United States v. Prickett, No. 15-3486 (8th Cir. 2016)

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Defendant pleaded guilty to assault with intent to commit murder (Count I) and use of a firearm during a crime of violence (Count II). On appeal, defendant seeks dismissal of Count II. The court concluded that defendant's challenge under 18 U.S.C. 924(c)(3)(B), Count II, is the very type of statute that the Supreme Court in Johnson v. United States explained would not be unconstitutionally vague under its holding. Accordingly, the district court did not err in denying defendant's motion to dismiss Count II and the court affirmed the judgment.

Court Description: Per Curiam - Before Loken, Beam and Smith, Circuit Judges] Criminal case - Criminal law. Constitutional challenge to 18 U.S.C. Sec. 924(c)(3)(B) rejected as the section is the very type of statute the Johnson court explained would not be unconstitutionally vague under its holding; as a result, the district court did not err in denying defendant's motion to dismiss a count alleging violation of the statutory section.

The court issued a subsequent related opinion or order on October 5, 2016.

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United States Court of Appeals For the Eighth Circuit ___________________________ No. 15-3486 ___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee v. John Prickett, Jr. lllllllllllllllllllll Defendant - Appellant ____________ Appeal from United States District Court for the Western District of Arkansas - Harrison ____________ Submitted: April 11, 2016 Filed: July 27, 2016 [Published] ____________ 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 court1 denied his motion. We affirm. 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. 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). 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 unconstitutional defines "violent felony" 1 The Honorable Paul K. Holmes, III, Chief Judge, United States District Court for the Western District of Arkansas -2- 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)). The residual clause of the ACCA does resemble the residual clause of § 924(c)(3). The clauses, however, function in importantly different contexts. The ACCA's residual clause operated on "a judicially imagined 'ordinary case' of a crime," Johnson, 135 S. Ct. at 2557, whereas § 924(c)(3)(B)'s residual clause operates on "real-world facts." See id. This distinction is critical to the Johnson Court's holding. The Johnson Court did "not doubt the constitutionality of laws that call for the application of a qualitative standard such as 'substantial risk' to real-world conduct." Id. at 2561. Here, § 924(c)(3)(B) does just that. The district court determined whether Prickett's act of shooting his wife multiple times "involve[d] a substantial risk that physical force against the person or property of another [was] used in the course of committing the offense." See 18 U.S.C. § 924(c)(3)(B). The district court did not apply § 924(c)(3)(B)'s standard "to an idealized ordinary case of the crime." See Johnson, 135 S. Ct. at 2561. Section 924(c)(3)(B) is the very type of statute that the Johnson Court explained would not be unconstitutionally vague under its holding. Accordingly, the district court did not err in denying Prickett's motion to dismiss Count II. ______________________________ -3-

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