United States District Court, D. Montana, Great Falls Division
ORDER DENYING § 2255 MOTION AND GRANTING
CERTIFICATE OF APPEALABILITY
Morris, United States District Court Judge.
case comes before the Court on Defendant Walking Eagle's
motion to vacate, set aside, or correct the sentence under 28
U.S.C. § 2255. He also moves for the appointment of new
counsel to represent him. Walking Eagle is a federal prisoner
proceeding pro se.
Eagle pled guilty in 2007 to one count of assault with intent
to commit murder, a violation of 18 U.S.C. § 113(a)(1)
(“Count 1”), and one count of using or carrying
and discharging a firearm during and in relation to a crime
of violence, a violation of 18 U.S.C. § 924(c)(1)(A) and
(iii) (“Count 4”). The Court sentenced him on
February 25, 2008, to a term of 151 months on Count 1 and a
mandatory consecutive ten-year term on Count 4. See
Plea Agreement (Doc. 17) at 3-4 ¶ 6; Judgment (Doc. 26)
at 1-2. He seeks relief under the United States Supreme
Court's recent decision in Johnson v. United
States, ___ U.S. ___, 135 S.Ct. 2551 (2015). See
also Welch v. United States, ___ U.S. ___, 136 S.Ct.
1257, 1265 (2016) (holding that Johnson applies to
cases already final when it was issued).
Supreme Court in Johnson considered the meaning of a
provision in the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e). The ACCA
imposes a harsher sentence on a person convicted of a
firearms offense if the person has three prior convictions
for a violent felony or controlled substance offense. The Act
defines a “violent felony” as a felony that:
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another[.]
18 U.S.C. § 924(e)(2)(B). Johnson discussed
only the italicized clause, commonly called the
Supreme Court deemed the residual clause so vague that it
deprived defendants of fair notice of the consequences of
their decisions and so loose that it invited arbitrary
enforcement by sentencing judges. Federal sentencing courts
no longer may enhance a defendant's sentence based on a
prior conviction when that conviction qualifies as a
“violent felony” only under the residual clause.
Johnson, 135 U.S. at 2555-60, 2563. Johnson
did not address either subsection (i) or the first line of
subsection (ii) in § 924(e)(2)(B). Those provisions
remain valid law.
Eagle challenges his conviction under 18 U.S.C. §
924(c)(1)(A), and (iii) for using or carrying a firearm
during and in relation to a “crime of violence.”
The definition of a “crime of violence” in §
924(c)(3) differs from the definition of a “violent
felony” in § 924(e)(2)(B). It remains similar in
(3) For purposes of this subsection [§ 924(c)] the term
“crime of violence” means an offense that is a
(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 course of committing the offense.
18 U.S.C. § 924(c)(3).
Court will assume, for the sake of argument, that the
residual clause in §
924(c)(3)(B) is unconstitutionally