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United States v. Prickett

United States Court of Appeals, Eighth Circuit

October 5, 2016

United States of America, Plaintiff- Appellee
v.
John Prickett, Jr., Defendant-Appellant

          Submitted: September 12, 2016

         Appeal from United States District Court for the Western District of Arkansas - Harrison

          Before LOKEN, BEAM, and SMITH, Circuit Judges.

          PER CURIAM

         John 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[1] denied his motion. We affirm.

         The 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 Cir. 2010).

         Section 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"

         as 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 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 course of committing the offense.

         "Section 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 § 924(c)(3)(B)).

         Prickett 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).

         In 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. § 924(e)(2)(B)(ii)).

         "[B]ecause 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 ...


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