Remand from the Supreme Court of the United States. United
States District Court for the Eastern District of Michigan at
Detroit; Nos. 2:06-cr-20465-4; 2:16-cv-12486-Nancy G.
Edmunds, District Judge.
COLLEEN P. FITZHARRIS, FEDERAL COMMUNITY DEFENDER, DETROIT,
MICHIGAN, FOR APPELLANT.
N. CRALLE, UNITED STATES ATTORNEY'S OFFICE, DETROIT,
MICHIGAN, FOR APPELLEE.
Before: SUHRHEINRICH, MOORE, and CLAY, Circuit Judges.
NELSON MOORE, Circuit Judge.
case is before us on remand following the Supreme Court's
decision in Sessions v. Dimaya, 138 S.Ct. 1204
(2018). Petitioner Erick Manners argues that his conviction
under 18 U.S.C. § 924(c) must be vacated because the
predicate offense, 18 U.S.C. § 1959(a)(3), is not a
"crime of violence" for purposes of § 924(c).
disagree, and we AFFIRM the judgment of the
district court denying Manners's motion to vacate.
2011, Manners pleaded guilty to two counts: 1) assault with a
dangerous weapon in aid of racketeering, 18 U.S.C. §
1959(a)(3), and 2) use of a firearm during and in relation to
a crime of violence, 18 U.S.C. § 924(c). The district
court sentenced him to eighteen months of imprisonment on the
first count and 120 months on the second count, to be served
2016, Manners filed a motion to vacate under 28 U.S.C. §
2255 in light of Johnson v. United States, 135 S.Ct.
2551 (2015). He argued that 1) his conviction under §
924(c) could not be based on the statute's residual
clause because Johnson invalidated a similar
residual clause in the Armed Career Criminal Act
("ACCA"), and 2) his predicate offense did not have
as an element the use, attempted use, or threatened use of
physical force, so this offense could not fall under §
924(c)(3)'s elements clause. The district court denied
Manners's motion, explaining that it was bound by this
court's holding that Johnson did not invalidate
§ 924(c)(3)'s residual clause. See United States
v. Taylor, 814 F.3d 340, 379 (6th Cir. 2016),
abrogated by United States v. Davis, 139 S.Ct. 2319
(2019). The district court held in the alternative that
Manners's argument about the inapplicability of §
924(c)(3)'s elements clause to his predicate offense was
affirmed the district court's denial of Manners's
motion to vacate, relying on then-binding precedent in
Taylor. Manners v. United States, No.
17-1171, 2017 WL 3613308, at *2 (6th Cir. Aug. 22, 2017)
(order), vacated, 139 S.Ct. 56 (2018) (mem.). We did
not address the district court's alternative holding that
Manners's conviction qualified as a crime of violence
under § 924(c)(3)'s elements clause. Id.
thereafter petitioned the Supreme Court for a writ of
certiorari, and the Court granted the petition and remanded
the case for further consideration in light of Sessions
v. Dimaya, which held that the residual clause of 18
U.S.C. § 16 was unconstitutionally vague. 138 S.Ct. at
1223. After the Supreme Court remanded this case to us, it
expressly determined that § 924(c)(3)'s residual
clause, 18 U.S.C. § 924(c)(3)(B), also was
unconstitutionally vague. Davis, 139 S.Ct. at 2336.