § 924(c)'s residual clause was invalidated, his companion conviction for conspiracy to commit Hobbs Act robbery would not qualify as a "crime of violence" for § 924(c) purposes. The District Court concluded that Johnson's holding did not apply to § 924(c)(3)(B) and denied Belizaire's motion. It then granted a certificate of appealability on the issue of whether Johnson applies to § 924(c)(3)(B).
Although Belizaire has apparently been released from physical custody, his § 2255 motion does not fail on "in custody" grounds because he filed it when he was still imprisoned, and he is still subject to a four-year term of supervised release. See 28 U.S.C. § 2241(c)(3); Carafas v. LaVallee, 391 U.S. 234, 238 (1968); Maleng v. Cook, 490 U.S. 488, 491-92 (1989). --------
While Belizaire's appeal was pending, the Supreme Court invalidated the residual clause in § 924(c)(3)(B), finding that it was unconstitutionally vague. United States v. Davis, 139 S. Ct. 2319, 2336 (2019). Shortly thereafter, we held that the Supreme Court's ruling in Davis announced a new substantive rule of constitutional law, made retroactive to other cases on collateral review. In re Hammoud, 931 F.3d 1032, 1037-39 (11th Cir. 2019). We therefore vacate the District Court's decision and remand to the case to allow the Court to determine whether Belizaire is entitled to relief under § 2255 in light of the above decisions. See Antoine v. United States, — F. App'x —, No. 17-14807, 2019 WL 3526408 (11th Cir. Aug. 2, 2019) (Mem.) (vacating and remanding the appeal of Belizaire's co-conspirator, who was charged under the same statute and presented identical arguments on appeal).
VACATED and REMANDED.