UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-6207

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAVID RICARDO STEWART,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, District Judge. (1:11-cr-00156-CCE-2)

Submitted: December 16, 2020 Decided: January 7, 2021

Before MOTZ and FLOYD, Circuit Judges, and SHEDD, Senior Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

David Ricardo Stewart, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.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

David Ricardo Stewart 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).

A jury convicted Stewart of one count each of attempted interference with

commerce by robbery, in violation of

, 1951(a) (“attempted Hobbs Act

robbery conviction”), and brandishing a firearm during and in relation to a crime of

violence, in violation of

, 924(c)(1)(A)(ii) (“firearms conviction”). Stewart

was sentenced to 360 months in prison, consisting of 276 months for the attempted Hobbs

Act robbery conviction, and a consecutive 84-month sentence for the firearms conviction.

We affirmed the criminal judgment. United States v. Barbee,

(4th Cir.

2013) (No. 12-4260). The district court denied Stewart’s first § 2255 motion on its merits.

In 2016, we granted Stewart authorization to file a successive § 2255 motion in light

of Johnson v. United States,

(2015) (holding that the residual clause

of the Armed Career Criminal Act,

(e)(2)(b), is unconstitutionally vague),

and Welch v. United States,

(2016) (holding that Johnson announced a new

substantive rule of constitutional law that is retroactively applicable to cases on collateral

2 review). Stewart argued that, after Johnson, his attempted Hobbs Act robbery conviction

no longer qualified as a crime of violence and, therefore, his § 924(c) conviction must be

vacated. While Stewart’s motion was pending, the Supreme Court held that the residual

clause in § 924(c)(3)(B) is also unconstitutionally vague. United States v. Davis,

(2019); accord United States v. Simms,

(4th Cir.) (en

banc) (concluding that § 924(c)(3)(B) is unconstitutionally vague and holding that

conspiracy to commit Hobbs Act robbery is not a “crime of violence” sufficient to support

a § 924(c) conviction), cert. denied,

(2019). We later concluded, however,

that substantive Hobbs Act robbery still qualifies as a crime of violence under the force

clause in § 924(c)(3)(A). United States v. Mathis,

(4th Cir. 2019).

The district court denied Stewart’s motion to vacate his § 924(c) conviction based on our

decision in Mathis. The court declined to issue a certificate of appealability.

After the district court denied Stewart’s successive § 2255 motion, 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 Stewart a certificate of appealability, reverse the district court’s denial of

Stewart’s motion to vacate his § 924(c) conviction, vacate the § 924(c) conviction, and

remand for resentencing consistent with this opinion. See id. at 210. 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

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