United States District Court, N.D. Alabama, Northeastern Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
movant Maxie Doyal Evans filed a motion to vacate, set aside,
or correct his sentence on June 24, 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. Evans 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.
Evans's motion to vacate is due to be DENIED.
Evans pled guilty on November 16, 2009 to one count of armed
bank robbery under 18 U.S.C. § 2113(a) and (d) and one
count of brandishing a firearm during and in relation to a
crime of violence under 18 U.S.C. § 924(c)(1)(A). On May
25, 2010, the court sentenced Mr. Evans to 37 months
imprisonment for the armed bank robbery and a consecutive
of 84 months for § 924(c) count. (Doc. 18 in
5:09-cr-403). Mr. Evans did not appeal his conviction or
sentence to the Eleventh Circuit.
Evans filed his motion to vacate more than seven 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 because
armed bank robbery does not qualify as a “crime of
violence” under any definition in § 924(c), and
that the Supreme Court in Welch v. United States,
136 S.Ct. 1257 (2016) made the Johnson holding
retroactive to cases on collateral review.
court ordered the Government to show cause why it should not
grant Mr. Evans 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. Evans'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. 4). After
reviewing the Government's response, the court issued its
“Order Regarding Summary Disposition, ” giving
Mr. Evans an opportunity to submit any additional materials
and evidence before the court rendered its decision without a
hearing. (Doc. 5). Mr. Evans submitted no additional filings.
Unfortunately for Mr. Evans, 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 offenses 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. Evans, and the court did not
sentence him under the ACCA. Instead, Mr. Evans was convicted
under § 924(c), which provides for a consecutive
sentence for a defendant who brandishes 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 ...