United States District Court, N.D. Alabama, Middle Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
movant James Lavon Shropshire filed a motion to vacate, set
aside, or correct his sentence on June 15, 2016,
contending that the court should vacate his conviction and
sentence under 18 U.S.C. § 924(c) because armed robbery
no longer qualifies as a “violent felony” after
the Supreme Court's decision in United States v.
Johnson, 135 S.Ct. 2551 (2015). In Johnson, the
Supreme Court struck down the “residual clause”
in 18 U.S.C. § 924(e) of the Armed Career Criminal Act
(ACCA) as unconstitutionally vague. Johnson, 135
S.Ct. at 2557. Mr. Shropshire urges this court to extend the
holding in Johnson regarding the unconstitutionally
vague “residual clause” in § 924(e) to the
similar “risk-of- force” clause found in §
924(c). For the following reasons, the court refuses to
extend Johnson beyond its holding and finds that Mr.
Shropshire's motion to vacate is due to be DENIED.
Shropshire pled guilty on February 16, 2011to one count of
armed bank robbery under 18 U.S.C. § 2113(a) and (d) and
one count of using and carrying a firearm during and in
relation to a crime of violence under 18 U.S.C. §
924(c)(1)(A). On May 18, 2011, the court sentenced Mr.
Shropshire to 51 months imprisonment for the armed bank
robbery and a consecutive term of 84 months for § 924(c)
count. (Doc. 96 in 4:10-cr-482). Mr. Shropshire did not
appeal his conviction or sentence to the Eleventh Circuit.
Shropshire filed his motion to vacate more than five years
later under 18 U.S.C. § 2255(f)(3), which allows a
petitioner to file a motion to vacate within one year from
“the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review.” He claims
that the Supreme Court's decision in Johnson
makes his conviction and sentence under § 924(c)
unconstitutional, and that the Supreme Court in Welch v.
United States, 136 S.Ct. 1257 (2016) made the
Johnson holding retroactive to cases on collateral
court ordered the Government to show cause why it should not
grant Mr. Shropshire the relief he seeks (doc. 2), and the
Government responded, arguing that the decision in
Johnson did not apply or, alternatively, was of no
consequence because Mr. Shropshire's predicate offense of
armed bank robbery was a “crime of violence”
under the “elements clause” that the Supreme
Court did not invalidate in Johnson (doc. 3). After
reviewing the Government's response, the court issued its
“Order Regarding Summary Disposition, ” giving
Mr. Shropshire an opportunity to submit any additional
materials and evidence before the court rendered its decision
without a hearing. (Doc. 5). Mr. Shropshire then submitted
his reply to the Government's response. (Doc. 6).
Unfortunately for Mr. Shropshire, Johnson does not
apply to his case.
Johnson, the Supreme Court found the “residual
clause” of the ACCA, 18 U.S.C. § 924(e),
unconstitutionally vague. Under the ACCA, a defendant
convicted as a felon in possession of a firearm under 18
U.S.C. § 922(g) and who has three prior “violent
felonies” or serious drug offense faces an enhanced
mandatory minimum sentence of fifteen years. See 18
U.S.C. § 924(e)(1). Section 924(e) defines a
“violent felony” as any crime punishable by a
term of imprisonment exceeding one year that:
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves the use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.
18 U.S.C. § 924(e)(2)(B). The first clause of the
definition is the “elements clause, ” while the
second clause contains the “enumerated crimes”
and the “residual clause” that involves the
“serious potential risk of physical injury to
another.” See Unites States v. Owens, 672 F.3d
966, 968 (11th Cir. 2012). The Supreme Court in
Johnson found the “residual clause” of
the ACCA “violent felony” definition
unconstitutionally vague, but left in tact the
“elements clause” and the “enumerated
crimes.” Johnson, 135 S.Ct. at 2563.
the ACCA does not apply to Mr. Shropshire, and the court did
not sentence him under the ACCA. Instead, Mr. Shropshire was
convicted under § 924(c), which provides for a
consecutive sentence for a defendant who uses or carries a
firearm during and in relation to a drug trafficking crime or
a “crime of violence.” See 18 U.S.C.
§ 924(c)(1)(A). A “crime of violence” under
§ 924(c) includes 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 of another 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 ...