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United States v. Walker

United States Court of Appeals, Fourth Circuit

August 9, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
DONALD EUGENE WALKER, Defendant-Appellant.

          Argued: September 23, 2016

          Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:14-cr-00271-WO-1)

         ARGUED:

          JOHN SCOTT COALTER, COALTER LAW, P.L.L.C., GREENSBORO, NORTH CAROLINA, FOR APPELLANT.

          JOANNA GIBSON MCFADDEN, OFFICE OF THE UNITED STATES ATTORNEY, GREENSBORO, NORTH CAROLINA, FOR APPELLEE.

         ON BRIEF:

          RIPLEY RAND, UNITED STATES ATTORNEY, OFFICE OF THE UNITED STATES ATTORNEY, GREENSBORO, NORTH CAROLINA, FOR APPELLEE.

          Before NIEMEYER, MOTZ, and WYNN, Circuit Judges.

          DIANA GRIBBON MOTZ, Circuit Judge.

         Donald Eugene Walker pled guilty to kidnapping in violation of 18 U.S.C. § 1201(a) and brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). The district court sentenced Walker to 324 months on the kidnapping charge, followed by 84 months for brandishing a firearm "during and in relation to a crime of violence." On appeal, Walker principally challenges his § 924(c) conviction.[1] For the reasons set forth within, we vacate Walker's § 924(c) conviction and remand to the district court with instructions to resentence him.

         I.

         Under 18 U.S.C. § 924(c), a person who uses or carries a firearm "during and in relation to any crime of violence" or who "possesses a firearm" "in furtherance of any such crime" may be separately convicted of both the underlying crime of violence and the use, carrying, or possession of that firearm. Section 924(c)(3) defines "crime of violence" as "an offense that is a felony" and

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the ...

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