Amaad Jamaal Brantley appeals the district courts order denying his 28 U.S.C. § 2255 motion. Brantley pleaded guilty, pursuant to a written plea agreement, to a RICO offense, in violation of 18 U.S.C. § 1962(c), and possession of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). The predicate for the § 924(c) offense was assault with a dangerous weapon in aid of racketeering activity, which, in turn, was predicated on two Virginia state offenses. He received a total sentence of 144 months’ imprisonment. The district court denied Brantleys § 2255 motion as untimely.
On appeal, we granted a certificate of appealability on the following issues: (1) whether, in light of United States v. Davis, ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), the district court erred in dismissing Brantleys § 2255 motion as untimely; and (2) whether Brantleys § 924(c) conviction is invalid because the Virginia state offenses upon which the conviction was based do not qualify as predicates under § 924(c)’s force clause. The Government now withdraws its timeliness defense to Brantleys § 2255 motion but nevertheless suggests that we may affirm Brantleys § 924(c) conviction because it remains lawful after Davis. Brantley moves to remand this case to the district court to consider the merits of his claims in the first instance.
When the district court considered Brantleys § 2255 motion, it did not have the benefit of our recent decision in In re Thomas, 988 F.3d 783 (4th Cir. 2021). In Thomas, we held that “Davis applies retroactively to cases on collateral review.” 988 F.3d at 786. We concluded that the Davis rule is substantive because it placed individuals “who had committed a crime ․ that satisfied the [crime of violence] definition in ․ [§ 924(c)’s] residual clause ․ beyond the governments power to prosecute,” id. at 789, and noted that the Supreme Court made Davis retroactive because the Court “has held that new substantive rules of constitutional law generally apply retroactively to cases on collateral review.” Id. at 790 (internal quotation marks omitted). The district court determined that the § 2255 motion was untimely, therefore the court did not reach the merits of Brantleys § 2255 motion in the first instance. Because “we are a court of review, not of first view,” Lovelace v. Lee, 472 F.3d 174, 203 (4th Cir. 2006) (internal quotation marks omitted), we vacate the district courts order and grant Brantleys motion to remand to the district court for consideration of the § 2255 motion in light of Thomas. 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
PER CURIAM:
Vacated and remanded by unpublished per curiam opinion.
Unpublished opinions are not binding precedent in this circuit.