United States District Court, D. Montana, Missoula Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
L. Christensen, United States District Court Chief Judge
matter comes before the Court on Defendant/Movant Acton's
motion to vacate, set aside, or correct the sentence under 28
U.S.C. § 2255. Acton seeks relief under Johnson v.
United States, __ U.S. __, 135 S.Ct. 2551 (2015), which
was made retroactive to final judgments by Welch v.
United States, __ U.S. __, 136 S.Ct. 1257(2016).
pled guilty to two offenses, one charge alleging violation of
18 U.S.C. § 924(c) (Count 2), and a predicate
"crime of violence" (Count 1).
what appears to be a typographical error, the Indictment
failed to charge an offense in Count 2. See
Indictment (Doc. 1) at 2-3. In Count 1, the indictment
alleged Acton "used actual and threatened force against
G.G., to unlawfully take from the owner, against said
owner's will, approximately ten firearms, in the presence
of G.G. ... in violation of 18 U.S.C. §§ 1951(a)
and 2." Indictment at 2.
August 8, 2012, Acton pled guilty to both Count 1 and Count
2. See Minutes (Doc. 60). On November 8, 2012, Acton
was sentenced to serve 18 months on Count 1 and a consecutive
84 months on Count 2 for a total prison term of 102 months.
See Minutes (Doc. 74); Judgment (Doc. 77) at 2.
Acton did not appeal. His conviction became final on November
23, 2012. Gonzalez v. Thaler, 565 U.S. 134,
18 U.S.C. § 924(e)
Johnson v. United States, __ U.S. __, 135 S.Ct. 2551
(2015) ("Johnson" or "Johnson
IF), the Supreme Court 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 found 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. Therefore, the decision held, federal sentencing
courts may no longer enhance a defendant's sentence based
on a prior conviction when that conviction qualifies as a
"violent felony" only under the residual clause.
See Johnson, 135 U.S. at 2555-60, 2563.
did not address either subsection (i) or the first line of
subsection (ii) in § 924(e)(2)(B). Those provisions
18 U.S.C. § 924(c)(3)
challenges his conviction not under the ACCA but under 18
U.S.C. § 924(c)(1)(A) and (ii) for using or carrying and
brandishing a firearm during and in relation to a "crime
of violence." The definition of a "crime of
violence" in § 924(c)(3) is similar to the
definition of a "violent felony" 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).
argues that a Hobbs Act robbery is not a "crime of
violence" under § 924(c)(3)(A) and that §
924(c)(3)(B) is unconstitutionally vague in light of
Johnson. The United States asserts that robbery
meets the requirements of § 924(c)(3)(A) and that
Johnson does not apply to § 924(c)(3)(B).
Court will assume, for the sake of argument, that the
residual clause in § 924(c)(3)(2?) is unconstitutionally
vague for the reasons explained in Johnson. See Dimaya v.
Lynch, 803 F.3d 1110, 1120 (9th Cir. 2015) (holding the
residual clause of 18 U.S.C. § 16(b), which is virtually
identical to § 924(c)(3)(B), unconstitutionally vague
under Johnson), cert, granted, No. 15-1498 (U.S.
Sept. 29, 2016).But, even so, Acton's conviction and
sentence under § 924(c) would still be valid if the
"crime of violence" he committed "ha[d] as an
element the use, attempted use, or threatened use of physical
force against the person or property of another." 18
U.S.C. § 924(c)(3)(4).
Acton's Predicate ...