UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-6359

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMES EDWARD ROSE, a/k/a Kwali Smith, a/k/a Buck,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Liam O’Grady, Senior District Judge. (1:07-cr-00503-LO-1; 1:16-cv-00776- LO)

Submitted: November 17, 2020 Decided: January 6, 2021

Before MOTZ and KEENAN, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Vacated and remanded in part and dismissed in part by unpublished per curiam opinion.

Geremy C. Kamens, Federal Public Defender, Frances H. Pratt, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

In 2008, a jury convicted James Edward Rose of, among other offenses, three counts

of substantive Hobbs Act robbery (Counts 3, 5, and 9) and one count of attempted Hobbs

Act robbery (Count 7), all in violation of

(a), and four counts of

brandishing or discharging a firearm during and in relation to a crime of violence, in

violation of

(c)(1)(A)(ii)-(iii) (Counts 4, 6, 8, and 10). The underlying

crimes of violence for the § 924(c) convictions in Counts 4, 6, and 10 were the substantive

Hobbs Act robbery convictions in Counts 3, 5, and 9, and the underlying crime of violence

for the § 924(c) conviction in Count 8 was the attempted Hobbs Act robbery conviction in

Count 7.

The district court sentenced Rose to a total term of 1120 months’ imprisonment,

which included a 300-month consecutive sentence for the § 924(c) conviction in Count 8.

We affirmed. United States v. Rose,

(4th Cir. 2009) (No. 08-4762). The

district court denied Rose’s first

motion on the merits, and we denied a

certificate of appealability and dismissed Rose’s appeal. United States v. Rose,

(4th Cir. 2013) (No. 12-7449).

In 2016, we granted Rose authorization to file a successive § 2255 motion based on

Johnson v. United States,

(2015), which declared the residual clause

of the Armed Career Criminal Act (ACCA),

(e)(2)(B)(ii),

unconstitutionally vague. In his authorized, successive § 2255 motion, Rose argued that,

after Johnson, his substantive and attempted Hobbs Act robbery convictions no longer

qualify as crimes of violence under § 924(c). While Rose’s motion was pending, the

2 Supreme Court held that § 924(c)’s residual clause, like the ACCA’s residual clause, is

unconstitutionally vague. United States v. Davis,

(2019); accord

United States v. Simms,

(4th Cir.) (en banc), cert. denied,

(2019). Thus, after Davis, Rose’s convictions for substantive and attempted Hobbs

Act robbery can only support his § 924(c) convictions if those offenses qualify as crimes

of violence under § 924(c)’s force clause.

After receiving supplemental briefing in light of this development, the district court

denied Rose’s motion to vacate Counts 4, 6, and 10 based on our post-Davis decision in

United States v. Mathis,

(4th Cir. 2019), holding that substantive

Hobbs Act robbery meets the requirements of § 924(c)’s force clause. The court also

denied Rose’s motion to vacate Count 8, concluding that attempted Hobbs Act robbery

categorically qualifies as a crime of violence under the force clause but recognizing that

we had not yet decided the issue.

Rose now seeks to appeal the district court’s order denying relief on his authorized,

successive

motion. The order is not appealable unless a circuit justice or

judge issues a certificate of appealability. See

(c)(1)(B). A certificate of

appealability will not issue absent “a substantial showing of the denial of a constitutional

right.”

(c)(2). Where, as here, the district court denies relief on the merits,

a prisoner satisfies this standard by demonstrating that reasonable jurists could find the

district court’s assessment of the constitutional claims debatable or wrong. See Buck v.

Davis,

(2017).

3 Rose challenges the district court’s denial of his motion to vacate Count 8,

maintaining that attempted Hobbs Act robbery is no longer a crime of violence after Davis

because the offense does not qualify under § 924(c)’s force clause. We agree. After the

district court entered its decision, we held that attempted Hobbs Act robbery is not

categorically a crime of violence under § 924(c)’s force clause. United States v. Taylor,

(4th Cir. 2020). Accordingly, we grant a certificate of appealability in

part, reverse the district court’s denial of Rose’s motion to vacate Count 8, vacate the

§ 924(c) conviction in Count 8, and remand for resentencing. See id. But because Rose

does not challenge the remainder of the court’s order, we deny a certificate of appealability

in part and dismiss the appeal of the portion of the court’s order denying Rose’s motion to

vacate Counts 4, 6, and 10. See 4th Cir. R. 34(b); see also Jackson v. Lightsey,

(4th Cir. 2014) (“The informal brief is an important document; under Fourth

Circuit rules, our review is limited to issues preserved in that brief.”).

We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

VACATED AND REMANDED IN PART, DISMISSED IN PART

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