Taylor v. USA
ORDER entered by Judge Nanette Laughrey. Petitioner's Amended Motion to Vacate Conviction under 28 U.S.C. § 2255, [Doc. 4 ], is denied. (Farrington, Elizabeth)
UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
UNITED STATES OF AMERICA,
Case No. 4:16-cv-00643-NKL
(Crim. Case No. 08-00194-01-CR-W-NKL)
In view of the United States Supreme Court’s decision in Johnson v. United States, 135
S.Ct. 2551 (2015), Brannon Taylor moves under 28 U.S.C. § 2255 to vacate his conviction for use
of a firearm during a crime of violence. For the reasons discussed below, the motion to vacate is
denied. The Court also denies a certificate of appealability.
In 2009, Petitioner Brannon Taylor pleaded guilty to one count of carjacking under 18
U.S.C. § 2119, and one count of use of a firearm during a crime of violence, 18 U.S.C.
§ 924(c)(1)(A), that is, during the carjacking. This Court sentenced him to 125 months of
imprisonment on the carjacking count and a consecutive 84 months on the firearm count. Taylor
did not appeal his conviction.
A “crime of violence,” for purposes of § 924(c)(1)(A), is:
(3) … 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
(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). The judgment entered against Taylor does not distinguish between the
force clause, subsection (A), or the residual clause, subsection (B), of § 924(c)(3). See Case No.
08-0194 [Doc. 47].
Taylor’s conviction and sentence are proper if carjacking qualifies as a crime of violence
under either the residual clause, § 924(c)(3)(B), or the force clause, § 924(c)(3)(A). Taylor argues
the residual clause is unconstitutionally vague in view the Supreme Court’s Johnson v. United
States analysis, and that the underlying crime of carjacking categorically fails to qualify as a crime
of violence, so his conviction for use of a firearm during a crime of violence must be vacated.
Taylor contends that § 924(c)(3)(B) is “materially indistinguishable” from the Armed
Career Criminal Act (ACCA) residual clause that Johnson struck down and asks the Court to
declare § 924(c)(3)(B) likewise unconstitutionally vague. [Doc. 4, p. 2]. The Eighth Circuit’s
recent opinion in United States v. Prickett forecloses this argument. United States v. Prickett, No.
15-3486, 2016 U.S. App. LEXIS 18032 (8th Cir. Oct. 5, 2016) (“Because several factors
distinguish the ACCA residual clause from § 924(c)(3)(B) . . . we join the Second and Sixth
Circuits in upholding § 924(c)(3)(B) against a vagueness challenge.”) (internal citations omitted).
As a result, Taylor’s sentence may be upheld under § 924(c)(3)(B) and the Court need not
address Taylor’s force clause argument.
Certificate of Appealability
A certificate of appealability is issued only “if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The applicant must
demonstrate “that reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues presented were adequate
to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(quotation and citation omitted).
For the reasons discussed above, Taylor has not made a substantial showing of the denial of
a constitutional right. Consequently, the Court denies a certificate of appealability.
For the foregoing reasons, Petitioner Taylor’s motion to vacate is denied, and a certificate
of appealability is denied.
s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: October 12, 2016
Jefferson City, Missouri
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