Submitted: September 12, 2016
from United States District Court for the Western District of
Arkansas - Harrison
LOKEN, BEAM, and SMITH, Circuit Judges.
Prickett, Jr. shot his wife multiple times while camping in
Buffalo River National Park. Fortunately, she survived. He
conditionally pleaded guilty to assault with intent to commit
murder, a violation of 18 U.S.C. § 113(a)(1)
("Count I"), and use of a firearm during a crime of
violence, a violation of 18 U.S.C. § 924(c)(1)(A)(iii)
("Count II"). Prickett moved to dismiss Count II of
the indictment, but the district court denied his
motion. We affirm.
district court found that Prickett's conviction for
assault with intent to commit murder met the definition of a
"crime of violence" under § 924(c)(3)(B).
Prickett argues that the Supreme Court's holding in
Johnson v. United States, 135 S.Ct. 2551 (2015),
extends to invalidate § 924(c)(3)(B) as
unconstitutionally vague. If § 924(c)(3)(B) is
unconstitutional, Prickett seeks dismissal of Count II. We
review the constitutionality of § 924(c)(3)(B) de novo.
See United States v. Seay, 620 F.3d 919, 923 (8th
924(c)(1)(A) provides specified mandatory minimum sentences
for persons convicted of a "crime of violence" who
use or carry a firearm in furtherance of that crime. Section
924(c)(3) defines "crime of violence"
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.
924(c)(3)(B) defines a crime as a crime of violence if
'by its nature it involves a substantial risk
that physical force against the person or property of another
may be used in the course of committing the
offense.'" United States v. Moore, 38 F.3d
977, 979 (8th Cir. 1994) (quoting 18 U.S.C. §
924(c)(3)(B)). A court's determination of "the
nature of a crime requires an examination of the elements
which compose it." Id. "This is the
categorical approach." Id.; see also Omar
v. I.N.S., 298 F.3d 710, 714 (8th Cir. 2002)
(recognizing that a categorical approach applies to §
does not contest that assault with intent to murder under
§ 113(a)(1) "by its nature" comes within the
reach of § 924(c)(3)(B). See United States v.
Mills, 835 F.2d 1262, 1264 (8th Cir. 1987)
("Furthermore, the legislative history is clear that the
Congress amended section 924(c) with the express purpose of
authorizing an additional sentence to that imposed for the
underlying felony, specifically including section 113."
(citation omitted)). Instead, Prickett argues that §
924(c)(3)(B) is invalid under Johnson. "Because
§ 924(c)(3)(B) is considerably narrower than the statute
invalidated by the Court in Johnson, and because
much of Johnson's analysis does not apply to
§ 924(c)(3)(B), [Prickett's] argument in this regard
is without merit." United States v. Taylor, 814
F.3d 340, 375-76 (6th Cir. 2016).
Johnson, the Supreme Court held that the
"residual clause" of the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e)(2)(B), "denie[d] fair
notice to defendants and invite[d] arbitrary enforcement by
judges." 135 S.Ct. at 2557. The portion of the ACCA that
the Court found unconstitutionally vague defined
"violent felony" to include an offense that
"otherwise involves conduct that presents a serious
potential risk of physical injury to another."
Id. at 2555-56 (emphasis omitted) (quoting 18 U.S.C.
several factors distinguish the ACCA residual clause from
§ 924(c)(3)(B), " Taylor, 814 F.3d at 376,
we join the Second and Sixth Circuits in upholding §
924(c)(3)(B) against a vagueness challenge. See id.
at 375-79; United States v. Hill, No. 14-3872-CR,
2016 WL 4120667, at *7-12 (2d Cir. Aug. 3, 2016).
"First, the statutory language of § 924(c)(3)(B) is
distinctly narrower, especially in that it deals with
physical force rather than physical injury."
Taylor, 814 F.3d at 376. The "[r]isk of
physical force against a victim" that §
924(c)(3)(B) requires "is much more definite than [the]
risk of physical injury to a victim" that the ACCA
residual clause required. Id. at 376-77. Section
924(c)(3)(B) also contains the "narrowing aspects"
of "requiring that the risk of physical force arise
'in the course of' committing the offense" and
"requir[ing] that the felony be one which 'by its
nature' involves the risk that the offender will use
physical force." Id. at 377 (quoting 18 U.S.C.
§ 924(c)(3)(B)). Unlike "the wide judicial latitude
permitted by the ACCA's coverage of crimes that
'involve conduct' presenting a serious risk of
injury, " § 924(c)(3)(B) does not permit "a
court to consider risk-related conduct beyond that which is
an element of the predicate crime since the provision covers
offenses that 'by [their] nature' involve a
substantial risk that force may be used." Id.
(alterations in original). Nor does §
"924(c)(3)(B)'s requirement that physical force
'be used in the course of committing the
offense' permit . . . inquiry into conduct following
the completion of the offense." Id. Instead,
"the force must be used and the risk ...