United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
W. SIPPEL UNITED STATES DISTRICT JUDGE
matter is before the Court on a motion by Petitioner
Damitrius Creighton (“Creighton”) to vacate his
sentence under 28 U.S.C. § 2255, alleging that under
Johnson v. United States, 135 S.Ct. 2551 (2015), he
is no longer subject to an enhanced sentence for a
“crime of violence” conviction under 18 U.S.C.
§ 924(c)(3)(B). Respondent United States of America
opposes the motion, arguing that Johnson does not
entitle Creighton to relief. For the reasons that follow, I
will deny Creighton's motion.
October 30, 2014, Creighton pled guilty to the following two
counts of a four-count indictment: (i) Count I: conspiracy to
interfere with commerce by threats or violence under 18
U.S.C. § 1951(a), and (ii) Count II: possession of a
firearm in furtherance of the conspiracy charged in Count I
(a “crime of violence”) under 18 U.S.C. §
924(c). On January 27, 2015, Creighton was sentenced to an
aggregate sentence of 72 months, consisting of 12 months of
imprisonment for Count I and a consecutive 60 months of
imprisonment for Count II [Crim. Doc. 141]. Under Count II,
Creighton was subject to a mandatory minimum statutory
waived direct appeal of his sentence. On October 19, 2015,
Creighton filed a pro se Motion to Vacate under 18 U.S.C.
§ 2255, asking the Court to vacate, set aside, and/or
correct his sentence based upon Johnson [Crim. Doc.
151]. The Court subsequently opened the accompanying civil
case and appointed the Federal Public Defender as counsel. In
his motion, Creighton argues that the Johnson
holding entitles him to relief, since his conviction for
conspiracy to interfere with commerce by threats or violence
no longer qualifies as a “crime of violence.”
district court may vacate, set aside, or correct a federal
sentence if “the sentence was in excess of the maximum
authorized by law.” 28 U.S.C. § 2255(a). Under
§ 2255, “a defendant in federal custody may seek
post-conviction relief on the ground that his sentence was
imposed in the absence of jurisdiction or in violation of the
Constitution or laws of the United States, was in excess of
the maximum authorized by law, or is otherwise subject to
collateral attack.” Watson v. United
States, 493 F.3d 960, 963 (8th Cir.2007). Creighton
bears the burden of showing that he is entitled to relief.
Day v. United States, 428 F.2d 1193, 1195 (8th Cir.
claim for relief relies upon the Johnson holding
that the residual clause of the Armed Career Criminal Act
(“ACCA”) is unconstitutionally vague. The
Johnson case focused upon the ACCA, which mandates
sentencing enhancements for defendants previously convicted
of three or more “violent felonies.” 18 U.S.C.
§ 924(a). The Johnson court invalidated a
portion of the ACCA called the residual clause, which
concerned prior convictions for a “violent
felony” that “otherwise involves conduct that
presents a serious potential risk of physical injury to
another.” 18 U.S.C. § 924(e)(2)(B); see
Johnson 135 S.Ct. 2551 (addressing Johnson
petitioner's conviction of being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)). Although
Creighton was not sentenced under the ACCA provisions which
were at issue in Johnson, Creighton asserts that the
Johnson analysis and holding should be extended to
his “crime of violence” conviction under 18
U.S.C. § 924(c).
Creighton was sentenced under 18 U.S.C. § 924(c) rather
than the ACCA. 18 U.S.C. § 924(c) mandates minimum
sentencing enhancements for persons convicted of a
“crime of violence” who use or carry a firearm in
furtherance of such crime. 18 U.S.C. § 924(c)(3) defines
a “crime of violence” to include a conviction
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 course of
committing the offense.” Creighton argues that the
second part of this definition, 18 USC § 924(c)(3)(B),
is unconstitutionally vague in light of the Johnson
decision. Creighton acknowledges that his conviction would
qualify as a crime of violence if he was sentenced under 18
U.S.C. § 924(c)(3)(A), so the parties focus their
argument upon 18 U.S.C. § 924(c)(3)(B). Creighton
asserts that his conviction should be vacated if he was
sentenced to 60 months of imprisonment under 18 U.S.C. §
924(c)(3)(B) and the Court finds that provision
deny Creighton's motion. I am bound by the Eighth
Circuit's recent decision in United States v.
Prickett, 839 F.3d 697 (8th Cir. 2016), cert.
denied, 138 S.Ct. 1976 (2018), which expressly rejected
Creighton's argument that the Johnson case can
be extended to invalidate 18 USC § 924(c)(3)(B). The
Prickett court held, “Johnson does
not render § 924(c)(3)(B) unconstitutionally
vague.” Id. at 700. The Prickett
court provided several reasons for this holding, including
that § 924(c)(3)(B), unlike the ACCA: (i) uses
“distinctly narrower” statutory language,
“especially in that it deals with physical force rather
than physical injury” and “by its nature”
requires a more definite “[r]isk of physical force
against a victim;” (ii) does not use the word
“otherwise” to link the “substantial
risk” standard “to a confusing set of
examples” for courts to analogize; (iii) has no history
of conflicting Supreme Court decisions attempting to
“come up with a coherent interpretation of the
clause;” and (iv) concerns a distinct set of
circumstances. Id. at 699-700.
circuit courts have similarly declined to extend the
Johnson holding to 18 U.S.C. § 924(c)(3)(B),
see United States v. Taylor, 814 F.3d 340 (6th Cir.
2016), cert. denied, 138 S.Ct. 1975 (2018), although
several of these courts have revisited their holdings in
response to the United States Supreme Court's holdings in
Sessions v. Dimaya, 138 S.Ct. 1204 (2018).
See, e.g., United States v. Hill,
832 F.3d 135, 145 (2nd Cir. 2016), amended and superseded
by 890 F.3d 51, n.2 (2d Cir. 2018); United States v.
Davis, 677 Fed.Appx. 933, 2017 WL 436037 (5th Cir.
2017), cert. granted, judgment vacated sub nom. Glover v.
United States, 138 S.Ct. 1979 (2018). In
Dimaya, the Supreme Court held that the
similarly-worded criminal law, 18 U.S.C. § 16(b), is
unconstitutionally vague, but it “express[ed] no
view” as to whether 18 U.S.C. § 924(c)(3)(B) fails
for the same reason. The language of the two statutes
“appears identical . . . in all material
respects.” United States v. Taylor, 814 F.3d
340, 378 (6th Cir. 2016), cert. denied, 138 S.Ct.
1975 (2018). The statute struck down in Dimaya
defines a crime of violence as
(a) an offense that has as an element the use, attempted use,
or threatened use of physical force against the person or
property of another, or
(b) any other offense that is a felony and that, by its
nature, involves a substantial risk that physical force
against the person or property of another may be used in ...