Argued: September 23, 2016
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)
SCOTT COALTER, COALTER LAW, P.L.L.C., GREENSBORO, NORTH
CAROLINA, FOR APPELLANT.
GIBSON MCFADDEN, OFFICE OF THE UNITED STATES ATTORNEY,
GREENSBORO, NORTH CAROLINA, FOR APPELLEE.
RAND, UNITED STATES ATTORNEY, OFFICE OF THE UNITED STATES
ATTORNEY, GREENSBORO, NORTH CAROLINA, FOR APPELLEE.
NIEMEYER, MOTZ, and WYNN, Circuit Judges.
GRIBBON MOTZ, Circuit Judge.
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. For the reasons set forth within,
we vacate Walker's § 924(c) conviction and remand to
the district court with instructions to resentence him.
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
(B) that by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the ...