United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OF OPINION
Scott Coogler United States District Judge.
Court has before it Petitioner Valecio Jamell Smith's
(“Smith's”) Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255. (Doc. 1.)
The Government has responded in opposition to the motion.
(Doc. 6.) For the reasons stated below, the motion is due to
sentence results from his plea of guilty to carjacking in
violation of 18 U.S.C. § 2119 and using or carrying
(brandishing) a firearm during and in relation to a crime of
violence in violation of 18 U.S.C. § 924(c)(1). This
Court sentenced Smith to a total of 147 months'
imprisonment. Judgment was entered on May 8, 2013. Smith did
three years after his conviction became final, Smith claims
that his § 924(c)(1) conviction and sentence should be
vacated because his federal carjacking conviction cannot
serve as a predicate “crime of violence”
following the supreme Court's decision in Johnson v.
United States, 135 S.Ct. 2551 (2015).
Johnson, the Supreme Court held that because the
residual clause of the “violent felony”
definition in the Armed Career Criminal Act
(“ACCA”) is unconstitutionally vague, imposition
of an enhanced sentence under that provision violates the
Fifth Amendment's guarantee of due process. Id.
at 2557. The Supreme Court made clear that its ruling on the
residual clause did not call into question the validity of
the “elements clause” or the “enumerated
crimes clause” of the ACCA's definition of a
violent felony. Id. at 2563. Subsequently in
Welch v. United States, 136 S.Ct. 1257 (2016), the
Supreme Court held that Johnson applies
retroactively to cases on collateral review.
argument is foreclosed by Eleventh Circuit precedent. See
In re Smith, 829 F.3d 1276 (11th Cir. 2016). In
Smith, the Eleventh Circuit explained that as an
initial matter, Johnson's holding is not
applicable to a non-ACCA statute, as follows:
Johnson rendered the residual clause of the ACCA
invalid. It said nothing about the validity of the definition
of a crime of violence found in § 924(c) (3), which
prohibits using or carrying a firearm during a crime of
violence. Section 924(c) creates a separate crime and
provides for a mandatory consecutive sentence for a defendant
who uses a firearm during a crime of violence or a drug
trafficking crime. 18 U.S.C. § 924(c)(1). For purposes
of § 924(c), “crime of violence” means 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 course of committing the offense.
18 U.S.C. § 924(c)(3).
As noted, Smith contends that the rule promulgated in
Johnson, which held the residual clause of the ACCA
to be unconstitutionally vague, means that §
924(c)'s residual clause must likewise suffer the same
fate. . . . This contention, however, is not self-evident
and, indeed, there are good reasons to question an argument
that Johnson mandates the invalidation ...