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Evans v. United States

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

January 3, 2018

MAXIE DOYAL EVANS, Movant,
v.
UNITED STATES OF AMERICA, Respondents.

          MEMORANDUM OPINION

          KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE

         The 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.

         Procedural History

         Mr. 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 term[1] 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.

         Mr. 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.

         The 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.

         Discussion

         In 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.

         However, 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 ...

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