Knight v. United States

          Appeal from the United States District Court for the Eastern District of Tennessee of Chattanooga. Nos. 1:10-cr-00120-1; 1:14-cv-00132-Harry S. Mattice, Jr., District Judge.

         ON BRIEF:

          Paul D. Clement, Edmund G. LaCour Jr., Kasdin M. Mitchell, Megan M. Wold, KIRKLAND & ELLIS LLP, Washington, D.C., for Appellant.

          John P. Taddei, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Debra A. Breneman, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee.

          Before: COOK, McKEAGUE, and WHITE, Circuit Judges.

          OPINION

          HELENE N. WHITE, CIRCUIT JUDGE.

         Petitioner-Appellant Michael L. Knight appeals the district court's denial of his motion to amend his 28 U.S.C. § 2255 petition to challenge his convictions under 18 U.S.C. § 924(c) (use of a firearm during and in relation to a "crime of violence") in light of Johnson v. United States, 135 S.Ct. 2551 (2015) ("Johnson II"). While Knight's appeal was pending, the Supreme Court held that the residual clause of the definition of "crime of violence" in § 924(c)(3)(B) is unconstitutionally vague. United States v. Davis, 139 S.Ct. 2319, 2336 (2019).

         The government concedes that under Davis kidnapping in violation of 18 U.S.C. § 1201(a) is not a "crime of violence" and thus Knight's conviction under § 924(c) for using a firearm during and in relation to kidnapping must be vacated. The government maintains, however, that Knight's conviction under § 924(c) for using a firearm during assault and robbery in violation of 18 U.S.C. § 2114(a) should be affirmed because that offense qualifies under the "elements clause" of the definition of a "crime of violence" in § 924(c)(3)(A). We agree. Accordingly, we VACATE Knight's § 924(c) conviction for using a firearm during a kidnapping, AFFIRM Knight's § 924(c) conviction for using a firearm during an assault and robbery of a postal employee, and REMAND for proceedings consistent with this opinion.

         I.

         A superseding indictment charged Knight with ten counts: (1) and (2) two counts of bank fraud in violation of 18 U.S.C. § 1344; (3) assault and robbery of a person having control of mail matter or government property in violation of 18 U.S.C. § 2114(a); (4) possession of stolen property in violation of 18 U.S.C. § 2114(b); (5) use of a firearm during assault and robbery in violation of 18 U.S.C. § 924(c); (6) kidnapping in violation of 18 U.S.C. § 1201(a); (7) use of a firearm during kidnapping in violation of 18 U.S.C. § 924(c); (8) carjacking in violation of 18 U.S.C. § 2119; (9) use of a firearm during carjacking in violation of 18 U.S.C. § 924(c); and (10) possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g). Knight pled guilty to one count of bank fraud and, at the conclusion of his trial, a jury found him guilty on all other counts. The district court sentenced Knight to a total term of 955 months of imprisonment.

         After exhausting his direct appeals, Knight filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Knight later moved to amend his petition to assert claims that his convictions under § 924(c) are invalid because the residual clause of the crime-of-violence definition in § 924(c)(3)(B) is unconstitutionally vague in light of Johnson II. Observing that this court held in United States v. Taylor, 814 F.3d 340, 376-79 (6th Cir. 2016) that the residual clause of § 924(c)(3)(B) is not unconstitutionally vague, the district court denied Knight's § 2255 petition as well as his request to amend the petition. Knight appealed, and this court granted Knight's application for a certificate of appealability regarding his motion to amend to add the Johnson II claims.

         While this appeal was pending, the Supreme Court held in Davis that the residual clause of the definition of crime of violence in § 924(c)(3)(B) is unconstitutionally vague. 139 S.Ct. at 2336. The government concedes that Knight's kidnapping conviction under 18 U.S.C. § 1201(a) is not a crime of violence. We therefore vacate the related § 924(c) conviction.

         II.

         The government maintains that Knight's conviction for assault and robbery of a postal employee under 18 U.S.C. § 2114(a) is a crime of violence under the ...