UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-6992

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

WILLIE DEROD BEALE,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Louise W. Flanagan, District Judge. (4:10-cr-00049-FL-3; 4:16-cv-00121- FL)

Submitted: February 23, 2021 Decided: March 23, 2021

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

Vacated and remanded by unpublished per curiam opinion.

Jennifer Claire Leisten, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. John Everett Harris, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Willie Derod Beale 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).

Beale pleaded guilty to attempted robbery of a business engaged in interstate

commerce, in violation of

, 1951 (“attempted Hobbs Act robbery

conviction”), and discharging a firearm during and in relation to a crime of violence, in

violation of

, 924(c)(1)(A)(ii) (“§ 924(c) conviction”). The district court

sentenced Beale to 149 months in prison, consisting of 29 months for the attempted Hobbs

Act robbery conviction and a consecutive 120-month sentence for the § 924(c) conviction.

The district court also imposed a total of five years of supervised release.

In his authorized § 2255 motion, Beale argued that, after, Johnson v. United States,

(2015), his attempted Hobbs Act robbery conviction no longer qualifies as a

crime of violence and, therefore, that his § 924(c) conviction must be vacated. Considering

the Supreme Court’s decision in United States v. Davis,

, (2019), and our

decisions in United States v. Simms,

, (4th Cir. 2019) (en banc), and United

States v. Mathis,

(4th Cir. 2019), the district court denied Beale’s motion to

2 vacate his § 924(c) conviction. After the district court issued its decision denying Beale’s

authorized § 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). And, in Taylor, we granted a certificate of appealability, reversed

the district court’s denial of § 2255 relief, vacated Taylor’s § 924(c) conviction, and

remanded for resentencing.

Accordingly, we grant Beale a certificate of appealability, reverse the district court’s

denial of Beale’s § 2255 motion, vacate the § 924(c) conviction, and remand for

resentencing. 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

3