United States Court of Appeals

For the Eighth Circuit

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No. 15-3486

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

John Prickett, Jr.

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Western District of Arkansas - Harrison

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 Submitted: April 11, 2016

 Filed: July 27, 2016

[Published]

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Before LOKEN, BEAM, and SMITH, Circuit Judges.

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PER CURIAM. 

John Prickett, Jr. shot his wife multiple times while camping in Buffalo River

National Park. Fortunately, she survived. He conditionally pleaded guilty to assault

with intent to commit murder, a violation of 18 U.S.C. § 113(a)(1) ("Count I"), and

use of a firearm during a crime of violence, a violation of 18 U.S.C.
§ 924(c)(1)(A)(iii) (Count II). Prickett moved to dismiss Count II of the indictment,

but the district court denied his motion. We affirm.

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Section 924(c)(1)(A) provides specified mandatory minimum sentences for

persons convicted of a "crime of violence" who use or carry a firearm in furtherance

of that crime. Section 924(c)(3) defines "crime of violence" as 

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.

The district court found that Prickett's conviction for assault with intent to commit

murder met the definition of a "crime of violence" under § 924(c)(3)(B). Prickett

argues that the Supreme Court's holding in Johnson v. United States, 135 S. Ct. 2551

(2015), extends to invalidate § 924(c)(3)(B) as unconstitutionally vague. If

§ 924(c)(3)(B) is unconstitutional, Prickett seeks dismissal of Count II. We review

the constitutionality of § 924(c)(3)(B) de novo. See United States v. Seay, 620 F.3d

919, 923 (8th Cir. 2010).

In Johnson, the Supreme Court held that the "residual clause" of the Armed

Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B), "denie[d] fair notice to

defendants and invite[d] arbitrary enforcement by judges." 135 S. Ct. at 2557. The

portion of the ACCA that the Court found unconstitutional defines "violent felony"

The Honorable Paul K. Holmes, III, Chief Judge, United States District Court

1

for the Western District of Arkansas 

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to include an offense that "otherwise involves conduct that presents a serious

potential risk of physical injury to another." Id. at 2555–56 (emphasis omitted)

(quoting 18 U.S.C. § 924(e)(2)(B)(ii)). The residual clause of the ACCA does

resemble the residual clause of § 924(c)(3). The clauses, however, function in

importantly different contexts. 

The ACCA's residual clause operated on "a judicially imagined 'ordinary case'

of a crime," Johnson, 135 S. Ct. at 2557, whereas § 924(c)(3)(B)'s residual clause

operates on "real-world facts." See id. This distinction is critical to the Johnson

Court's holding. The Johnson Court did "not doubt the constitutionality of laws that

call for the application of a qualitative standard such as'substantial risk' to real-world

conduct." Id. at 2561. Here, § 924(c)(3)(B) does just that. The district court

determined whether Prickett's act of shooting his wife multiple times "involve[d] a

substantial risk that physical force against the person or property of another [was]

used in the course of committing the offense." See 18 U.S.C. § 924(c)(3)(B). The

district court did not apply § 924(c)(3)(B)'s standard "to an idealized ordinary case

of the crime." See Johnson, 135 S. Ct. at 2561. Section 924(c)(3)(B) is the very type

of statute that the Johnson Court explained would not be unconstitutionally vague

under its holding. Accordingly, the district court did not err in denying Prickett's

motion to dismiss Count II.

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