1

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

UNITED STATES OF AMERICA 

 

v. 

DIAMOND TONEY and DEDRICK 

BUFKIN 

 Case No.: 2:13-CR-54 JVB 

OPINION AND ORDER 

Following Diamond Toney’s and Dedrick Bufkin’s guilty pleas to brandishing a firearm 

during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c), the Court 

sentenced them to imprisonment. According to the indictment, the predicate offense for the 

convictions—the crime of violence—was kidnapping as set out in 18 U.S.C. § 1201(a)(1). 

Following the Supreme Court’s decision in Johnson v. United States, 135 S.Ct. 2551 (2015), 

both defendants moved to vacate their convictions pursuant to 28 U.S.C. § 2255(a). While they 

filed their petitions separately, they are identical. Therefore, the petitions can be addressed in a 

single order. 

Both sides agree that the petitions are timely, but disagree whether kidnapping is in fact a 

crime of violence. And although both defendants had plea agreements with the government 

waiving their rights to contest their convictions collaterally as they’re doing now,1

 the 

                                                            

1

 Both plea agreements contain the following waivers: 

. . . I expressly waive my right to appeal or to contest my conviction 

and my sentence or the manner in which my conviction or my sentence was 

determined or imposed, to any Court on any ground, including any claim of 

ineffective assistance of counsel unless the claimed ineffective assistance of 

counsel relates directly to this waiver or its negotiation, including any appeal 

under Title 18, United States Code, Section 3742 or any post-conviction 

proceeding, including but not limited to, a proceeding under Title 28, United 

States Code, Section 2255. 

(Bufkin Plea Agreement, DE 24 at 4; Toney Plea Agreement, DE 32 at 4.)
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government’s response is silent on this issue. It’s not clear whether this silence is by design so as 

to constitute the government’s own waiver or an oversight so as to constitute a forfeiture. The 

Court will not second-guess the government, which knows its cases from the outset and knows 

them best. Whatever the reason, the plea agreement waiver question is not before the Court and 

the outcome of the § 2255 petition rests on the merits of the parties’ arguments about whether 

kidnapping is a crime of violence as defined in § 924(c)(3).2 As the Seventh Circuit Court of 

Appeals recently held in the context of a direct appeal, but which equally applies here, it is not. 

See United States v. Jenkins, 849 F.3d 390 (7th Cir. 2017). 

 As charged in this case, to establish guilt the government had to prove that each 

defendant brandished a firearm (or aided and abetted such brandishing) during and in relation to 

a crime of violence. (See Indict., Count 2, DE 15 at 2); 18 U.S.C. § 924 (c)(1)(A)(ii). Subsection 

924(c)(3) defines a crime of violence as— 

an offense that is a felony and— 

(A)has as element the use, attempted use, or threatened use of physical force 

against the person or property of another,3

 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.4

Id. 

 As related to this case, the purported crime of violence was kidnapping. (Indict., Count 2, 

DE 15 at 2). 

                                                            

2

 Both defendants were also charged with the offenses of kidnapping in Count 1 of the indictment, but the 

government moved at each defendant’s sentencing for that count to be dismissed. 

3

 Subsection (A) is commonly called the “force clause.” 

4

 Subsection (B) is commonly called the “residual clause.”
3

 While the petitions to vacate the convictions were pending, the Court of Appeals for the 

Seventh Circuit issued an opinion in United States v. Jenkins, 849 F.3d 390. Defendants 

supplemented their briefs with a notice of this opinion to which the government has not 

responded. 

Jenkins held that “[b]ecause the Residual Clause, § 924(c)(3)(B), is unconstitutionally 

vague and kidnapping under § 1201(a) does not have, as an element, the use, threatened use, or 

attempted use of physical force” defendant Jenkins’s conviction had to be reversed. In that case, 

the government presented arguments that are repeated in the instant case but the Court of 

Appeals rejected them all. The government’s error was to rely on pre-Johnson cases, see Jenkins, 

849 F.3d at 394, and to conflate the “force clause” with the “residual clause,” id. at 393. 

None of the pre-Johnson cases cited by the government in Jenkins (nor any of such cases 

cited by the government here) “found that kidnapping had physical force as an element, and one 

even expressly stated that it does not.” Jenkins, 849 F.3d at 394 (referring to Delgado-Hernandez 

v. Holder, 697 F.3d 1125, 1130 (9th Cir. 2012) (“The federal kidnapping statute has no force 

requirement . . . .”)). Rather, while kidnapping generally invokes the images of great danger and 

violence, kidnapping can be “accomplished without physical force” as well. Id. at 393. After all, 

a person commits a kidnapping offense when he “unlawfully seizes, confines, inveigles, decoys, 

kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person” and 

willfully transports him “in interstate or foreign commerce.” 18 U.S.C. § 1201(a). 

Both the first element of the offense—unlawfully seizing, confining, inveigling, 

decoying, kidnaping, abducting, or carrying away—and the second one—holding for ransom or 

reward or otherwise—can be accomplished without force, even if that is not the usual scenario 
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for kidnappings. That is to say, one cannot escape the charge of kidnapping if he can restrain 

himself from use of force and sets out to abduct another “civilly”: 

For example, a perpetrator could lure his victim into a room and lock the victim 

inside against his or her will. This would satisfy the holding element of kidnapping 

under § 1201(a) without using, threatening to use, or attempting to use physical 

force. 

Jenkins, 849 F.3d 390 at 393. While the government argues that kidnapping presents a constant 

danger of escalation, which could result in force being used even when none was planned, the 

force is simply not an element of the crime of kidnapping. 

As for the residual clause of the definition of the crime of violence, that is, § 

924(c)(3)(B), the Court of Appeals found it unconstitutionally vague. See Jenkins, 849 F.3d at 

394 (citing United States v. Cardena, 842 F.3d 959, 996 (7th Cir. 2016). 

For these reasons, and because the government waived or forfeited any argument about 

the defendants being foreclosed from bringing § 2255 petitions in this Court, the Court grants 

both petitions and vacates § 924(c) convictions for both Defendant Diamond Toney and 

Defendant Dedrick Bufkin. 

SO ORDERED on September 15, 2017. 

 s/ Joseph S. Van Bokkelen 

 JOSEPH S. VAN BOKKELEN 

 UNITED STATES DISTRICT JUDGE