IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

THERRAL HATFIELD, ) ) Petitioner, ) ) v. ) CASE NO. 2:20-CV-439-WKW ) [WO] UNITED STATES OF AMERICA, ) ) Respondent. )

MEMORANDUM OPINION AND ORDER Petitioner Therral Hatfield obtained authorization under

(b)(3)(a) from the Eleventh Circuit Court of Appeals to file a second or successive

motion. This is that motion. (Doc. # 1.) In light of the United States Supreme Court’s decision in Davis v. United States,

(2019), Hatfield moves the court to vacate his conviction and sentence for using a firearm in connection with a “crime of violence,” in violation of

(c). The Government agrees that Hatfield is entitled to relief on his § 2255 motion. (Doc. # 8, at 16.) Based upon careful consideration of the briefing and the governing law, Hatfield’s motion is due to be granted. In November 2010, a jury returned a verdict finding Hatfield guilty on counts one, two, and three of the superseding indictment. United States v. Hatfield, No. 2:10-CR-55-WKW (M.D. Ala. 2011) (Doc. # 126). Count three, which is the subject of Hatfield’s instant motion, charged him with using a firearm in connection with a crime of violence. Id. (Doc. # 48). Hatfield’s convictions for kidnapping, in

violation of

(a)(1), on counts one and two served as the predicate crime of violence supporting his § 924(c)(1)(A) conviction. Id. (Doc. # 48). Pursuant to the guilty verdict, Hatfield was sentenced to 384 months’ imprisonment,

consisting of 300 months on counts one and two to run concurrently, and eighty-four months on count three to run consecutively to counts one and two. Id. (Doc. # 186, at 2). Eight years after Hatfield was sentenced, in Davis, the Supreme Court held

that § 924(c)’s residual clause was unconstitutionally vague.

. In striking down that part of the statute, the Davis court reasoned: “Respect for due process and the separation of powers suggests a court may not, in order to save

Congress the trouble of having to write a new law, construe a criminal statute to penalize conduct that it does not clearly proscribe.”

. And in In re Hammoud, the Eleventh Circuit held that Davis announced a new substantive rule of constitutional law that applies in cases on collateral review.

(11th

Cir. 2019). Based upon Davis and In Re Hammoud, Hatfield filed this § 2255 motion. Hatfield is correct that, under Davis and In Re Hammoud, his convictions for

kidnapping no longer count as predicate offenses under § 924(c)’s residual clause. With the residual clause off the table, the parties agree that Hatfield is entitled to relief because kidnapping does not qualify as a crime of violence under § 924(c)’s

“elements clause.” See § 924(c)(3)(A) (defining crime of violence as a crime that “[h]as as an element the use, attempted use, or threatened use of physical force against the person or property of another”). That agreement, at least as confined to

the facts of this case, finds support in Eleventh Circuit precedent. Specifically, in United States v. Gillis, the Eleventh Circuit held that a conviction for kidnapping under § 1201(a) does not necessarily entail the “use, attempted use, or threatened use of physical force against property or against the

person of another” for the purposes of a conviction pursuant to

.

, 1210 (11th Cir. 2019) (quotations omitted). While the court reached this conclusion in the context of § 373’s “force clause,” it noted that § 373 and §

924(c)(3)(A), the statute at issue here, shared nearly identical language. See Id. at 1199 – 1200. Thus, the holding in Gillis dictates that Hatfield’s convictions for federal kidnapping do not qualify as a crime of violence under § 924(c)(3)(A). This finding is consistent with how other district courts in this circuit have

interpreted Gillis when deciding whether a conviction for federal kidnapping constitutes a crime of violence under § 924(c)(3)(A). See Robinson v. United States, No. 12-cr-90-KDC,

, at *7 (S.D. Ala. Sept. 30, 2019) (finding, in

light of Gillis, that “federal kidnapping under § 1201(a)(1) does not categorically qualify as a crime of violence under the elements clause in § 924(c)(3)(A)”); Hines v. United States, No. 16-cv-511-MHT,

(M.D. Ala. Sept. 30,

2019) (same); United States v. Dugas, No. 3-cr-29-MCR,

, at *3 (N.D. Fla. Jan. 31, 2020) (same). To sum up, the court finds that the habeas petition should be granted as to

Hatfield’s § 924(c) conviction and sentence, first, based on the United States Supreme Court’s holding in Davis,

, that § 924(c)’s residual clause is unconstitutionally vague; and second because Hatfield’s underlying convictions for kidnapping do not qualify as a crime of violence under the elements clause of §

924(c)(3)(A). Accordingly, it is ORDERED as follows: (1) Hatfield’s

motion to vacate, set aside, or correct his sentence (Doc. # 1) is GRANTED.

(2) Hatfield’s

(c) judgment of conviction (Count Three) in United States v. Hatfield, No. 2:10-CR-55-WKW (M.D. Ala. 2011) (Doc. # 186), is VACATED. (3) The sentence, entered in United States v. Hatfield, No. 2:10-CR-55-WKW

(M.D. Ala. 2011), is VACATED. See United States v. Davis,

, 278 (5th Cir. 2019) (vacating the defendants’ 924(c) judgments of conviction and remanding to the district court for resentencing in full). (4) The Clerk of the Court is DIRECTED to file this Memorandum Opinion and Order, along with the accompanying Final Judgment, in United States v.

Hatfield, No. 2:10-CR-55-WKW (M.D. Ala. 2011). (5) A resentencing hearing will be set by separate order in Hatfield’s criminal case.

(6) The Clerk of the Court is DIRECTED to furnish copies of this Order to counsel, to the United States Probation Office, and to the United States Marshal. An appropriate judgment will be entered. DONE this 4th day of November, 2020.

/s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE