United States District Court, N.D. Alabama, Western Division
LOVELACE BLACKBURN SENIOR UNITED STATES DISTRICT JUDGE
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.
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.
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.)
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 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.)
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] 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.
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.
was convicted of discharging a firearm during a crime of
violence in violation of 28 U.S.C. 924(c)(1)(A)(iii), which
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
(B) that by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the ...