United States District Court, C.D. California
ORDER RE: MOTION TO VACATE
L. Quackenbush Senior United States District Judge
THE COURT is Defendant Barclay'spro se Motion
under U.S.C. § 2255 to Vacate, Set Aside, or Correct a
Sentence (ECF No. 218) ("Motion"). Defendant seeks
to vacate his conviction for Possession of a Firearm in
Furtherance of a Drug Trafficking Crime in violation of 18
U.S.C. § 924(c)(1)(A)(i) under Cause Number
bases his Motion on the Supreme Court decision in Johnson
v. U.S., 135 S.Ct. 2551 (2015), which held the
"residual clause" of the Aimed Career Criminal
Act's ("ACCA") definition of "crime of
violence" in 18 U.S.C. § 924(e)(2) void for
vagueness. Defendant asserts his possession of a firearm in
furtherance of a drug trafficking crime is unconstitutionally
vague because the statute of conviction contains a similar
definition of "crime of violence" as that in
4, 2012, Defendant pled guilty to: Theft of Government
Property (Cause No. 1 l-CR-00687); Manufacture of Marijuana;
Possession of a Machinegun; Felon in Possession of a Firearm
(Cause No. 11-CR-00061-JLQ-1); and Possession of a Firearm in
Furtherance of a Drug Trafficking Crime (Cause No.
12-CR-00043). On August 28, 2012, the court sentenced
Defendant to 108 months incarceration on all counts except
for the 924(c) firearm offense wherein Defendant received a
mandatory minimum 60 month sentence consecutive to the 108
month sentence. Defendant appealed the sentence imposed on
the 924(c) offense, but did not appeal the conviction.
See (ECF No. 37). He later withdrew his appeal.
See (ECF No. 56).
U.S.C. § 924 makes it a crime for any person who
"during and in relation to any crime of violence or chug
trafficking crime ... uses or carries a firearm, or in
furtherance of any such crime, possesses a firearm." 18
U.S.C. § 924(c)(1)(A). The statute requires a five year
minimum sentence and such sentence must run consecutive to
any other sentences. See 18 U.S.C. §§
924(c)(1)(A)(i), (c)(1)(D)(ii). For the purposes of the
statute, "drug trafficking crime" is defined as
"any felony punishable under the Controlled Substances
Act (21 U.S.C. 801 et seq.)" 18 U.S.C. § 924(c)(2).
The statute 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." 18 U.S.C. § 924(c)(3).
Johnson, the Supreme Court considered whether
"or otherwise involves conduct that presents a serious
potential risk of physical injury to another" (also
known as the "residual clause") in 18 U.S.C. §
924(e)(2) was unconstitutionally vague. Johnson, 135
S.Ct. at 2555. For a defendant with three qualifying
convictions, the ACCA increases the mandatory minimum period
of incarceration to 15 years which is above the otherwise
applicable statutory maximum. See 18 U.S.C. §
924(e)(1). Although the residual clause had been upheld by
four prior decisions, in Johnson, the Supreme Court
found the residual clause was void for vagueness. In finding
the residual clause of the ACCA void for vagueness, the
Supreme Court also stated other laws containing
"substantial risk, " "grave risk, " and
"unreasonable risk" were not automatically void for
vagueness based on the holding in Johnson. See (id.
matter, Defendant was charged with "Possession of a
Firearm in Furtherance of a Drug Trafficking
Crime" (ECF No. 1) (emphasis
added). The Information further identified the drug
trafficking crime as "manufacture of marijuana, in
violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(B)(vii)" as charged under Cause Number
11-CR-00061-JLQ. See (ECF No. 1 at 1-2). Defendant
pled guilty to the 18 U.S.C. § 924(c) charge in the
Information alleging possession of a firearm during a chug
trafficking crime. There was no evidence Defendant possessed
a firearm in furtherance of a crime of violence nor was he
charged with such. See, e.g., (ECF No. 1); (ECF No.
8); (ECF No. 32).
Motion cites to an opinion from the Eastern District of
California which applied Johnson to 18 U.S.C. §
924(c). See U.S. v. Thongsouk Theng Lattanaphom, 159
F.Supp.3d 1157 (E.D. Cal. 2016). There, the defendant was
charged with "use of a firearm during a crime of
violence." (Id. at 1159). The court evaluated
Johnson, found it applied to 18 U.S.C. §
924(e)(3), and dismissed the firearm charge. See
(id. at 1161-64).
is factually different from the matter sub judice.
The district court in Lattanaphom did not consider
or address whether the definition of "chug trafficking
crime" was void for vagueness. Additionally, in
Johnson, the Supreme Court made clear its holding
only affected the residual clause of 18 U.S.C. §
924(e)(1) and did not touch the remainder of the Armed Career
Criminal Act's definition of violent felony.
Johnson, 135 S.Ct. at 2563 ("Today's
decision does not call into question application of the
[Armed Career Criminal Act] to the four enumerated offenses,
or the remainder of the [Armed Career Criminal Act's]
definition of violent felony").
possession of a firearm during a drug trafficking erime
eonvietion did not eharge or rely on the residual elause or
any portion of the "erime of violence-definition either
in 18 U.S.C. § 924(c) or § 924(e). His conviction
rests upon the definition of "drug trafficking
offense" which Defendant does not challenge as being
unconstitutional. Accordingly, Johnson provides the
Defendant no relief. For these reasons, the Motion is Denied.