Diaz v. United States
| Decision Date | 10 July 2017 |
| Docket Number | No. 16-3160,16-3160 |
| Parties | Cody Joseph DIAZ, Petitioner-Appellant v. UNITED STATES of America, Respondent-Appellee |
| Court | U.S. Court of Appeals — Eighth Circuit |
863 F.3d 781
Cody Joseph DIAZ, Petitioner-Appellant
v.
UNITED STATES of America, Respondent-Appellee
No. 16-3160
United States Court of Appeals, Eighth Circuit.
Submitted: February 10, 2017
Filed: July 10, 2017
Counsel who presented argument on behalf of the appellant was Steven James Wright, of Minneapolis, MN.
Counsel who presented argument on behalf of the appellee was Lisa D. Kirkpatrick, AUSA, of Saint Paul, MN. The following attorney(s) appeared on the appellee brief; LeeAnn K. Bell, AUSA, of Minneapolis, MN.
Before LOKEN, COLLOTON, and KELLY, Circuit Judges.
LOKEN, Circuit Judge.
Cody Joseph Diaz carried a sawed-off shotgun into a liquor store, firing a round as he entered the store that passed through a wall and shattered a mirror in the gym next door where two people were working out. Diaz ordered the store clerk to empty the cash register and left the store with $600 cash and several bottles of liquor. Police officers soon arrived. Diaz dropped the money and ran, tossing the shotgun into a snowbank. He fled to a nearby rooftop where the officers took him into custody. A grand jury charged that Diaz "did knowingly use, carry and discharge a firearm ... during and in relation to a crime of violence ... specifically, the armed robbery of J's Liquors," in violation of 18 U.S.C. § 924(c)(1)(A)(iii). Diaz pleaded guilty. In February 2012, the district court1 sentenced him to ten years in prison, the mandatory minimum sentence "if the firearm is discharged." Diaz did not appeal.
In June 2016, Diaz filed this motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. To avoid the one-year statute of limitations, Diaz claimed that the right to have his § 924(c) sentence vacated was initially recognized by the Supreme Court's retroactive decision in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which declared unconstitutional the "residual clause" in § 924(e)(2)(B)(ii), part of the Armed Career Criminal Act's definition of the term "violent felony." The district
court denied the motion but issued a certificate of appealability because of uncertainty regarding whether the ruling in Johnson applies to § 924(c) sentence enhancements. Diaz appeals. Reviewing this issue of law de novo , we affirm.
As applied to Diaz's offense, § 924(c)(1)(A)(iii) provides that "any person who, during and in relation to any crime of violence ... for which the person may be prosecuted in a court of the United States, uses or carries a firearm ... shall, in addition to the punishment provided for such crime of violence ... (iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years." "Crime of violence" is defined in § 924(c)(3) as a felony offense that:
(A) has as an...
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