                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-3486
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                  John Prickett, Jr.

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                  for the Western District of Arkansas - Harrison
                                  ____________

                          Submitted: September 12, 2016
                             Filed: October 5, 2016
                                   [Published]
                                 ____________

Before LOKEN, BEAM, and SMITH, Circuit Judges.
                           ____________

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 court1 denied his motion. We affirm.

      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).

       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.

       “Section 924(c)(3)(B) defines a crime as a crime of violence if ‘by its nature
it involves a substantial risk that physical force against the person or property of
another may be used in the course of committing the offense.’” United States v.
Moore, 38 F.3d 977, 979 (8th Cir. 1994) (quoting 18 U.S.C. § 924(c)(3)(B)). A


      1
        The Honorable Paul K. Holmes, III, Chief Judge, United States District Court
for the Western District of Arkansas

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court’s determination of “the nature of a crime requires an examination of the
elements which compose it.” Id. “This is the categorical approach.” Id.; see also
Omar v. I.N.S., 298 F.3d 710, 714 (8th Cir. 2002) (recognizing that a categorical
approach applies to § 924(c)(3)(B)).

       Prickett does not contest that assault with intent to murder under § 113(a)(1)
“by its nature” comes within the reach of § 924(c)(3)(B). See United States v. Mills,
835 F.2d 1262, 1264 (8th Cir. 1987) (“Furthermore, the legislative history is clear
that the Congress amended section 924(c) with the express purpose of authorizing an
additional sentence to that imposed for the underlying felony, specifically including
section 113.” (citation omitted)). Instead, Prickett argues that § 924(c)(3)(B) is
invalid under Johnson. “Because § 924(c)(3)(B) is considerably narrower than the
statute invalidated by the Court in Johnson, and because much of Johnson's analysis
does not apply to § 924(c)(3)(B), [Prickett’s] argument in this regard is without
merit.” United States v. Taylor, 814 F.3d 340, 375–76 (6th Cir. 2016).

      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 unconstitutionally vague defined "violent
felony" 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)).

        “[B]ecause several factors distinguish the ACCA residual clause from
§ 924(c)(3)(B),” Taylor, 814 F.3d at 376, we join the Second and Sixth Circuits in
upholding § 924(c)(3)(B) against a vagueness challenge. See id. at 375–79; United
States v. Hill, No. 14-3872-CR, 2016 WL 4120667, at *7–12 (2d Cir. Aug. 3, 2016).
“First, the statutory language of § 924(c)(3)(B) is distinctly narrower, especially in
that it deals with physical force rather than physical injury.” Taylor, 814 F.3d at 376.

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The “[r]isk of physical force against a victim” that § 924(c)(3)(B) requires “is much
more definite than [the] risk of physical injury to a victim” that the ACCA residual
clause required. Id. at 376–77. Section 924(c)(3)(B) also contains the “narrowing
aspects” of “requiring that the risk of physical force arise ‘in the course of’
committing the offense” and “requir[ing] that the felony be one which ‘by its nature’
involves the risk that the offender will use physical force.” Id. at 377 (quoting 18
U.S.C. § 924(c)(3)(B)). Unlike “the wide judicial latitude permitted by the ACCA’s
coverage of crimes that ‘involve[] conduct’ presenting a serious risk of injury,”
§ 924(c)(3)(B) does not permit “a court to consider risk-related conduct beyond that
which is an element of the predicate crime since the provision covers offenses that
‘by [their] nature’ involve a substantial risk that force may be used.” Id. (alterations
in original). Nor does § “924(c)(3)(B)’s requirement that physical force ‘be used in
the course of committing the offense’ permit[] . . . inquiry into conduct following the
completion of the offense.” Id. Instead, “the force must be used and the risk must
arise in order to effectuate the crime. Thus, unlike the ACCA residual clause,
§ 924(c)(3)(B) does not allow courts to consider ‘physical injury [that] is remote from
the criminal act,’ a consideration that supported the Court’s vagueness analysis in
Johnson.” Id. (alteration in original) (quoting Johnson, 135 S. Ct. at 2559).

       “Second, the ACCA residual clause is linked to a confusing set of examples
that plagued the Supreme Court in coming up with a coherent way to apply the clause,
whereas there is no such weakness in § 924(c)(3)(B).” Id. at 376. The ACCA residual
clause contains a “textual link . . . by the word ‘otherwise’ to four enumerated but
diverse crimes.” Id. at 377 (citing Johnson, 135 S. Ct. at 2558). The ACCA residual
clause’s use of the word “otherwise” “force[d] courts to interpret ‘serious potential
risk’ in light of the four enumerated crimes—burglary, arson, extortion, and crimes
involving the use of explosives.’” Id. (quoting Johnson, 135 S. Ct. at 2558). But
§ 924(c)(3)(B) does not “link[] the ‘substantial risk’ standard, through the word
otherwise, ‘to a confusing list of examples.’” Id. (quoting Johnson, 135 S. Ct. at



                                          -4-
2561). Therefore, courts need not “analogiz[e] the level of risk involved in a
defendant’s conduct to burglary, arson, extortion, or the use of explosives.” Id.

       “Third, the Supreme Court reached its void-for-vagueness conclusion only after
struggling mightily for nine years to come up with a coherent interpretation of the
clause, whereas no such history has occurred with respect to § 924(c)(3)(B).” Id. at
376. Section 924(c)(3)(B) does not have a similar history, as “the Supreme Court has
not unsuccessfully attempted on multiple occasions to articulate the standard
applicable to the § 924(c)(3)(B) analysis.” Id. at 378. Nor can we transfer “the
confusion about the ACCA in pre-Johnson Supreme Court decisions . . . to
§ 924(c)(3)(B), because much of the confusion in the ACCA cases concerned the four
enumerated crimes that were linked to the residual clause.” Id. (citing Johnson, 135
S. Ct. at 2558–59).

        “Finally, the Supreme Court was clear in limiting its holding to the particular
set of circumstances applying to the ACCA residual clause, and only some of those
circumstances apply to § 924(c)(3)(B).” Id. at 376. The Court dismissed the concern
that its holding “would place in doubt ‘dozens of federal and state criminal laws[, like
§ 924(c)(3)(B), that] use terms like ‘substantial risk,’ ‘grave risk,’ and ‘unreasonable
risk.’” Id. at 378 (alteration in original) (quoting Johnson, 135 S. Ct. at 2561). “The
Court gave two reasons why that was not the case, and one of them directly
distinguishes § 924(c)(3)(B)”: it does not “link[] a phrase such as ‘substantial risk’
to a confusing list of examples.” Id. (quoting Johnson, 135 S. Ct. at 2561).

      In summary, “Johnson did not invalidate the ACCA residual clause because the
clause employed an ordinary case analysis [, the categorical approach,] but rather
because of a greater sum of several uncertainties.” Id. The Court invalidated it
because it contained a




                                          -5-
      double-layered uncertainty . . . which required courts employing the
      categorical approach first to estimate the potential risk of physical injury
      posed by “a judicially imagined ‘ordinary case’ of [the] crime” at issue,
      and then to consider how this risk of injury compared to the risk posed
      by the four enumerated crimes, which are themselves, the Court noted,
      “far from clear in respect to the degree of risk each poses.” Id. at
      2557–58 (quoting Begay v. United States, 553 U.S. 137, 143, 128 S. Ct.
      1581, 170 L. Ed. 2d 490 (2008)). It was these twin
      ambiguities—“combining indeterminacy about how to measure the risk
      posed by a crime with indeterminacy about how much risk it takes for
      the crime to qualify as a violent felony”—that offended the Constitution.
      Id. at 2558 (emphasis added); see also id. at 2560 (observing that
      “[e]ach of the uncertainties in the residual clause may be tolerable in
      isolation, but ‘their sum makes a task for us which at best could be only
      guesswork’” (quoting United States v. Evans, 333 U.S. 483, 495, 68 S.
      Ct. 634, 92 L. Ed. 823 (1948))).

Hill, 2016 WL 4120667, at *8 (second and third alterations in original) (footnote
omitted).

      We therefore conclude that Johnson does not render § 924(c)(3)(B)
unconstitutionally vague. As a result, we hold that the district court did not err in
denying Prickett's motion to dismiss Count II.
                      ______________________________




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