NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 17-2705 ____________

UNITED STATES OF AMERICA

v.

LAMONT LAPRADE, aka Lamont Laprade El, Appellant ____________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2-10-cr-00019-002) District Judge: Honorable Donetta W. Ambrose ____________

Submitted Under Third Circuit L.A.R. 34.1(a) May 2, 2018

Before: SMITH, Chief Judge, HARDIMAN, and RESTREPO, Circuit Judges.

(Filed: May 9, 2018) ____________

OPINION * ____________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. HARDIMAN, Circuit Judge.

Lamont LaPrade appeals a judgment of sentence that was amended as a result of a

successful motion under

. Because his only argument is one he

originally raised in a separate, still-pending § 2255 motion, we will affirm.

I

LaPrade was sentenced to 190 months’ imprisonment after a jury in the United

States District Court for the Western District of Pennsylvania convicted him on charges

stemming from an armed bank robbery. The only count of the indictment relevant to this

appeal (Count 6), charged LaPrade with using and carrying a firearm “during and in

relation to” a crime of violence in violation of

(c)(1)(A), which carries a

mandatory minimum sentence of 60 months’ imprisonment.

§ 924(c)(1)(A)(i). The

mandatory minimum increases to 84 months if the firearm is brandished, id.

§ 924(c)(1)(A)(ii), and 120 months if it is discharged, id. § 924(c)(1)(A)(iii).

Having found that LaPrade discharged his .45 caliber handgun during an

attempted escape following the robbery, the District Court sentenced him to 120 months’

imprisonment. That fact, however, was never put to the jury. The Court had instructed the

jury that in order to convict LaPrade on Count 6, it would suffice to find only that he had

“used or carried” a firearm during and in relation to a crime of violence. United States v.

LaPrade,

, 204 n.11 (3d Cir. 2016). Accordingly, “[t]he jury never

made a finding that LaPrade actually discharged the gun, or even brandished it.”

. LaPrade appealed his conviction, which we affirmed. See United States v. Laprade,

(3d Cir. 2013).

2 Within the 90-day period in which LaPrade could file a petition for a writ of

certiorari, the Supreme Court decided Alleyne v. United States,

(2013).

There, the Court held that “if a defendant is convicted of using or carrying a firearm

during and in relation to a crime of violence, but is instead sentenced for brandishing a

firearm, the defendant’s Sixth Amendment right to be tried by a jury for the crime of

brandishing a firearm has been violated.” United States v. Lewis,

(3d

Cir. 2015) (en banc) (citing Alleyne, 570 U.S. at 116–17). Relying on Alleyne, LaPrade

filed a motion with the District Court under

seeking to vacate, set aside,

or correct his sentence. The District Court denied the motion. We reversed and remanded

for resentencing, concluding that the District Court had committed “an obvious Alleyne

error.” LaPrade,

.

While that appeal was pending, the Supreme Court decided Johnson v. United

States,

(2015). In that case, the Court held that the so-called residual

clause of the Armed Career Criminal Act (ACCA) was unconstitutionally vague.

; see 18 U.S.C § 924(e)(2)(B)(ii). LaPrade applied to this Court under

(b) for leave to file a successive § 2255 motion based on Johnson. We

immediately stayed consideration of LaPrade’s application, and that stay remains in

effect.

The following month, LaPrade protectively filed his as-yet unauthorized § 2255

motion with the District Court. Citing the similarity of the ACCA’s residual clause to the

residual clause in

(c), see

§ 924(c)(3)(B), LaPrade argued that the

latter was also void for vagueness, so his armed bank robbery conviction could not serve

3 as a predicate crime of violence for purposes of § 924(c)(1)(A) as charged in Count 6.

The District Court stayed its adjudication of LaPrade’s new § 2255 motion pending this

Court’s ruling on his application under § 2244(b).

With the stay on LaPrade’s protective filing still in effect, the District Court held

the resentencing hearing that this Court had ordered based on his initial § 2255 motion.

At the hearing, LaPrade challenged his conviction and sentence on Count 6, raising the

same Johnson argument contained in his subsequent § 2255 motion which, as noted, had

not yet been authorized by this Court. The District Court agreed with the Government

that the argument fell outside the “defined purpose of th[e] proceeding.” App. 62. The

Court announced that it would reduce LaPrade’s sentence for Count 6 from 120 to 60

months’ imprisonment to correct the Alleyne error—thereby reducing his aggregate

sentence to 130 months—but would leave the sentence for the other counts undisturbed.

After noting that LaPrade’s Johnson argument would be considered if and when his

successive § 2255 motion was adjudicated, the Court asked LaPrade if he wanted the stay

on that motion to be lifted. LaPrade answered no, the Court agreed to maintain the stay,

and LaPrade timely appealed his amended sentence.

4 II 1

LaPrade argues on appeal—as he did in his as-yet unauthorized § 2255 motion and

again at his resentencing—that Johnson required the District Court to vacate his

conviction and sentence on Count 6. Whatever the merits of this argument, the District

Court did not err in refusing to consider it, for two reasons.

First, when we remanded LaPrade’s case for resentencing, we did so for a limited

purpose: to correct the Alleyne error infecting his sentence on Count 6. The mandate on

remand directed the District Court to proceed “in accordance with the opinion,”

Judgment at 2, LaPrade,

(3d Cir. 2016) (No. 15-1700). Our opinion

addressed only the Alleyne issue. See LaPrade,

n.3. As LaPrade’s

Johnson argument was not before us, our opinion did not contemplate—let alone

instruct—its consideration on remand. The opinion concluded by instructing the District

Court “to grant [LaPrade’s § 2255] motion and resentence LaPrade in accordance with

this opinion and in consideration of

(c)(1)(A) and the Sentencing

Guidelines.”

; see also

(stating that remand would be ordered “for re-

sentencing to correct the Alleyne error”).

Second, under § 2244(b), the District Court lacked—and will continue to lack—

jurisdiction to consider LaPrade’s Johnson argument unless and until this Court grants his

1 The District Court had jurisdiction under

and 2255. Our jurisdiction lies under

, 2253, and 2255. We review the sentence imposed by the District Court for abuse of discretion. United States v. Tomko,

(3d Cir. 2009) (en banc).

5 still-pending application for leave to file a successive § 2255 motion. See Robinson v.

Johnson,

, 139–40 (3d Cir. 2002). To hold otherwise would allow LaPrade

to make an end run around the statutory bar on unauthorized successive § 2255 motions

by raising an as-yet unauthorized claim in an unrelated § 2255 proceeding. See

(b)(3)(A); Robinson,

(“It would circumvent the intent of the

gatekeeping function of § 2244 for a district court to proceed to rule on the merits of a

second or successive petition . . . before the court of appeals has made a decision whether

to let the petition . . . proceed in the district court.”). 2

III

For the reasons stated, we will affirm the District Court’s judgment of sentence.

2 As noted, LaPrade challenges his conviction under

(c)(1)(A), not just his sentence. LaPrade followed the proper course by applying to this Court for leave to file a successive § 2255 motion challenging his conviction with the District Court. If his application is granted, he will have the opportunity to challenge both his conviction and his sentence.

6