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Creighton v. United States

United States District Court, E.D. Missouri, Eastern Division

July 16, 2018

DAMITRIUS CREIGHTON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          RODNEY W. SIPPEL UNITED STATES DISTRICT JUDGE

         This 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.

         I. Background

         On 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 sentence.

         Creighton 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.”

         II. Legal Standard

         A 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. 1970).

         III. Analysis

         Creighton's 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).

         Here, 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 unconstitutional.

         I must 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.

         Other 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 ...

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