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Cain v. United States

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

May 11, 2017

STEVEN JEFFREY CAIN, Petitioner,
v.
UNITED STATES OF AMERICA Respondent.

          MEMORANDUM OF OPINION

          L. Scott Coogler United States District Judge.

         Steven Jeffrey Cain (“Cain”) has filed with the Clerk of this Court a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Doc. 1.) The Government has responded in opposition to his motion. (Doc. 5.) For the following reasons, the motion is due to be denied.

         I. Background

         On June 21, 2011, Cain pled guilty to five counts: one count of armed burglary of a pharmacy in violation of 18 U.S.C. § 2118(b); one count of use of a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c); and three counts of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The Court sentenced him to a total of 330 months' imprisonment. Judgment was entered on September 23, 2011. Cain did not appeal, but he filed the instant motion on July 8, 2016.

         II. Discussion

         The only claim Cain asserts is that his conviction under 18 U.S.C. § 924(c) should be rendered invalid after 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. According to Cain, 18 U.S.C. § 924(c)'s definition of “crime of violence” is unconstitutionally vague for the same reasons the Court in Johnson held the “residual clause” of the ACCA, 18 U.S.C. § 924(e), unconstitutionally vague.

         Cain's argument fails for several reasons. First, it is far from clear that Johnson impacted the definition of “crime of violence” under 18 U.S.C. § 924(c). See In re Smith, 829 F.3d 1276 (11th Cir. 2016). In Smith, the Eleventh Circuit explained in dicta that 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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