United States v. Wilson

Opinion

FILED Appellate Case: 20-5077 Document: 010110713728 United Date Filed: States Court 07/20/2022 of Appeals Page: 1 Tenth Circuit

UNITED STATES COURT OF APPEALS July 20, 2022

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 20-5077 v. (D.C. Nos. 4:20-CV-00165-GKF-JFJ & 4:12-CR-00197-GKF-3) WESLEY RYAN WILSON, (N.D. Okla.)

Defendant - Appellant.

ORDER AND JUDGMENT*

Before MORITZ, SEYMOUR and BRISCOE, Circuit Judges.

Following the district court’s dismissal of Mr. Wilson’s 28 U.S.C. § 2255 motion,

we granted a certificate of appealability on a single issue: whether the district court erred

when it held that attempted Hobbs Act robbery is a crime of violence under the elements

clause of 18 U.S.C. § 924(c). Shortly thereafter, the Supreme Court granted a writ of

certiorari in United States v. Taylor, 979 F.3d 203 (4th Cir. 2020). Because it presented

the same issue, we abated Mr. Wilson’s appeal. On June 21, 2022, the Court held that

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 20-5077 Document: 010110713728 Date Filed: 07/20/2022 Page: 2

attempted Hobbs Act robbery does not qualify as a “crime of violence” under § 924(c)’s

elements clause because it can be committed without the use, attempted use, or

threatened use of force. United States v. Taylor, 142 S. Ct. 2015, 2021 (2022). We

therefore remove Mr. Wilson’s motion from abeyance. However, rather than address in

the first instance what the Court’s decision means for Mr. Wilson’s § 2255 motion, we

remand his case to the district court for further consideration in light of Taylor.1

The Clerk shall issue the mandate forthwith.

Entered for the Court

Stephanie K. Seymour Circuit Judge

1 We decline to address the government’s procedural default argument, which it failed to raise below. See United States v. Allen, 16 F.3d 377, 379 (10th Cir. 1994).