United States District Court, W.D. Tennessee, Western Division
H. MAYS, JR. UNITED STATES DISTRICT JUDGE
the Court is Movant Johnnie Davis' June 17, 2016 Motion
to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C.
§ 2255. (ECF No. 1.) The United States of America (the
“Government”) responded on February 16, 2017.
(ECF No. 8.) Davis replied on March 6, 2017. (ECF No. 9.)
following reasons, the Court DENIES Davis' motion and
DENIES a certificate of appealability (“COA”).
January 2008, Davis pled guilty to two counts of using and
carrying a firearm during and in relation to a crime of
violence in violation of 18 U.S.C. § 924(c). (No.
2:07-cr-20040, ECF No. 105.) The Court sentenced Davis to 35
years in prison. (Id., ECF No. 139.) The Sixth
Circuit vacated that sentence and remanded for resentencing.
See United States v. Davis, 365 Fed.Appx. 615, 616
(6th Cir. 2010). On remand, the Court again sentenced Davis
to 35 years in prison. (No. 2:07-cr-20040, ECF No. 302.) The
Sixth Circuit affirmed that sentence in June 2012. See
United States v. Davis, 485 Fed.Appx. 762, 762 (6th Cir.
filed the instant motion on June 17, 2016. He contends his
convictions under 18 U.S.C. § 924(c) are unlawful for
two reasons: (1) under Johnson v. United States, 135
S.Ct. 2551 (2015), 18 U.S.C. § 924(c)(3)(B) is
unconstitutionally vague; and (2) 18 U.S.C. §
924(c)(3)(A) cannot support his convictions.
of Davis' arguments is well-taken. The Sixth Circuit
has held that Johnson does not invalidate 18 U.S.C.
§ 924(c)(3)(B). Even if Johnson invalidated
§ 924(c)(3)(B), § 924(c)(3)(A) independently
supports Davis' convictions.
U.S.C. § 924(c) imposes mandatory minimum sentences for
anyone who uses or carries a firearm during or in relation to
a “crime of violence.” The statute defines
“crime of violence” as:
[A]n 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 substantial risk that
physical force against the person or property of another may
be used in the course of committing the offense.
18 U.S.C. § 924(c)(3). Davis pled guilty to using and
carrying a firearm during and in relation to two crimes of
violence: robbery of a credit union, in violation of 18
U.S.C. § 2113(a), and bank robbery, in violation of 18
U.S.C. § 2113(a).
United States v. Taylor, the Sixth Circuit rejected
the Johnson-based vagueness challenge to §
924(c)(3)(B) that Davis makes. 814 F.3d 340, 375 (6th Cir.
2016). Although Taylor's future is uncertain,
Taylor is binding on the Court. See United
States v. Richardson, 906 F.3d 417, 425 (6th Cir. 2018)
(“[Taylor] forecloses Richardson's
argument that [§ 924(c)'s] residual clause is
unconstitutional. But more recent decisions from this court
and the Supreme Court, however, suggest that Taylor
stands on uncertain ground. . . . Nevertheless, we ...