United States v. John Prickett, Jr.

Filing

PER CURIAM OPINION FILED - THE COURT: James B. Loken, C. Arlen Beam and Lavenski R. Smith (PUBLISHED) [4430757] [15-3486]

United States Court of Appeals
For the Eighth Circuit
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No. 15-3486
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
John Prickett, Jr.
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Harrison
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Submitted: April 11, 2016
Filed: July 27, 2016
[Published]
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Before LOKEN, BEAM, and SMITH, Circuit Judges.
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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.

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§ 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
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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.
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