In In re Cannon, No. 19-12533 (July 25, 2019)
(Tjoflat, Hull, Julie Carnes) (per curiam), the Court authorized a successive
2255 motion under Davis for a 924(o) conspiracy conviction but not for
924(c) convictions.
For the 924(c) convictions, the Court denied authorization
because they were based on drug trafficking, substantive Hobbs Act,
and carjacking, all of which remain qualifying predicates after Davis.
For the 924(o) conviction, the Court observed that the
offense was based on multiple distinct predicate offenses, most of which
remained qualifying predicates, but one of which was Hobbs Act conspiracy,
which was still an open question in this Circuit. Because the jury returned a general verdict,
and the crimes seemed inextricably intertwined based on its limited review of
the record, the Court found it unclear which crimes served as the predicate for
the 924(o) offense. Therefore, it found
that the applicant had made a prima facie showing. The Court cited In re Gomez for
support. However, the Court cautioned
that the movant bore the burden under Beeman to show that the jury
likely based its verdict solely on the Hobbs Act conspiracy, not the other
qualifying predicates--and the Court found there was some indication that it did not. The Court also suggested that, where a 924(o)
verdict rests on a drug trafficking predicate, there may not be any concern
about a possibly defect in a related crime of violence predicate.
