Submitted: February 10, 2017
from United States District Court for the District of
Minnesota - Minneapolis
LOKEN, COLLOTON, and KELLY, Circuit Judges.
Joseph Diaz carried a sawed-off shotgun into a liquor store,
firing a round as he entered the store that passed through a
wall and shattered a mirror in the gym next door where two
people were working out. Diaz ordered the store clerk to
empty the cash register and left the store with $600 cash and
several bottles of liquor. Police officers soon arrived. Diaz
dropped the money and ran, tossing the shotgun into a
snowbank. He fled to a nearby rooftop where the officers took
him into custody. A grand jury charged that Diaz "did
knowingly use, carry and discharge a firearm . . . during and
in relation to a crime of violence . . . specifically, the
armed robbery of J's Liquors, " in violation of 18
U.S.C. § 924(c)(1)(A)(iii). Diaz pleaded guilty. In
February 2012, the district court sentenced him to ten years
in prison, the mandatory minimum sentence "if the
firearm is discharged." Diaz did not appeal.
2016, Diaz filed this motion to vacate, set aside, or correct
his sentence under 28 U.S.C. § 2255. To avoid the
one-year statute of limitations, Diaz claimed that the right
to have his § 924(c) sentence vacated was initially
recognized by the Supreme Court's retroactive decision in
Johnson v. United States, 135 S.Ct. 2551 (2015),
which declared unconstitutional the "residual
clause" in § 924(e)(2)(B)(ii), part of the Armed
Career Criminal Act's definition of the term
"violent felony." The district court denied the
motion but issued a certificate of appealability because of
uncertainty regarding whether the ruling in Johnson
applies to § 924(c) sentence enhancements. Diaz appeals.
Reviewing this issue of law de novo, we affirm.
applied to Diaz's offense, § 924(c)(1)(A)(iii)
provides that "any person who, during and in relation to
any crime of violence . . . for which the person may be
prosecuted in a court of the United States, uses or carries a
firearm . . . shall, in addition to the punishment provided
for such crime of violence . . . (iii) if the firearm is
discharged, be sentenced to a term of imprisonment of not
less than 10 years." "Crime of violence" is
defined in § 924(c)(3) as a felony offense that:
(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.
Diaz's indictment charged him with committing Hobbs Act
Robbery, 18 U.S.C. § 1951(a), as the crime of violence.
The Hobbs Act defines robbery to include "the unlawful
taking or obtaining of personal property from the person or
in the presence of another, against his will, by means of
actual or threatened force, or violence, or fear of injury .
. . to his person or property." § 1951(b).
appeal, Diaz argues that the "substantial risk"
provision in § 924(c)(3)(B) is similar to the residual
clause at issue in Johnson and therefore is
unconstitutionally vague. After the district court denied
Diaz's § 2255 motion, we joined the majority of
circuits that have addressed this question and held
"that Johnson does not render §
924(c)(3)(B) unconstitutionally vague." United
States v. Prickett, 839 F.3d 697, 700 (8th Cir. 2016),
petition for cert. filed, No. 16-7373 (Dec. 30,
Supreme Court has granted certiorari to determine whether
Johnson affects the validity of 18 U.S.C. §
16(b), a statute with language similar to §
924(c)(3)(B). Lynch v. Dimaya, 137 S.Ct. 31 (2016),
granting review of Dimaya v. Lynch, 803 F.3d 1110
(9th Cir. 2015). But we conclude the Court's decision in
Dimaya will not affect Diaz's appeal. Even if
§ 924(c)(3)(B) is unconstitutionally vague after
Johnson, Diaz's claim for § 2255 relief is
timely only if Johnson also invalidates the
use-or-threatened-use-of-force clause in § 924(c)(3)(A).
No circuit court has held that Johnson cast doubt on
the validity of statutes that enhance the punishment for
crimes involving the use of force. Cf. Leocal v.
Ashcroft, 543 U.S. 1, 8-11 (2004).
argues that Hobbs Act Robbery does not qualify as a crime of
violence under § 924(c)(3)(A). We reject that
contention. Like other circuits, we have expressly held that
"Hobbs Act robbery has 'as an element the use,
attempted use, or threatened use of physical force against
the person of another, '" the operative term in
§ 924(c)(3)(A). United States v. House, 825
F.3d 381, 387 (8th Cir. 2016) ...