CREIGHTON v. UNITED STATES (2019)

[Unpublished]

Damitrius Creighton pleaded guilty to conspiracy to commit Hobbs Act robbery, see 18 U.S.C. § 1951(a), and possession of a firearm in furtherance of a crime of violence. See 18 U.S.C. § 924(c)(1)(A)(i). The district court sentenced him to seventy-two months’ imprisonment: twelve months for the robbery conspiracy (after a downward departure under the sentencing guidelines) and sixty months for the firearms offense. Creighton later moved to vacate his sentence under 28 U.S.C. § 2255. Citing Johnson v. United States, ––– U.S. ––––, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015), Creighton argued that his conviction under § 924(c) was invalid because the definition of “crime of violence” in § 924(c)(3)(B) was unconstitutionally vague. The district court denied the motion based on Eighth Circuit precedent. See United States v. Prickett, 839 F.3d 697 (8th Cir. 2016), cert. denied, ––– U.S. ––––, 138 S. Ct. 1976, 201 L.Ed.2d 247 (2018). Creighton appeals.

While this appeal was pending, the Supreme Court held in United States v. Davis, ––– U.S. ––––, 139 S. Ct. 2319, 2336, 204 L.Ed.2d 757 (2019), that § 924(c)(3)(B) is unconstitutionally vague. In the wake of Davis, the government has affirmatively waived all defenses to Creighton’s motion based on waiver or procedural default. Because Davis superseded Prickett and undermined the only basis for the district court’s ruling, we vacate the judgment and remand the case for further proceedings.

PER CURIAM.