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Smith v. United States

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

May 8, 2017

VALECIO JAMELL SMITH, Petitioner,
v.
UNITED STATES OF AMERICA Respondent.

          MEMORANDUM OF OPINION

          L. Scott Coogler United States District Judge.

         I. Introduction

         The 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 be denied.

         II. Background

         Smith's 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 not appeal.

         III. Discussion

         Over 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).[1]

         In 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.[2] 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.

         Smith's 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 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 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 ...

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