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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-11680 Non-Argument Calendar ________________________
D.C. Docket No. 5:17-cr-00019-RBD-PRL-3
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
TIMOTHEUS GERSOM REED, AVERY LEANARD TUMER, Defendant–Appellants.
________________________
Appeals from the United States District Court for the Middle District of Florida ________________________
(June 19, 2019)
Before MARCUS, JORDAN and BRANCH, Circuit Judges.
PER CURIAM:
Avery Tumer and Timotheus Reed appeal their convictions for conspiracy to
commit carjacking and possession of a firearm in furtherance of a crime of violence.
Tumer also appeals his conviction for carjacking and the denial of his motion to Case: 18-11680 Date Filed: 06/19/2019 Page: 2 of 17
continue sentencing. Several issues are raised on appeal: (1) both defendants argue
that the district court erred in denying their separate motions for a judgment of
acquittal of their convictions for conspiracy to commit carjacking because the
government failed to produce any evidence that two or more people willfully agreed
to carjack the victim; (2) Reed argues that the district court erred in denying his
motion for a judgment of acquittal of his conviction for possession of a firearm in
furtherance of a crime of violence; (3) Tumer argues that the district court erred in
denying his motion for a judgment of acquittal of his conviction for carjacking; (4)
both defendants argue that the court abused its discretion in admitting evidence of
an uncharged conspiracy to rob another person; and (5) Tumer argues that the court
abused its discretion by denying his motion to continue sentencing pending review
of cases addressing the constitutionality of 18 U.S.C. § 924(c)(3)(B). After thorough
review, we affirm in part, reverse in part, and vacate and remand.
We review de novo whether sufficient evidence supports a conviction,
viewing the record in the light most favorable to the government, and resolving all
reasonable inferences in favor of the verdict. United States v. Jiminez, 564 F.3d
1280, 1284 (11th Cir. 2009). We review a district court’s evidentiary rulings for
abuse of discretion. United States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003).
We also review for abuse of discretion a district court’s denial of a motion to
continue sentencing. United States v. Edouard, 485 F.3d 1324, 1350 (11th Cir.
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2007). The defendant must show both that the denial was an abuse of discretion and
produced substantial prejudice, and we focus on the reasons for the continuance
offered to the trial court. Id.
I.
First, we are persuaded by the defendants’ argument that there was insufficient
evidence to support their convictions for conspiracy to commit carjacking (Count
One). Evidence is sufficient to sustain a count of conviction if a reasonable trier of
fact could find that the evidence established the defendant’s guilt beyond a
reasonable doubt. Jiminez, 564 F.3d at 1284-85. It is not enough for a defendant to
put forth a reasonable hypothesis of innocence, since the issue is not whether a jury
reasonably could have acquitted, but whether it reasonably could have found the
defendant guilty. Id. at 1285. The test for sufficiency is the same regardless of
whether the evidence is direct or circumstantial, but where the government relied on
circumstantial evidence, “reasonable inferences, not mere speculation, must support
the conviction.” United States v. Martin, 803 F.3d 581, 587 (11th Cir. 2015)
(quotation omitted). Credibility questions are the sole province of the jury. United
States v. Schmitz, 634 F.3d 1247, 1269 (11th Cir. 2011). We assume the jury made
all credibility choices in support of the verdict. Jiminez, 564 F.3d at 1285.
To prove conspiracy under 18 U.S.C. § 371, the government must show: (1)
the existence of an agreement to achieve an unlawful goal; (2) the defendant
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willingly and knowingly participated in the conspiracy; and (3) the defendant
committed an overt act in furtherance of the conspiracy. United States v. Ibarguen-
Mosquera, 634 F.3d 1370, 1385 (11th Cir. 2011). A conspiracy may be proven via
circumstantial evidence, and the factfinding should not be disturbed if supported by
the evidence. Id. The agreement need not have been formal, and proof that the
defendant committed an act in furtherance of the conspiracy is the type of
circumstantial evidence that can be used to prove the existence of an agreement.
United States v. Moore, 525 F.3d 1033, 1040 (11th Cir. 2008). A defendant may be
found guilty of conspiracy if he knows of the “essential objective” of the conspiracy,
even if he did not know all of the details of the conspiracy or only played a minor
role within the scheme. United States v. McNair, 605 F.3d 1152, 1195–96 (11th Cir.
2010). The crux of the agreement element in a conspiracy case is that the
government must prove a “meeting of the minds” to achieve the unlawful result.
United States v. Arbane, 446 F.3d 1223, 1229 (11th Cir. 2006).
To prove carjacking under 18 U.S.C. § 2119, “the government must prove that
the defendant (1) with intent to cause death or serious bodily harm (2) took a motor
vehicle (3) that had been transported, shipped or received in interstate or foreign
commerce (4) from the person or presence of another (5) by force and violence or
intimidation.” United States v. Diaz, 248 F.3d 1065, 1096 (11th Cir. 2001)
(quotation omitted). The “intent” requirement is satisfied when the government
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proves that the defendant intended to seriously harm or kill the vehicle’s driver, at
the moment the defendant demanded or took control of the vehicle, in order to steal
the car. Holloway v. United States, 526 U.S. 1, 12 (1999).
In Count One, co-conspirators Avery Tumer, Timotheous Reed, and Jonathan
Lanier were charged with conspiracy to carjack victim Christopher Gist’s vehicle.
A thorough review of the record reveals, however, that while there was ample
evidence that the three co-conspirators conspired to rob Gist of drugs and money,
there was insufficient evidence from which a jury could have reasonably inferred
that the three men conspired to take Gist’s car. For starters, there was no direct
evidence of a conspiracy from Lanier, Tumer or Reed, since none of them testified
at trial. The only evidence the government presented in support of the carjacking
conspiracy was the testimony of Amy Scott, Tumer’s girlfriend. Scott testified that
on the night in question, she was driving Tumer, Reed and Lanier in her car, when
Tumer used her phone to send a Facebook message to Gist, Scott’s sometime sexual
partner, to meet up. There was a discussion in Scott’s car prior to meeting Gist about
whether he would have drugs and money on him because he sold marijuana, but no
one said anything about taking Gist’s car. Scott, Tumer, Reed, and Lanier drove to
a Citgo, met Gist, and drove down a nearby dirt road. Scott then got out of her car
and into Gist’s; a few minutes later, the men approached Gist’s car and removed Gist
from it. All three pointed their guns at Gist, they took his wallet, his phone and a
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bag of marijuana from him, and Tumer struck Gist’s head with his gun. The men
then rifled through Gist’s car doors and trunk. After robbing Gist, Tumer got into
Gist’s car, which surprised Scott because it “wasn’t the plan to steal the car” and
there was no way she could have predicted that Tumer would get into the car and
steal it. At that point, Scott, Lanier, and Reed got into her car, and while Tumer was
in Gist’s car, they separately returned to the apartment where Scott and Tumer had
been staying. Soon thereafter, the police arrived. Scott added that just before Gist’s
attack, Scott, Lanier, Reed, and Tumer had planned to rob another drug dealer,
Chilly, of drugs and money at his house, but that no one mentioned taking a car from
Chilly. When the plan to rob Chilly fell apart, the four turned to robbing Gist.
In other words, Scott’s testimony made clear that the plan was to rob Gist, but
that no one had suggested taking the car until Tumer decided to do so in the middle
of the robbery. This testimony does not give rise to a reasonable inference that the
three men had agreed to take the car, much less that Lanier or Reed knowingly and
willingly aided in Tumer’s theft of the vehicle. Ibarguen-Mosquera, 634 F.3d at
1385. The government says the jury could have inferred that the men made an
agreement to take Gist’s car in the two minutes after Scott left her car but before the
men attacked Gist, but that inference would be purely speculative in light of the
evidence. Martin, 803 F.3d at 587. Indeed, none of the men involved in the alleged
conspiracy testified at trial. Not only did Scott deny that the men talked about a
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carjacking before the attack, she testified that the men went through the car and trunk
after the robbery, which they would not have needed to do if they had planned to
take the car with them. Scott also admitted that Gist was targeted because he was
thought to have drugs and money, which was consistent with their previous plan to
rob another individual at a nearby house of drugs and money, again without any
mention of a car. So while the government suggests that Scott simply may not have
been aware of the plan, the government did not offer any affirmative evidence that
a plan existed, and Scott was there while the plan to rob Gist was formed.
As for the government’s claim that the concerted efforts of Lanier, Tumer,
and Reed to rob Gist amounted to evidence of their intent to steal his car, the record
shows that the men acted in concert in the robbery, even rifling through the car for
something to steal, until Tumer decided to take the car, an action that surprised Scott.
Also, there was no evidence that Reed or Lanier helped further the carjacking once
they knew about Tumer’s plan to take the car. Finally, Scott testified that she only
incidentally followed Tumer from the scene of the attack, insofar as both she and
Tumer happened to be headed back to the apartment where they were staying. This
testimony undermines any inference of a plan to commit carjacking from the fact
that they all went back to the same apartment.
On this record, it would have been unreasonable for a jury to find that the
men’s coordinated efforts to rob Gist was circumstantial evidence that they had
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conspired to commit carjacking. Martin, 803 F.3d at 587. While the evidence was
sufficient to establish that the three men conspired to rob Gist and acted in
furtherance of the “essential objective” of stealing Gist’s money and drugs, they
were not being tried for a conspiracy to commit robbery. Instead, the three men were
indicted and convicted of conspiring to steal Gist’s vehicle. Because the record does
not show that there was an agreement to steal Gist’s car, or that Reed knowingly or
willingly committed an overt act in furtherance of that agreement, the evidence could
not support a reasonable inference that such an agreement existed. Accordingly, we
reverse Tumer’s and Reed’s convictions as to Count One.1
II.
Consequently, we also must reverse Reed’s conviction in Count Five, for
possession of a firearm in furtherance of the carjacking. Pursuant to 18 U.S.C. §
924(c), it is unlawful for a person to use or carry a firearm during and in relation to
any crime of violence or to possess a firearm in furtherance of that crime. Diaz, 248
1 We disagree with the government’s claim that we should review Tumer’s challenge to Count One for plain error. As the record reveals, when moving for a judgment of acquittal, Tumer argued, among other things, that there was insufficient evidence to support his conviction on Count One because Scott had testified that she had not agreed to commit carjacking and was surprised when it occurred. Those straightforward statements were sufficient to apprise the trial court of the particular grounds upon which appellate review would be sought, i.e., the inadequacy of the evidence regarding the existence of a conspiracy to commit carjacking as demonstrated by Scott’s testimony. Further, Tumer filed a timely motion for a judgment of acquittal following the jury’s verdict, in which he argued that there was insufficient evidence of an agreement to steal Gist’s car. See Fed. R. Crim. P. 29(c)(1), (3). Thus, we’ve reviewed de novo the sufficiency of the evidence for Tumer’s conviction as to Count One. Jiminez, 564 F.3d at 1284.
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F.3d at 1099. Section 924(c) has two elements: (1) a drug deal or violent crime and
(2) the use or carrying of a firearm in connection with that crime. Rosemond v.
United States, 572 U.S. 65, 71 (2014). Count Five required the government to show
that Reed used a firearm in furtherance of a violent crime, which in this case was the
carjacking. But, as we’ve already concluded, there was insufficient evidence to
support Reed’s conviction for conspiracy to commit carjacking. There was also
insufficient evidence to sustain a conviction for carjacking because no evidence has
suggested that Reed took Gist’s car or otherwise participated in its theft.
Nor, moreover, can we say that the evidence was sufficient to establish that
he committed the carjacking under vicarious or aiding-and-abetting liability. 2
Pursuant to Pinkerton liability, a defendant may be vicariously liable for the
substantive crimes committed by a co-conspirator during and in furtherance of the
conspiracy, even if the defendant did not participate in those offenses or have
knowledge of them. United States v. Mothersill, 87 F.3d 1214, 1218 (11th Cir. 1996)
(citing Pinkerton v. United States, 328 U.S. 640, 646-47 (1946)). Notably, under
Pinkerton, a defendant is liable only where the substantive crime was a reasonably
foreseeable consequence of the conspiracy alleged in the indictment. United States
2 Notably, our conclusion that there was insufficient evidence to sustain a carjacking conviction for Reed is not dependent on the jury’s acquittal of Reed on Count Two, the carjacking charge. Jury verdicts are insulated from review on the basis that they are inconsistent, so long as sufficient evidence supports each finding of guilt. United States v. Albury, 782 F.3d 1285, 1295 (11th Cir. 2015). The problem here is not that the jury verdict was inconsistent, but that there was insufficient evidence in support the carjacking count. 9 Case: 18-11680 Date Filed: 06/19/2019 Page: 10 of 17
v. Alvarez, 755 F.2d 830, 848 (11th Cir. 1985). So even though the evidence
indicated that Reed was part of a conspiracy to rob Gist, Reed was not alleged to
have been part of a conspiracy to commit robbery in the indictment, nor was he
convicted of a robbery conspiracy. See United States v. Madden, 733 F.3d 1314,
1318 (11th Cir. 2013) (holding that a defendant can only be tried and convicted of
crimes charged in the indictment). As a result, the existence of a conspiracy to
commit robbery cannot sustain a conviction for carjacking under a Pinkerton theory
of liability. In other words, because there was insufficient evidence to support the
existence of a conspiracy to commit carjacking, the reasonably foreseeable
carjacking cannot have been a consequence of that conspiracy.
Nor could we uphold a conviction for carjacking under a theory of aiding-and-
abetting liability. A defendant is liable under a theory of aiding and abetting under
18 U.S.C. § 2 “if (and only if) he (1) takes an affirmative act in furtherance of that
offense, (2) with the intent of facilitating the offense’s commission.” United States
v. Sosa, 777 F.3d 1279, 1292 (11th Cir. 2015) (quotation omitted). “[A] person who
actively participates in a criminal scheme knowing its extent and character intends
that scheme’s commission.” Rosemond, 572 U.S. at 77. As the record reveals, there
is no evidence that Reed knew of Tumer’s plan to take Gist’s car, much less that he
acted affirmatively with the intent of facilitating the carjacking. Thus, a conviction
for carjacking cannot be sustained under an aiding-and-abetting theory either.
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In short, because there was insufficient evidence to sustain a carjacking
conviction, Reed’s conviction for possession of a firearm in furtherance of a violent
felony, as charged in Count Five, must also be reversed.
III.
We do conclude, however, the district court did not err in denying Tumer’s
motion for a judgment of acquittal on the carjacking count as to Count Two, because
the record contains sufficient evidence from which a reasonable jury could have
found that he possessed the intent to seriously injure or kill to facilitate the theft of
Gist’s car. Tumer does not dispute that he stole a vehicle that had been in interstate
commerce from Gist while holding him at gunpoint; he argues, instead, that there
was insufficient evidence that he possessed the requisite intent at the relevant times.
We disagree.
As the record reveals, both Gist and Scott testified that Gist was pulled from
his car and robbed, and Scott testified that Tumer then struck Gist in the head with
his gun before taking Gist’s car. Based on Scott’s testimony, the robbery was
effectively complete before Tumer struck Gist and took the car, and there is no
indication that there was any meaningful delay between Tumer’s attack on Gist and
the carjacking. Thus, a reasonable jury could have inferred that Tumer intended to
harm Gist to facilitate the carjacking at the moment he struck him with the gun,
thereby satisfying the intent requirement for carjacking. Holloway, 526 U.S. at 12.
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Accordingly, we affirm Tumer’s conviction on Count Two. Jiminez, 564 F.3d at
1284–85; Diaz, 248 F.3d at 1096.
IV.
We also find no merit to the defendants’ argument that the district court
abused its discretion by admitting evidence of an uncharged conspiracy, about which
Amy Scott testified. Rule 404(b) prohibits admission of a person’s prior bad acts as
proof of a person’s character in order to show that the person acted in accordance
with that character. Fed. R. Evid. 404(b). However, Rule 404(b) allows admission
of such acts for other purposes, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident. Id.
In determining whether evidence should be admitted under Rule 404(b), courts apply
the following three-part test: (1) the evidence must be relevant to an issue other than
the defendant’s character; (2) the evidence’s probative value must not be
substantially outweighed by its prejudicial effect; and, (3) the government must offer
sufficient proof so the jury could find that the defendant committed that act. United
States v. LaFond, 783 F.3d 1216, 1222 (11th Cir. 2015). Exclusion under Rule 403
-- which allows a court to exclude relevant evidence “if its probative value is
substantially outweighed by a danger of . . . unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence” -- “is an extraordinary remedy which the district court should invoke
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sparingly, and the balance should be struck in favor of admissibility.” United States
v. Alfaro-Moncada, 607 F.3d 720, 734 (11th Cir. 2010) (quotation omitted).
Notably, in reviewing evidentiary rulings, we will not reverse a conviction if
sufficient evidence uninfected by any error supports the verdict, and the error did
not substantially influence the outcome of the case. United States v. Langford, 647
F.3d 1309, 1323 (11th Cir. 2011).
Here, Tumer challenges the admission of evidence known as the “Chilly
evidence” -- evidence, mostly introduced through Amy Scott’s testimony, that the
defendants originally planned to rob a man named Chilly, but abandoned that plan
and shortly thereafter decided to rob Gist, using the guns, masks, and bandanas
originally intended for use in Chilly’s robbery. 3 As the record reveals, however,
even if this evidence was erroneously admitted (and we do not believe that it was),
the district court did not abuse its discretion because sufficient evidence uninfected
by any error supports the verdict as to Counts Two and Three, and, moreover, no
error substantially influenced the outcome of the case. Langford, 647 F.3d at 1323.
Among other things, Scott and Gist provided testimony (unrelated to Chilly) that
established that Tumer struck Gist on the head with a gun just before driving off in
3 While Reed raised this argument as well, we need not consider his argument because we’ve concluded that, even with this evidence, Reed’s convictions as to Counts One and Five must be reversed. For the same reason, will we not consider this argument as to Tumer’s Count One conviction. We only consider it as to Tumer’s Counts Two (carjacking) and Count Three (possession of a firearm in furtherance of a crime of violence) convictions. 13 Case: 18-11680 Date Filed: 06/19/2019 Page: 14 of 17
the car, which supports the finding that Tumer possessed the requisite intent to
seriously injure or kill Gist shortly before taking the car, as required by Count Two.
This testimony also expressly supports the finding that Tumer used the firearm in
furtherance of a crime of violence, as required by Count Three. As for Tumer’s
argument that the jury may have improperly considered the Chilly evidence as proof
of his “bad character,” the court instructed the jury that it was only to consider that
evidence with respect to his intent, motive, opportunity, or plan, or to show the
absence of an accident or mistake, and the jury is presumed to have followed those
instructions. Ramirez, 426 F.3d at 1352. Accordingly, we affirm Tumer’s
convictions as to Count Two and Three.
Finally, we find no merit to Tumer’s claim that the court abused its discretion
by denying his motion to continue sentencing. District courts possess broad
discretion to manage their dockets. United States v. McCutcheon, 86 F.3d 187, 190
(11th Cir. 1996). District courts are generally required to impose a sentence without
unnecessary delay but may change any time limits on a showing of good cause. Fed.
R. Crim. P. 32(b)(1)–(2).
Pursuant to 18 U.S.C. § 924(c), it is unlawful for a person to use or carry a
firearm during and in relation to any crime of violence or to possess a firearm in
furtherance of that crime. Diaz, 248 F.3d at 1099. Section 924(c)(3) defines a
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“crime of violence” as any felony offense that “(A) has as an element the use,
attempted use, or threatened use of physical force against the person or property of
another, or (B) . . . by its nature, involves a substantial risk that physical force against
the person or property of another may be used in the course of committing the
offense.” 18 U.S.C. § 924(c)(3)(A)–(B). Subsection (A) is often referred to as the
use-of-force clause, or the elements clause, while Subsection (B) is often referred to
as the residual clause. In re Smith, 829 F.3d 1276, 1278–79 (11th Cir. 2016). In In
re Smith, we held that carjacking constituted a crime of violence under §
924(c)(3)(A), the use-of-force clause. Id. at 1280. In Ovalles v. United States, 905
F.3d 1200 (11th Cir. 2018), on remand after the en banc, we upheld In re Smith’s
conclusion that carjacking is a “crime of violence” under § 924(c)(3)(A)’s use-of-
force clause. Id. at 1304.
For the purposes of sentencing under the Armed Career Criminal Act, “violent
felony” means, among other things, any crime punishable by a term of imprisonment
exceeding one year that “has as an element the use, attempted use, or threatened use
of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). In
Stokeling v. United States, 139 S. Ct. 544 (2019), the Supreme Court noted that
“physical force” under § 924(e)(2)(B)(i) included “force capable of causing physical
pain or injury.” 139 S. Ct. at 553. The Supreme Court held that “physical force” or
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“force capable of causing physical pain or injury” included the level of force
necessary to overcome a victim’s resistance. Id. at 555.
Here, Tumer has not shown that he was substantially prejudiced by the denial
of his motion to continue. We already held, in In re Smith, 829 F.3d at 1280, that
carjacking constitutes a crime of violence under § 924(c)(3)(A), the elements clause.
Ovalles -- which, on remand, upheld In re Smith -- would not have affected his
sentencing. Nor would Stokeling, since nothing in that decision, which dealt with §
924(e)(2)(B), alters our prior holding that carjacking constitutes a crime of violence
under § 924(c)(3)(A). Thus, Tumer cannot show that he was prejudiced because he
was engaged in a “crime of violence” under § 924(c)(3)(A), regardless of the
outcome of Ovalles or Stokeling.
We recognize that the Supreme Court recently granted certiorari in United
States v. Davis, 903 F.3d 483 (5th Cir. 2018), cert. granted, (U.S. Jan. 4, 2019) (No.
18–431), on the issue of the constitutionality of the definition of “crime of violence”
under § 924(c)(3)(B), the residual clause. But, regardless, the district court did not
abuse its discretion in denying Tumer’s motion to continue. As we’ve said, our
binding precedent holds that carjacking is a crime of violence under § 924(c)(3)(A),
the elements clause, so Davis -- which involves the residual clause in § 924(c)(3)(B)
-- would not affect his sentence. 4 In any event, the district court was required to
4 For this same reason, we DENY Tumer’s motion for a stay of appellate proceedings 16 Case: 18-11680 Date Filed: 06/19/2019 Page: 17 of 17
promptly sentence Tumer. Fed. R. Crim. P. 32(b)(1). The court also possessed
broad discretion to manage its docket, and Tumer has not cited to any law indicating
that the court’s failure to await the outcome of potentially informative cases -- which
could have delayed his sentencing for years -- amounted to an abuse of that
discretion. McCutcheon, 86 F.3d at 190. Accordingly, Tumer has not shown that
the court abused its discretion in denying his motion to continue his sentence.
Edouard, 485 F.3d at 1350.
In conclusion, we reverse Tumer’s and Reed’s convictions for conspiracy to
commit carjacking and Reed’s conviction for possession of a firearm in furtherance
of a crime of violence; we affirm Tumer’s convictions for carjacking and possession
of a firearm in furtherance of a crime of violence and the denial of his motion to
continue sentencing; we note that Tumer has not challenged on appeal his conviction
for being a felon in possession of a firearm; and we remand for further proceedings.
See United States v. Fowler, 749 F.3d 1010, 1016 (11th Cir. 2014) (“On direct
appeal, we have routinely, without hesitation and as a matter of course, vacated
entire sentences and remanded for resentencing on all surviving counts after vacating
a conviction or sentence on some, but not all, of the counts.”).
REVERSED IN PART, AFFIRMED IN PART, AND VACATED AND REMANDED.
pending the Supreme Court’s decision in Davis. 17