NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued December 9, 2019 Decided January 24, 2020 Before FRANK H. EASTERBROOK, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge MICHAEL Y. SCUDDER, Circuit Judge Nos. 17-3306, 17-3307 DEDRICK BUFKIN and DIAMOND Appeals from the United States District TONEY, Court for the Northern District of Indiana, Petitioners-Appellees, Hammond Division. v. Nos. 2:16-cv-00236-JVB & 2:16-cv-00181- JVB UNITED STATES OF AMERICA, Respondent-Appellant. Joseph S. Van Bokkelen, Judge. ORDER Dedrick Bufkin and Diamond Toney lured a victim from a dating website to a vehicle driven by Toney where the two defendants threatened the victim at gunpoint, robbed, bound, and gagged him, and drove him around in the trunk of the car for four hours before releasing him. A grand jury charged the two with kidnapping (18 U.S.C. § 1201(a)(1)) and with knowingly brandishing a firearm during and in relation to a crime of violence, kidnapping, in violation of 18 U.S.C. § 924(c). Page 2 Nos. 17-3306 & 17-3307 Both defendants pled guilty to the section 924(c) count and the government agreed to dismiss the kidnapping count. Section 924(c) increases the penalties for using or carrying a firearm during or in relation to certain crimes of violence and states: (3) For purposes of this subsection the term “crime of violence” means 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. 18 U.S.C.A. § 924(c)(3). Subsection A is often called the “force clause,” and subsection B, the “residual clause.” In hindsight, dismissing the kidnapping charge and relying on the crime of violence charge turned out to be the wrong choice for the government. In 2015, two years after the parties entered into the plea agreement, the Supreme Court issued an opinion in Johnson v. United States, 135 S. Ct. 2551 (2015), in which it evaluated a statute with almost identical language to § 924(c)(3)(B). The court in Johnson found that the language of the very similar statute left too much uncertainty about how much risk it takes for a crime to qualify as a violent felony and consequently held that “imposing an increased sentence under [the statute at issue] violates the Constitution’s guarantee of due process.” Id. at 2558, 2563. After the Court issued its opinion in Johnson, in 2016, Toney and Bufkin filed identical motions under 28 U.S.C. § 2255, arguing that in light of the Supreme Court’s holding in Johnson, kidnapping does not qualify as a “crime of violence” under the nearly identical wording of section 924(c), and therefore their convictions must be vacated. R. 71, 74. While these motions were pending before the district court, this court ...
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