United States v. Josey

Full title: UNITED STATES OF AMERICA, Plaintiff, v. HAKIEM HASSAN JOSEY, Defendant.

Court: United States District Court, E.D. Michigan, Southern Division

Date published: Jun 2, 2021

13-cr-20751 (E.D. Mich. Jun. 2, 2021)

Opinion

13-cr-20751 19-cv-11182

06-02-2021

UNITED STATES OF AMERICA, Plaintiff, v. HAKIEM HASSAN JOSEY, Defendant.

MARK A. GOLDSMITH, UNITED STATES DISTRICT JUDGE

OPINION & ORDER DENYING DEFENDANT'S MOTION TO VACATE SENTENCE UNDER 28 U.S.C. § 2255 (DKT. 64)

MARK A. GOLDSMITH, UNITED STATES DISTRICT JUDGE

This matter is before the Court on Defendant Hakiem Hassan Josey's motion to vacate his sentence under 28 U.S.C. § 2255 (Dkt. 64). Josey pleaded guilty to attempted carjacking (Count I), in violation of 18 U.S.C. § 2119(1), and to use of a firearm during and in relation to a crime of violence (Count II), in violation of 18 U.S.C. § 924(c).¹ Judgment (Dkt. 54). On April 28, 2015, Josey was sentenced 10 months' imprisonment on Count I and to 84 months' imprisonment on Count II, to run consecutively. Id. In his motion to vacate, Josey contends that his sentence on Count II is invalid, as the residual clause of § 924(c) is unconstitutionally vague. For the reasons that follow, the Court denies Josey's motion.

1 This matter was originally assigned to the Honorable John O'Meara and was later reassigned to the undersigned on April 24, 2019.

Josey seeks to vacate his sentence in light of the Supreme Court's decisions in Johnson v. United States, 576 U.S. 591 (2015), and Sessions v. Dimaya, ___ U.S. ___, 138 S.Ct. 1204 (2018). In Johnson, the Supreme Court held that the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague, 576 U.S. at 597, while Dimaya invalidated the residual clause in 18 U.S.C. § 16(b), 138 S.Ct. at 1215. Because § 924(c) uses language similar to these two statutes, Josey contends that these decisions render his conviction under § 924(c) invalid.

It is unlawful under 18 U.S.C. § 924(c) to use a firearm during and in relation to a “crime of violence. The statute defines a “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 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). After Josey filed his motion, the Supreme Court determined in United States v. Davis, ___U.S. ___, 139 S.Ct. 2319, 2336 (2019), that subsection (B) of the quoted provision-the residual clause-is invalid because it is unconstitutionally vague.

Here, the predicate offense underlying Josey's § 924(c) conviction is carjacking. The Sixth Circuit has firmly held that, irrespective of the residual clause of subsection (B), carjacking constitutes a crime of violence under the elements clause of subsection (A). United States v. Gardner, 819 Fed.Appx. 335, 340 n.6, 341 (6th Cir. 2020) (citing United States v. Jackson, 918 F.3d 467, 485-486 (6th Cir. 2019)). Accordingly, Josey's conviction under § 924(c) is valid and unaffected by the Supreme Court's rulings in Johnson, Dimaya, and Davis.

Josey's motion is, therefore, denied. Because reasonable jurists would not find the Court's ruling debatable, the Court denies a certificate of appealability under 28 U.S.C. § 2253(c)(1)(a).² See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).

2 “The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rules Governing Section 2255 Proceedings, Rule 11(a).

SO ORDERED.