ORDER DENYING DEFENDANT'S MOTION UNDER 28 U.S.C. § 2255 [#645] and DISMISSING WITH PREJUDICE CIVIL CASE NO. 19-12259

DENISE PAGE HOOD, District Judge.

I. Introduction

On July 25, 2017, a jury found Defendant guilty of Counts 1 (Racketeering Conspiracy) and 4 (Possession of a Firearm in Furtherance of a Drug Trafficking Crime) of the Second Superseding Indictment. [ECF No. 470] The undersigned imposed a sentence of 124 months (84 months for Court 1 and 60 months for Count 4, to be served consecutively). [ECF No. 561] The Sixth Circuit Court of Appeals affirmed Defendant's conviction and sentence in an Order issued on March 26, 2019. [ECF No. 633]

On July 31, 2019, Defendant filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (the "2255 Motion"). [ECF No. 645] The Government filed a response on August 3, 2019, and Defendant filed a reply on December 4, 2019.

II. Legal Standard

28 U.S.C. § 2255 authorizes a federal prisoner to move the district court to vacate a sentence. 28 U.S.C. § 2255(a). A defendant seeking relief under § 2255 "must allege as a basis for relief: (1) an error of constitutional magnitude; (2) a sentence imposed outside statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid." Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006) (citing Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)). When raising claims alleging errors of constitutional magnitude, a defendant must show that the constitutional error had a substantial and injurious effect or influence on the proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993); Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999). Further, relief under § 2255 requires a showing of "a fundamental defect which inherently results in a complete miscarriage of justice." Davis v. U. S., 417 U.S. 333, 346 (1974).

III. Analysis

Defendant claims that he was convicted under 18 U.S.C. § 924(c)(3)(B) and that conviction violates his constitutional rights because 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague. See, e.g., ECF No. 665, PgID 6340 ("If Petitioner was sentenced under the residual clause of § 924(c)(3), his sentence would be illegal pursuant to Davis"); ECF No. 665, PgID 6343 (Defendant "has met his burden of establishing that he has been convicted under the residual clause of 924(c)(3)."). Defendant relies on the United States Supreme Court's recent decision in United States v. Davis, 139 S.Ct. 2319 (2019). The Court notes that only Court 4 of the Second Superseding Indictment charged Defendant with a violation of 18 U.S.C. § 924(c).1 For the reasons that follow, Defendant's claim fails.

In Davis, the Supreme Court invalidated the "residual clause" in Section 924(c)'s definition of a "crime of violence." Davis, 139 S.Ct. at 2326-27. Section 924(c) authorizes heightened criminal penalties for using or carrying a firearm "during and in relation to," or possessing a firearm "in furtherance of," any federal "crime of violence or drug trafficking crime." 18 U.S.C. § 924(c)(1)(A). According to Section 924(c)(3), a crime of violence is "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 Court understands the Supreme Court's ruling in Davis — but also notes that the Supreme Court's ruling in Davis pertained only to the vagueness of the residual clause with respect to the definition of a federal "crime of violence" in Section 924(c)(3). Davis did not address any aspect of the definition of a drug trafficking crime, which is found in Section 924(c)(2) and includes "any felony punishable under the Controlled Substances Act (21 U.S.C. 801, et seq.)."

Other courts have rejected any attempt to extend the residual clause deficiency in the "crime of violence" provision to the "drug trafficking crime" provision. See, e.g., United States v. Reid, No. 0:04-353, 2018 WL 2336120, at *2 (D.S.C. Feb. 6, 2018) ("The drug trafficking portion of § 924(c)(2) does not have a residual clause, and states with particularity which charges serve as underlying crimes for a § 924(c) conviction . . . [and] the Supreme Court's holding in Johnson2 has no effect on convictions for § 924(c) based on drug trafficking crimes."). See also United States v. Chapman, 851 F.3d 363, 374-75 (5th Cir. 2017) (finding defendant's § 924(c) convictions not affected "by any alleged infirmity in the risk of force definition of crime of violence" because the predicate offenses were "based on having committed drug trafficking crimes"); Navarro v. United States, 679 F. App'x 973, 974 (11th Cir. 2017) (rejecting Johnson claim because § 924(c) conviction was "premised on drug trafficking crimes"); In re Cannon, 931 F.3d 1236, 1242 (11th Cir. 2019) (rejecting post-Davis challenge to § 924(c) conviction predicated on possession with intent to distribute cocaine and marijuana charge); United States v. Simms, 914 F.3d 229, 252 (4th Cir. 2019) (en banc) (finding residual clause in § 924(c)(3)(B) vague before Davis, but explaining that "[i]n striking it down, we leave intact . . . the entirety of the definition of `drug trafficking crime' in § 924(c)").

Defendant seems to contend that the Court relied on the residual clause when it sentenced him on Count 4. Defendant maintains that the predicate offense was "conspiracy to conduct enterprise affairs through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(d)[.]" ECF No. 665, PgID 6343. Defendant states that section "does not contain as an element the use, attempted use, or threatened use of physical force against the person . . . of another," which means the Court relied upon the residual clause. Id. Defendant asserts that the Government proof regarding Count 4 (the 924(c) conviction) was based on robberies between 2008-2015, even if the Government charged him with use of a firearm during both a drug trafficking offense and a crime of violence. For these reasons, Defendant contends that the Court should find no support for the Government's suggestion that his conviction for Count 4 rested only on a drug trafficking offense.

Defendant overlooks, however, that in Count 4 of the Second Superseding Indictment, the Government charged Defendant only with Possession of a Firearm in Furtherance of a Drug Trafficking Crime. As stated verbatim in the Second Superseding Indictment, the only allegations in Count 4 were:

COUNT FOUR

18 U.S.C. §924(c) — Possession of a Firearm in Furtherance of a Drug Trafficking Crime

ECF No. 437, PgID 2734.

Contrary to any suggestion otherwise, it was on those allegations in Count 4 that firearms were used in furtherance of a drug trafficking crime (and not on the basis of a crime of violence or other provision with a residual clause) that:

For those reasons, the Court is not persuaded by Defendant's arguments and denies Defendant's 2255 Motion.3

IV. Conclusion

Accordingly, for the reasons set forth above,

IT IS ORDERED that Defendant's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 [Dkt. No. 645] is DENIED.

IT IS FURTHER ORDERED that Civil Case No. 19-12259 (the Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255) is DISMISSED WITH PREJUDICE and designated as CLOSED.

IT IS ORDERED.