Cody Joseph Diaz v. United States
863 F.3d 781
| 8th Cir. | 2017Background
- Diaz entered a liquor store with a sawed-off shotgun, fired a round that passed into an adjacent gym, forced the clerk to relinquish cash and left with $600 and liquor. He later discarded the gun and was arrested.
- A grand jury charged Diaz under 18 U.S.C. § 924(c)(1)(A)(iii) for using, carrying, and discharging a firearm during and in relation to a crime of violence (Hobbs Act robbery). Diaz pleaded guilty and was sentenced to the 10-year mandatory minimum for discharge of a firearm.
- Diaz did not appeal the conviction or sentence. In 2016 he filed a § 2255 motion seeking to vacate his § 924(c) sentence, invoking Johnson v. United States as newly recognized retroactive law.
- Johnson invalidated the ACCA residual clause; Diaz argued the § 924(c)(3)(B) “substantial risk” clause is similarly vague and thus his sentence should be vacated.
- The district court denied relief but issued a certificate of appealability on whether Johnson applies to § 924(c). The Eighth Circuit reviewed de novo and affirmed denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Johnson's invalidation of the ACCA residual clause renders § 924(c)(3)(B) unconstitutionally vague | Diaz: § 924(c)(3)(B)’s “substantial risk” language is like ACCA’s residual clause and is void for vagueness under Johnson | Government: § 924(c)(3)(B) is not unconstitutionally vague; circuits disagree but majority rejects Diaz’s position | Court: Joined majority — Johnson does not invalidate § 924(c)(3)(B) for purposes of Diaz’s claim |
| Whether, even if § 924(c)(3)(B) were invalid, Diaz’s claim is timely because Hobbs Act robbery qualifies under § 924(c)(3)(A) | Diaz: Hobbs Act robbery does not categorically have as an element the use/attempted use/threatened use of physical force, so § 924(c)(3)(A) may not save his conviction | Government: Hobbs Act robbery satisfies the element-of-force clause in § 924(c)(3)(A), so Johnson’s inapplicability to (A) makes any (B) challenge untimely | Court: Hobbs Act robbery qualifies under § 924(c)(3)(A); therefore Johnson would not afford Diaz relief as to timeliness |
| Whether Supreme Court decisions addressing similar statutes (e.g., § 16(b)) change the outcome | Diaz: Pending/related Supreme Court review of statutes like § 16(b) could bear on § 924(c)(3)(B) | Government: Even if § 16(b)-style language is affected, Diaz still loses because (A) applies | Court: Future rulings on similar statutes (e.g., Dimaya) do not alter holding here because (A) independently supports the § 924(c) enhancement |
| Whether precedent binds the panel on Hobbs Act robbery as a crime of violence under § 924(c)(3)(A) | Diaz: Seeks to challenge that binding precedent | Government: Prior Eighth Circuit decisions are controlling | Court: Panel follows binding Eighth Circuit precedent holding Hobbs Act robbery meets § 924(c)(3)(A) |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidated ACCA residual clause as unconstitutionally vague)
- United States v. Prickett, 839 F.3d 697 (8th Cir. 2016) (held Johnson does not render § 924(c)(3)(B) unconstitutionally vague)
- United States v. House, 825 F.3d 381 (8th Cir. 2016) (held Hobbs Act robbery has as an element the use, attempted use, or threatened use of physical force under § 924(c)(3)(A))
- Leocal v. Ashcroft, 543 U.S. 1 (2004) (discussed limits on construing statutes that enhance punishment for crimes involving use of force)