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Gordon v. United States

United States District Court, N.D. Alabama, Western Division

February 8, 2017

CHRISTOPHER CHARLES GORDON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 7:03-CR-0214-SLB-JEO

          MEMORANDUM OPINION

          SHARON LOVELACE BLACKBURN SENIOR UNITED STATES DISTRICT JUDGE

         This case is presently pending before the court on petitioner Christopher Charles Gordon's Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255(f)(3) [hereinafter Motion to Vacate]. (Doc. 1; crim. doc. 53.)[1] Citing Johnson v. United States, 135 S.Ct. 2551 (2015), Gordon contends that he was improperly sentenced under 18 U.S.C. § 924(c). Because binding Eleventh Circuit precedent bars Gordon's claim on the merits, the court assumes that his Motion to Vacate based on Johnson is timely filed and is not procedurally barred. For the reasons set forth below, the court finds that Gordon's Motion to Vacate is due to be denied and his petition dismissed without notice to the Government. See 28 U.S.C. 2255(b).[2]

         On May 1, 2003, an Indictment was filed against Gordon and his co-defendant, James Clifton Cole. (Crim. doc. 1.) The Indictment charged Gordon with: Count One - conspiracy “to take a motor vehicle . . . by force, violence and intimidation, with the intent to cause death and serious bodily harm to [the victim] in violation of 28 U.S.C. § 371; Count Two - carjacking in violation of 18 U.S.C. § 2119; and Count Three - discharging a firearm during a crime a violence (carjacking charged in Count Two) in violation of 18 U.S.C. § 924(c)(1)(A)(iii). (Id.) These charges arose from a violent carjacking on or about January 30, 2000, during which Gordon's co-defendant, James Clifton Cole, shot the victim in the neck. (See crim. doc. 16 at 2-3; crim. doc. 37 at 4-5; crim. doc. 50 at 4.) During the carjacking, Cole had a gun and forced the victim into the backseat of his vehicle, while Gordon drove the vehicle. (Crim. doc. 50 at 6-7.) Gordon told Cole, “Shoot him if he moves.” (Id.) The victim tried to jump out of the vehicle and Cole shot him. (Id. at 8.)

         Pursuant to a Plea Agreement with the Government, Gordon pled guilty to Counts Two and Three and the court dismissed Count One. (Crim. doc. 16; crim. doc. 39.) The Government recommended a custodial sentence at the low end of the Sentencing Guideline range for Count Two, which was 108 to 135 months. (Crim. doc. 16 at 1; see crim. doc. 37 at 14.) The court departed upward and sentenced Gordon to 180 months on Count Two[3] and a consecutive sentence of 120 months on Count Three. (Crim. Doc. 67 at 2.) The Eleventh Circuit affirmed the court's Judgment. (Crim. doc. 52.)

         On June 29, 2016, Gordon, who is proceeding pro se, filed the instant Motion to Vacate. (Crim. doc. 53; doc. 1.) In his Motion to Vacate, Gordon challenges his conviction under § 924(c) based on Johnson v. United States, 135 S.Ct. 2551 (2015); he states, “Carjacking as charged in Count Two of Movant's Indictment cannot qualify as a ‘crime of violence' under § 924(c)'s residual clause nor under the remaining clause, the force clause. Therefore, the ‘crime of violence' element of §924(c) cannot be constitutionally sustained under the statute.” (Doc. 1 at 7.) He also contends that his “enhanced [criminal history] points under §§ 4A1.1(C) [sic], 4A1.2(C) [sic] [of the Sentencing Guidelines][4] and [the] application of [the Sentencing Guidelines is] analogous to Johnson's constitutional invalidation of 924(e)'s residual clause. (Id.) Therefore, he argues the Sentencing Guidelines are unconstitutionally vague.

         In Johnson, the Supreme Court held that the residual clause of the definition of a “violent felony” in the Armed Career Criminal Act [“ACCA”], 18 U.S.C. § 924(e)(2)(B)(ii), was void for vagueness. Johnson, 135 S.Ct. at 2563. The Court also held that its “decision [did] not call into question application of the [ACCA] to the four enumerated offenses, or the remainder of the [ACCA's] definition of a violent felony.” Id. The decision did not address the definition of a crime of violence found in § 924(c)(3) or the Sentencing Guidelines.

         Gordon was convicted of discharging a firearm during a crime of violence in violation of 28 U.S.C. 924(c)(1)(A)(iii), which states:

Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence . . . (including a crime of violence . . . that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence . . . -
. . .
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

18 U.S.C. § 924(c)(1)(A)(iii). “[N]o term of imprisonment imposed on a person under [§924(c)] shall run concurrently with any other term of imprisonment imposed on the person, including any term of imprisonment imposed for the crime of violence . . . during which the firearm was used, carried, or possessed.” Id. (c)(1)(D)(ii). The Act 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 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 ...

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