United States District Court, N.D. Alabama, Northwestern Division
MEMORANDUM OF OPINION
Scott Coogler United States District Judge.
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
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.
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).
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. 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.
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
(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 ...