United States v. Davis

(Slip Opinion) OCTOBER TERM, 2018 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

UNITED STATES v. DAVIS ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

No. 18–431. Argued April 17, 2019—Decided June 24, 2019

Respondents Maurice Davis and Andre Glover were charged with mul-

tiple counts of Hobbs Act robbery and one count of conspiracy to

commit Hobbs Act robbery. They were also charged under 18 U. S. C.

§924(c), which authorizes heightened criminal penalties for using,

carrying, or possessing a firearm in connection with any federal

“crime of violence or drug trafficking crime.” §924(c)(1)(A). “Crime of

violence” is defined in two subparts: the elements clause,

§924(c)(3)(A), and the residual clause, §924(c)(3)(B). The residual

clause in turn defines a “crime of violence” as a felony “that by its na-

ture, involves a substantial risk that physical force against the per-

son or property of another may be used in the course of committing

the offense.” Ibid. A jury convicted the men on most of the underly-

ing charges and on two separate §924(c) charges for brandishing a

firearm in connection with their crimes. The Fifth Circuit initially

rejected their argument that §924(c)’s residual clause is unconstitu-

tionally vague, but on remand in light of Sessions v. Dimaya, 584

U. S. ___, the court reversed course and held §924(c)(3)(B) unconsti-

tutional. It then held that Mr. Davis’s and Mr. Glover’s convictions

on the §924(c) count charging robbery as the predicate crime of vio-

lence could be sustained under the elements clause, but that the oth-

er count—which charged conspiracy as a predicate crime of vio-

lence—could not be upheld because it depended on the residual

clause.

Held: Section 924(c)(3)(B) is unconstitutionally vague. Pp. 4–25.

(a) In our constitutional order, a vague law is no law at all. The

vagueness doctrine rests on the twin constitutional pillars of due pro-

cess and separation of powers. This Court has recently applied the

doctrine in two cases involving statutes that bear more than a pass-

2 UNITED STATES v. DAVIS

Syllabus

ing resemblance to §924(c)(3)(B)’s residual clause—Johnson v. United

States, 576 U. S. ___, which addressed the residual clause of the

Armed Career Criminal Act (ACCA), and Sessions v. Dimaya, which

addressed the residual clause of 18 U. S. C. §16. The residual clause

in each case required judges to use a “categorical approach” to deter-

mine whether an offense qualified as a violent felony or crime of vio-

lence. Judges had to disregard how the defendant actually commit-

ted the offense and instead imagine the degree of risk that would

attend the idealized “ ‘ordinary case’ ” of the offense. Johnson, 576

U. S., at ___. The Court held in each case that the imposition of crim-

inal punishments cannot be made to depend on a judge’s estimation

of the degree of risk posed by a crime’s imagined “ordinary case.” The

government and lower courts have long understood §924(c)(3)(B) to

require the same categorical approach. Now, the government asks

this Court to abandon the traditional categorical approach and hold

that the statute commands a case-specific approach that would look

at the defendant’s actual conduct in the predicate crime. The gov-

ernment’s case-specific approach would avoid the vagueness prob-

lems that doomed the statutes in Johnson and Dimaya and would not

yield to the same practical and Sixth Amendment complications that

a case-specific approach under the ACCA and §16 would, but this ap-

proach finds no support in §924(c)’s text, context, and history. Pp. 4–

9.

(b) This Court has already read the nearly identical language of

§16(b) to mandate a categorical approach. See Leocal v. Ashcroft, 543

U. S. 1, 7. And what is true of §16(b) seems at least as true of

§924(c)(3)(B). The government claims that the singular term “of-

fense” carries the “generic” meaning in connection with the elements

clause but a “specific act” meaning in connection with the residual

clause, but nothing in §924(c)(3)(B) rebuts the presumption that the

single term “offense” bears a consistent meaning. This reading is re-

inforced by the language of the residual clause itself, which speaks of

an offense that, “by its nature,” involves a certain type of risk. Pp. 9–

12.

(c) The categorical reading is also reinforced by §924(c)(3)(B)’s role

in the broader context of the federal criminal code. Dozens of federal

statutes use the phrase “crime of violence” to refer to presently

charged conduct. Some cross-reference §924(c)(3)’s definition, while

others are governed by the virtually identical definition in §16. The

choice appears completely random. To hold that §16(b) requires the

categorical approach while §924(c)(3)(B) requires the case-specific

approach would make a hash of the federal criminal code. Pp. 12–13.

(d) Section 924(c)(3)(B)’s history provides still further evidence that

it carries the same categorical-approach command as §16(b). When

Cite as: 588 U. S. ____ (2019) 3

Syllabus

Congress enacted the definition of “crime of violence” in §16 in 1984,

it also employed the term in numerous places in the Act, including

§924(c). The two statutes, thus, were originally designed to be read

together. And when Congress added a definition of “crime of vio-

lence” to §924(c) in 1986, it copied the definition from §16 without

making any material changes to the language of the residual clause,

which would have been a bizarre way of suggesting that the two

clauses should bear drastically different meanings. Moreover,

§924(c) originally prohibited the use of a firearm in connection with

any federal felony, before Congress narrowed §924(c) in 1984 by lim-

iting its predicate offenses to “crimes of violence.” The case-specific

reading would go a long way toward nullifying that limitation and re-

storing the statute’s original breadth. Pp. 14–17.

(e) Relying on the canon of constitutional avoidance, the govern-

ment insists that if the case-specific approach does not represent the

best reading of the statute, it is nevertheless the Court’s duty to

adopt any “fairly possible” reading to save the statute from being un-

constitutional. But it is doubtful the canon could play a proper role

in this case even if the government’s reading were “possible.” This

Court has sometimes adopted the narrower construction of a criminal

statute to avoid having to hold it unconstitutional if it were construed

more broadly, but it has not invoked the canon to expand the reach of

a criminal statute in order to save it. To do so would risk offending

the very same due process and separation of powers principles on

which the vagueness doctrine itself rests and would sit uneasily with

the rule of lenity’s teaching that ambiguities about a criminal stat-

ute’s breadth should be resolved in the defendant’s favor. Pp. 17–19.

903 F. 3d 483, affirmed in part, vacated in part, and remanded.

GORSUCH, J., delivered the opinion of the Court, in which GINSBURG,

BREYER, SOTOMAYOR, and KAGAN, JJ., joined. KAVANAUGH, J., filed a

dissenting opinion, in which THOMAS and ALITO, JJ., joined, and in

which ROBERTS, C. J., joined as to all but Part II–C.

Cite as: 588 U. S. ____ (2019) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 18–431

_________________

UNITED STATES, PETITIONER v. MAURICE LAMONT

DAVIS AND ANDRE LEVON GLOVER

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[June 24, 2019]

JUSTICE GORSUCH delivered the opinion of the Court.

In our constitutional order, a vague law is no law at all.

Only the people’s elected representatives in Congress have

the power to write new federal criminal laws. And when

Congress exercises that power, it has to write statutes

that give ordinary people fair warning about what the law

demands of them. Vague laws transgress both of those

constitutional requirements. They hand off the legisla-

ture’s responsibility for defining criminal behavior to

unelected prosecutors and judges, and they leave people

with no sure way to know what consequences will attach

to their conduct. When Congress passes a vague law, the

role of courts under our Constitution is not to fashion a

new, clearer law to take its place, but to treat the law as a

nullity and invite Congress to try again.

Today we apply these principles to 18 U. S. C. §924(c).

That statute threatens long prison sentences for anyone

who uses a firearm in connection with certain other federal

crimes. But which other federal crimes? The statute’s

residual clause points to those felonies “that by [their]

nature, involv[e] a substantial risk that physical force

2 UNITED STATES v. DAVIS

Opinion of the Court

against the person or property of another may be used in

the course of committing the offense.” §924(c)(3)(B). Even

the government admits that this language, read in the

way nearly everyone (including the government) has long

understood it, provides no reliable way to determine which

offenses qualify as crimes of violence and thus is unconsti-

tutionally vague. So today the government attempts a

new and alternative reading designed to save the residual

clause. But this reading, it turns out, cannot be squared

with the statute’s text, context, and history. Were we to

adopt it, we would be effectively stepping outside our role

as judges and writing a new law rather than applying the

one Congress adopted.

I

After Maurice Davis and Andre Glover committed a

string of gas station robberies in Texas, a federal prosecu-

tor charged both men with multiple counts of robbery

affecting interstate commerce in violation of the Hobbs

Act, 18 U. S. C. §1951(a), and one count of conspiracy to

commit Hobbs Act robbery. The prosecutor also charged

Mr. Davis with being a felon in possession of a firearm. In

the end, a jury acquitted Mr. Davis of one robbery charge

and otherwise found the men guilty on all counts. And

these convictions, none of which are challenged here,

authorized the court to impose prison sentences of up to 70

years for Mr. Davis and up to 100 years for Mr. Glover.

But that was not all. This appeal concerns additional

charges the government pursued against the men under

§924(c). That statute authorizes heightened criminal

penalties for using or carrying a firearm “during and in

relation to,” or possessing a firearm “in furtherance of,”

any federal “crime of violence or drug trafficking crime.”

§924(c)(1)(A). The statute proceeds to define the term

“crime of violence” in two subparts—the first known as the

elements clause, and the second the residual clause.

Cite as: 588 U. S. ____ (2019) 3

Opinion of the Court

According to §924(c)(3), a crime of violence is “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 an-

other may be used in the course of committing the

offense.”

Violators of §924(c) face a mandatory minimum sentence

of five years in prison, over and above any sentence they

receive for the underlying crime of violence or drug traf-

ficking crime. The minimum sentence rises to 7 years if

the defendant brandishes the firearm and 10 years if he

discharges it. Certain types of weapons also trigger en-

hanced penalties—for example, a defendant who uses a

short-barreled shotgun faces a minimum sentence of 10

years. And repeat violations of §924(c) carry a minimum

sentence of 25 years.1

At trial, the government argued that Mr. Davis and Mr.

Glover had each committed two separate §924(c) violations

by brandishing a short-barreled shotgun in connection

with their crimes. Here, too, the jury agreed. These con-

victions yielded a mandatory minimum sentence for each

man of 35 years, which had to run consecutively to their

other sentences. Adding the §924(c) mandatory mini-

mums to its discretionary sentences for their other crimes,

the district court ultimately sentenced Mr. Glover to more

——————

1 When this case was tried, a defendant convicted of two §924(c) viola-

tions in a single prosecution faced a 25-year minimum for the second

violation. See Deal v. United States, 508 U. S. 129, 132 (1993); §1(a)(1),

112 Stat. 3469. In 2018, Congress changed the law so that, going

forward, only a second §924(c) violation committed “after a prior

[§924(c)] conviction . . . has become final” will trigger the 25-year

minimum. Pub. L. 115–391, §403(a), 132 Stat. 5221.

4 UNITED STATES v. DAVIS

Opinion of the Court

than 41 years in prison and Mr. Davis to more than 50

years.

On appeal, both defendants argued that §924(c)’s resid-

ual clause is unconstitutionally vague. At first, the Fifth

Circuit rejected the argument. United States v. Davis, 677

Fed. Appx. 933, 936 (2017) (per curiam). But after we

vacated its judgment and remanded for further considera-

tion in light of our decision in Sessions v. Dimaya, 584

U. S. ___ (2018), striking down a different, almost identi-

cally worded statute, the court reversed course and held

§924(c)(3)(B) unconstitutional. 903 F. 3d 483, 486 (2018)

(per curiam). It then held that Mr. Davis’s and Mr. Glov-

er’s convictions on one of the two §924(c) counts, the one

that charged robbery as a predicate crime of violence,

could be sustained under the elements clause. But it held

that the other count, which charged conspiracy as a predi-

cate crime of violence, depended on the residual clause;

and so it vacated the men’s convictions and sentences on

that count.

Because the Fifth Circuit’s ruling deepened a dispute

among the lower courts about the constitutionality of

§924(c)’s residual clause, we granted certiorari to resolve

the question. 586 U. S. ___ (2018).2

II

Our doctrine prohibiting the enforcement of vague laws

rests on the twin constitutional pillars of due process and

separation of powers. See Dimaya, 584 U. S., at ___–___

(plurality opinion) (slip op., at 4–5); id., at ___–___

——————

2 Compare United States v. Simms, 914 F. 3d 229, 236–246 (CA4

2019) (en banc), United States v. Salas, 889 F. 3d 681, 685–686 (CA10

2018), and United States v. Eshetu, 898 F. 3d 36, 37–38 (CADC 2018)

(holding that §924(c)(3)(B) is vague), with United States v. Douglas, 907

F. 3d 1, 11–16 (CA1 2018), Ovalles v. United States, 905 F. 3d 1231,

1240–1252 (CA11 2018) (en banc), and United States v. Barrett, 903

F. 3d 166, 178–184 (CA2 2018) (taking the opposite view).

Cite as: 588 U. S. ____ (2019) 5

Opinion of the Court

(GORSUCH, J., concurring in part and concurring in judg-

ment) (slip op., at 2–9). Vague laws contravene the “first

essential of due process of law” that statutes must give

people “of common intelligence” fair notice of what the law

demands of them. Connally v. General Constr. Co., 269

U. S. 385, 391 (1926); see Collins v. Kentucky, 234 U. S.

634, 638 (1914). Vague laws also undermine the Constitu-

tion’s separation of powers and the democratic self-

governance it aims to protect. Only the people’s elected

representatives in the legislature are authorized to “make

an act a crime.” United States v. Hudson, 7 Cranch 32, 34

(1812). Vague statutes threaten to hand responsibility for

defining crimes to relatively unaccountable police, prose-

cutors, and judges, eroding the people’s ability to oversee

the creation of the laws they are expected to abide. See

Kolender v. Lawson, 461 U. S. 352, 357–358, and n. 7

(1983); United States v. L. Cohen Grocery Co., 255 U. S.

81, 89–91 (1921); United States v. Reese, 92 U. S. 214, 221

(1876).

In recent years, this Court has applied these principles

to two statutes that bear more than a passing resemblance

to §924(c)(3)(B)’s residual clause. In Johnson v. United

States, 576 U. S. ___ (2015), the Court addressed the

residual clause of the Armed Career Criminal Act (ACCA),

which defined a “violent felony” to include offenses that

presented a “serious potential risk of physical injury to

another.” §924(e)(2)(B)(ii). The ACCA’s residual clause

required judges to use a form of what we’ve called the

“categorical approach” to determine whether an offense

qualified as a violent felony. Following the categorical

approach, judges had to disregard how the defendant

actually committed his crime. Instead, they were required

to imagine the idealized “ ‘ordinary case’ ” of the defend-

ant’s crime and then guess whether a “ ‘serious potential

risk of physical injury to another’ ” would attend its com-

mission. Id., at ___ (slip op., at 4). Johnson held this

6 UNITED STATES v. DAVIS

Opinion of the Court

judicial inquiry produced “more unpredictability and

arbitrariness” when it comes to specifying unlawful con-

duct than the Constitution allows. Id., at ___–___ (slip op.,

at 5–6).

Next, in Sessions v. Dimaya, we considered the residual

clause of 18 U. S. C. §16, which defines a “crime of vio-

lence” for purposes of many federal statutes. Like

§924(c)(3), §16 contains an elements clause and a residual

clause. The only difference is that §16’s elements clause,

unlike §924(c)(3)’s elements clause, isn’t limited to felo-

nies; but there’s no material difference in the language or

scope of the statutes’ residual clauses.3 As with the

ACCA, our precedent under §16’s residual clause required

courts to use the categorical approach to determine

whether an offense qualified as a crime of violence. Di-

maya, 584 U. S., at ___–___ (slip op., at 2–3); see Leocal v.

Ashcroft, 543 U. S. 1, 7, 10 (2004). And, again as with the

ACCA, we held that §16’s residual clause was unconstitu-

tionally vague because it required courts “to picture the

kind of conduct that the crime involves in the ordinary

case, and to judge whether that abstraction presents some

not-well-specified-yet-sufficiently-large degree of risk.”

Dimaya, 584 U. S., at ___ (slip op., at 11) (internal quota-

tion marks omitted).

What do Johnson and Dimaya have to say about the

statute before us? Those decisions teach that the imposi-

tion of criminal punishment can’t be made to depend on a

judge’s estimation of the degree of risk posed by a crime’s

imagined “ordinary case.” But does §924(c)(3)(B) require

that sort of inquiry? The government and lower courts

——————

3 Section 16 provides that the term “crime of violence” means “(a) an

offense that has as an element the use, attempted use, or threatened

use of physical force against the person or property of another, or

(b) any other offense that is a felony and 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.”

Cite as: 588 U. S. ____ (2019) 7

Opinion of the Court

have long thought so. For years, almost everyone under-

stood §924(c)(3)(B) to require exactly the same categorical

approach that this Court found problematic in the residual

clauses of the ACCA and §16.4 Today, the government

acknowledges that, if this understanding is correct, then

§924(c)(3)(B) must be held unconstitutional too.

But the government thinks it has now found a way

around the problem. In the aftermath of our decisions

holding the residual clauses of the ACCA and §16(b) un-

constitutionally vague, the government “abandon[ed] its

longstanding position” that §924(c)(3)(B) requires a cate-

gorical analysis and began urging lower courts to “adopt a

new ‘case specific’ method” that would look to “the ‘de-

fendant’s actual conduct’ in the predicate offense.” 903

F. 3d, at 485. Now, the government tries the same strat-

egy in this Court, asking us to abandon the traditional

categorical approach and hold that the statute actually

commands the government’s new case-specific approach.

So, while the consequences in this case may be of constitu-

tional dimension, the real question before us turns out to

be one of pure statutory interpretation.

In approaching the parties’ dispute over the statute’s

meaning, we begin by acknowledging that the government

——————

4 See, e.g., United States v. Acosta, 470 F. 3d 132, 134–135 (CA2

2006); United States v. Butler, 496 Fed. Appx. 158, 161 (CA3 2012);

United States v. Fuertes, 805 F. 3d 485, 498 (CA4 2015); United States

v. Williams, 343 F. 3d 423, 431 (CA5 2003); Evans v. Zych, 644 F. 3d

447, 453 (CA6 2011); United States v. Jackson, 865 F. 3d 946, 952 (CA7

2017), vacated and remanded, 584 U. S. ___ (2018); United States v.

Moore, 38 F. 3d 977, 979–980 (CA8 1994); United States v. Amparo, 68

F. 3d 1222, 1225–1226 (CA9 1995); United States v. Munro, 394 F. 3d

865, 870 (CA10 2005); United States v. McGuire, 706 F. 3d 1333, 1336–

1337 (CA11 2013); United States v. Kennedy, 133 F. 3d 53, 56 (CADC

1998); see also Ovalles v. United States, 905 F. 3d 1231, 1295 (CA11

2018) (en banc) (J. Pryor, J., dissenting) (“For years, and even after

Johnson, the government consistently has urged that we apply a

categorical approach to §924(c)”).

8 UNITED STATES v. DAVIS

Opinion of the Court

is right about at least two things. First, a case-specific

approach would avoid the vagueness problems that

doomed the statutes in Johnson and Dimaya. In those

cases, we recognized that there would be no vagueness

problem with asking a jury to decide whether a defend-

ant’s “ ‘real-world conduct’ ” created a substantial risk of

physical violence. Dimaya, 584 U. S., at ___–___ (slip op.,

at 10–11); see Johnson, 576 U. S., at ___, ___ (slip op., at 6,

12). Second, a case-specific approach wouldn’t yield the

same practical and Sixth Amendment complications under

§924(c) that it would have under the ACCA or §16. Those

other statutes, in at least some of their applications, re-

quired a judge to determine whether a defendant’s prior

conviction was for a “crime of violence” or “violent felony.”

In that context, a case-specific approach would have en-

tailed “reconstruct[ing], long after the original conviction,

the conduct underlying that conviction.” Id., at ___ (slip

op., at 13). And having a judge, not a jury, make findings

about that underlying conduct would have “raise[d] seri-

ous Sixth Amendment concerns.” Descamps v. United

States, 570 U. S. 254, 269–270 (2013). By contrast, a

§924(c) prosecution focuses on the conduct with which the

defendant is currently charged. The government already

has to prove to a jury that the defendant committed all the

acts necessary to punish him for the underlying crime of

violence or drug trafficking crime. So it wouldn’t be that

difficult to ask the jury to make an additional finding

about whether the defendant’s conduct also created a

substantial risk that force would be used.

But all this just tells us that it might have been a good

idea for Congress to have written a residual clause for

§924(c) using a case-specific approach. It doesn’t tell us

whether Congress actually wrote such a clause. To an-

swer that question, we need to examine the statute’s text,

context, and history. And when we do that, it becomes

clear that the statute simply cannot support the govern-

Cite as: 588 U. S. ____ (2019) 9

Opinion of the Court

ment’s newly minted case-specific theory.

III

A

Right out of the gate, the government faces a challenge.

This Court, in a unanimous opinion, has already read the

nearly identical language of 18 U. S. C. §16(b) to mandate

a categorical approach. And, importantly, the Court did so

without so much as mentioning the practical and constitu-

tional concerns described above. Instead, the Court got

there based entirely on the text. In Leocal, the Court

wrote:

“In determining whether petitioner’s conviction falls

within the ambit of §16, the statute directs our focus

to the ‘offense’ of conviction. See §16(a) (defining a

crime of violence as ‘an offense that has as an element

the use . . . of physical force against the person or

property of another’ (emphasis added)); §16(b) (defin-

ing the term as ‘any other offense that is a felony and

that, by its nature, involves a substantial risk that

physical force against the person or property of an-

other may be used in the course of committing the

offense’ (emphasis added)). This language requires us

to look to the elements and the nature of the offense of

conviction, rather than to the particular facts relating

to petitioner’s crime.” 543 U. S., at 7.

Leocal went on to suggest that burglary would always be a

crime of violence under §16(b) “because burglary, by its

nature, involves a substantial risk that the burglar will

use force against a victim in completing the crime,” re-

gardless of how any particular burglar might act on a

specific occasion. Id., at 10 (emphasis added); see also

Dimaya, 584 U. S., at ___ (slip op., at 14) (plurality opin-

ion) (reaffirming that “§16(b)’s text . . . demands a categor-

ical approach”). And what was true of §16(b) seems to us

10 UNITED STATES v. DAVIS

Opinion of the Court

at least as true of §924(c)(3)(B): It’s not even close; the

statutory text commands the categorical approach.

Consider the word “offense.” It’s true that “in ordinary

speech,” this word can carry at least two possible mean-

ings. It can refer to “a generic crime, say, the crime of

fraud or theft in general,” or it can refer to “the specific

acts in which an offender engaged on a specific occasion.”

Nijhawan v. Holder, 557 U. S. 29, 33–34 (2009). But the

word “offense” appears just once in §924(c)(3), in the stat-

ute’s prefatory language. And everyone agrees that, in

connection with the elements clause, the term “offense”

carries the first, “generic” meaning. Cf. id., at 36 (similar

language of the ACCA’s elements clause “refers directly to

generic crimes”). So reading this statute most naturally,

we would expect “offense” to retain that same meaning in

connection with the residual clause. After all, “[i]n all but

the most unusual situations, a single use of a statutory

phrase must have a fixed meaning.” Cochise Consultancy,

Inc. v. United States ex rel. Hunt, 587 U. S. ___, ___ (2019)

(slip op., at 5).

To prevail, the government admits it must persuade us

that the singular term “offense” bears a split personality

in §924(c), carrying the “generic” meaning in connection

with the elements clause but then taking on the “specific

act” meaning in connection with the residual clause. And,

the government suggests, this isn’t quite as implausible as

it may sound; sometimes the term “offense” can carry both

meanings simultaneously. To illustrate its point, the

government posits a statute defining a “youthful gun

crime” as “an offense that has as an element the use of a

gun and is committed by someone under the age of 21.”

Tr. of Oral Arg. 16. This statute, the government sug-

gests, would leave us little choice but to understand the

single word “offense” as encompassing both the generic

crime and the manner of its commission on a specific

occasion. To which we say: Fair enough. It’s possible for

Cite as: 588 U. S. ____ (2019) 11

Opinion of the Court

surrounding text to make clear that “offense” carries a

double meaning. But absent evidence to the contrary, we

presume the term is being used consistently. And nothing

in §924(c)(3)(B) comes close to rebutting that presumption.

Just the opposite. The language of the residual clause

itself reinforces the conclusion that the term “offense”

carries the same “generic” meaning throughout the stat-

ute. Section 924(c)(3)(B), just like §16(b), speaks of an

offense that, “by its nature,” involves a certain type of risk.

And that would be an exceedingly strange way of referring

to the circumstances of a specific offender’s conduct. As

both sides agree, the “nature” of a thing typically denotes

its “ ‘normal and characteristic quality,’ ” Dimaya, 584

U. S., at ___ (slip op., at 14) (quoting Webster’s Third New

International Dictionary 1507 (2002)), or its “ ‘basic or

inherent features,’ ” United States v. Barrett, 903 F. 3d

166, 182 (CA2 2018) (quoting Oxford Dictionary of English

1183 (A. Stevenson ed., 3d ed. 2010)). So in plain English,

when we speak of the nature of an offense, we’re talking

about “what an offense normally—or, as we have repeat-

edly said, ‘ordinarily’—entails, not what happened to occur

on one occasion.” Dimaya, 584 U. S., at ___ (slip op., at

14); see Leocal, 543 U. S., at 7 (contrasting the “nature of

the offense” with “the particular facts [of] petitioner’s

crime”).5

Once again, the government asks us to overlook this

obvious reading of the text in favor of a strained one. It

suggests that the statute might be referring to the “na-

——————

5 The government’s own regulations reflect this understanding of the

ordinary meaning of “by its nature.” A Department of Justice regula-

tion provides that an inmate is not eligible for early release if he was

convicted of an offense “that, by its nature or conduct, presents a

serious potential risk of physical force.” 28 CFR §550.55(b)(5)(iii)

(2017) (emphasis added); see Bush v. Pitzer, 133 F. 3d 455, 458 (CA7

1997) (denying early release because “[c]onspiracy does not by its

‘nature’ present a serious risk; but Bush’s ‘conduct’ did so”).

12 UNITED STATES v. DAVIS

Opinion of the Court

ture” of the defendant’s conduct on a particular occasion.

But while this reading may be linguistically feasible, we

struggle to see why, if it had intended this meaning, Con-

gress would have used the phrase “by its nature” at all.

The government suggests that “by its nature” keeps the

focus on the offender’s conduct and excludes evidence

about his personality, such as whether he has violent

tendencies. But even without the words “by its nature,”

nothing in the statute remotely suggests that courts are

allowed to consider character evidence—a type of evidence

usually off-limits during the guilt phase of a criminal trial.

Cf. Fed. Rule Evid. 404.

B

Things become clearer yet when we consider

§924(c)(3)(B)’s role in the broader context of the federal

criminal code. As we’ve explained, the language of

§924(c)(3)(B) is almost identical to the language of §16(b),

which this Court has read to mandate a categorical ap-

proach. And we normally presume that the same lan-

guage in related statutes carries a consistent meaning.

See, e.g., Sullivan v. Stroop, 496 U. S. 478, 484 (1990).

This case perfectly illustrates why we do that. There

are dozens of federal statutes that use the phrase “crime of

violence” to refer to presently charged conduct rather than

a past conviction. Some of those statutes cross-reference

the definition of “crime of violence” in §924(c)(3), while

others are governed by the virtually identical definition in

§16. The choice appears completely random. Reading the

similar language in §924(c)(3)(B) and §16(b) similarly

yields sensibly congruent applications across all these

other statutes. But if we accepted the government’s invi-

tation to reinterpret §924(c)(3)(B) as alone endorsing a

case-specific approach, we would produce a series of seem-

ingly inexplicable results.

Take just a few examples. If the government were right,

Cite as: 588 U. S. ____ (2019) 13

Opinion of the Court

Congress would have mandated the case-specific approach

in a prosecution for providing explosives to facilitate a

crime of violence, 18 U. S. C. §844(o), but the (now-

invalidated) categorical approach in a prosecution for

providing information about explosives to facilitate a

crime of violence, §842(p)(2). It would have mandated the

case-specific approach in a prosecution for using false

identification documents in connection with a crime of

violence, §1028(b)(3)(B), but the categorical approach in a

prosecution for using confidential phone records in connec-

tion with a crime of violence, §1039(e)(1). It would have

mandated the case-specific approach in a prosecution for

giving someone a firearm to use in a crime of violence,

§924(h), but the categorical approach in a prosecution for

giving a minor a handgun to use in a crime of violence,

§924(a)(6)(B)(ii). It would have mandated the case-specific

approach in a prosecution for traveling to another State to

acquire a firearm for use in a crime of violence, §924(g),

but the categorical approach in a prosecution for traveling

to another State to commit a crime of violence, §1952(a)(2).

And it would have mandated the case-specific approach in

a prosecution for carrying armor-piercing ammunition in

connection with a crime of violence, §924(c)(5), but the

categorical approach in a prosecution for carrying a fire-

arm while “in possession of armor piercing ammunition

capable of being fired in that firearm” in connection with a

crime of violence, §929(a)(1).

There would be no rhyme or reason to any of this. Nor

does the government offer any plausible account why

Congress would have wanted courts to take such dramati-

cally different approaches to classifying offenses as crimes

of violence in these various provisions. To hold, as the

government urges, that §16(b) requires the categorical

approach while §924(c)(3)(B) requires the case-specific

approach would make a hash of the federal criminal code.

14 UNITED STATES v. DAVIS

Opinion of the Court

C

Section 924(c)(3)(B)’s history provides still further evi-

dence that it carries the same categorical-approach com-

mand as §16(b). It’s no accident that the language of the

two laws is almost exactly the same. The statutory term

“crime of violence” traces its origins to the Comprehensive

Crime Control Act of 1984. There, Congress enacted the

definition of “crime of violence” in §16. §1001(a), 98 Stat.

2136. It also “employed the term ‘crime of violence’ in

numerous places in the Act,” Leocal, 543 U. S., at 6, in-

cluding in §924(c). §1005(a), 98 Stat. 2138. At that time,

Congress didn’t provide a separate definition of “crime of

violence” in §924(c) but relied on §16’s general definition.

The two statutes, thus, were originally designed to be read

together.

Admittedly, things changed a bit over time. Eventually,

Congress expanded §924(c)’s predicate offenses to include

drug trafficking crimes as well as crimes of violence.

§§104(a)(2)(B)–(C), 100 Stat. 457. When it did so, Con-

gress added a subsection-specific definition of “drug traf-

ficking crime” in §924(c)(2)—and, perhaps thinking that

both terms should be defined in the same place, it also

added a subsection-specific definition of “crime of violence”

in §924(c)(3). §104(a)(2)(F), id., at 457. But even then,

Congress didn’t write a new definition of that term. In-

stead, it copied and pasted the definition from §16 without

making any material changes to the language of the re-

sidual clause. The government suggests that, in doing so,

Congress “intentionally separated” and “decoupled” the

two definitions. Brief for United States 34, 37. But im-

porting the residual clause from §16 into §924(c)(3) almost

word for word would have been a bizarre way of suggest-

ing that the two clauses should bear drastically different

meanings. Usually when statutory language “ ‘is obviously

transplanted from . . . other legislation,’ ” we have reason

to think “ ‘it brings the old soil with it.’ ” Sekhar v. United

Cite as: 588 U. S. ____ (2019) 15

Opinion of the Court

States, 570 U. S. 729, 733 (2013).

What’s more, when Congress copied §16(b)’s language

into §924(c) in 1986, it proceeded on the premise that the

language required a categorical approach. By then courts

had, as the government puts it, “beg[u]n to settle” on the

view that §16(b) demanded a categorical analysis. Brief

for United States 36–37. Of particular significance, the

Second Circuit, along with a number of district courts, had

relied on the categorical approach to hold that selling

drugs could never qualify as a crime of violence because

“[w]hile the traffic in drugs is often accompanied by vio-

lence,” it can also be carried out through consensual sales

and thus “does not by its nature involve substantial risk

that physical violence will be used.” United States v. Diaz,

778 F. 2d 86, 88 (1985). Congress moved quickly to abro-

gate those decisions. But, notably, it didn’t do so by direct-

ing a case-specific approach or changing the language

courts had read to require the categorical approach. In-

stead, it accepted the categorical approach as given and

simply declared that certain drug trafficking crimes auto-

matically trigger §924 penalties, regardless of the risk of

violence that attends them. §§104(a)(2)(B)–(C), 100 Stat.

457.

The government’s reply to this development misses the

mark. The government argues that §16(b) had not ac-

quired such a well-settled judicial construction by 1986

that the reenactment of its language in §924(c)(3)(B)

should be presumed to have incorporated the same con-

struction. We agree. See Jerman v. Carlisle, McNellie,

Rini, Kramer & Ulrich, L. P. A., 559 U. S. 573, 590 (2010)

(interpretations of three courts of appeals “may not have

‘settled’ the meaning” of a statute for purposes of the

reenactment canon). But Congress in 1986 did more than

just reenact language that a handful of courts had inter-

preted to require the categorical approach. It amended

§924(c) specifically to abrogate the results of those deci-

16 UNITED STATES v. DAVIS

Opinion of the Court

sions, without making any attempt to overturn the cate-

gorical reading on which they were based. And that would

have been an odd way of proceeding if Congress had

thought the categorical reading erroneous.

There’s yet one further and distinct way in which

§924(c)’s history undermines the government’s case-

specific reading of the residual clause. As originally en-

acted in 1968, §924(c) prohibited the use of a firearm in

connection with any federal felony. §102, 82 Stat. 1224.

The 1984 amendments narrowed §924(c) by limiting its

predicate offenses to “crimes of violence.” But the case-

specific reading would go a long way toward nullifying

that limitation and restoring the statute’s original

breadth. After all, how many felonies don’t involve a

substantial risk of physical force when they’re committed

using a firearm—let alone when the defendant brandishes

or discharges the firearm?

Recognizing this difficulty, the government assures us

that a jury wouldn’t be allowed to find a felony to be a

crime of violence solely because the defendant used a

firearm, although it could consider the firearm as a “fac-

tor.” Tr. of Oral Arg. 8. But the government identifies no

textual basis for this rule, and exactly how it would work

in practice is anyone’s guess. The government says, for

example, that “selling counterfeit handbags” while carry-

ing a gun wouldn’t be a crime of violence under its ap-

proach. Id., at 9. But why not? Because the counterfeit-

handbag trade is so inherently peaceful that there’s no

substantial risk of a violent confrontation with dissatisfied

customers, territorial competitors, or dogged police offic-

ers? And how are jurors supposed to determine that? The

defendant presumably knew the risks of his trade, and he

chose to arm himself. See United States v. Simms, 914

F. 3d 229, 247–248 (CA4 2019) (en banc) (refusing to

“condem[n] jurors to such an ill-defined inquiry”). Even

granting the government its handbag example, we suspect

Cite as: 588 U. S. ____ (2019) 17

Opinion of the Court

its approach would result in the vast majority of federal

felonies becoming potential predicates for §924(c) charges,

contrary to the limitation Congress deliberately imposed

when it restricted the statute’s application to crimes of

violence.

D

With all this statutory evidence now arrayed against it,

the government answers that it should prevail anyway

because of the canon of constitutional avoidance. Maybe

the case-specific approach doesn’t represent the best read-

ing of the statute—but, the government insists, it is our

duty to adopt any “ ‘fairly possible’ ” reading of a statute to

save it from being held unconstitutional. Brief for United

States 45.6

We doubt, however, the canon could play a proper role

in this case even if the government’s reading were “possi-

ble.” True, when presented with two “fair alternatives,”

this Court has sometimes adopted the narrower construc-

tion of a criminal statute to avoid having to hold it uncon-

stitutional if it were construed more broadly. United

States v. Rumely, 345 U. S. 41, 45, 47 (1953); see, e.g.,

Skilling v. United States, 561 U. S. 358, 405–406, and

n. 40 (2010); United States v. Lanier, 520 U. S. 259, 265–

267, and n. 6 (1997). But no one before us has identified a

case in which this Court has invoked the canon to expand

the reach of a criminal statute in order to save it. Yet that

——————

6 There are at least two different canons of construction that some-

times go by the name “constitutional avoidance.” The one the govern-

ment invokes here is perhaps better termed the presumption of consti-

tutionality. Of long lineage, it holds that courts should, if possible,

interpret ambiguous statutes to avoid rendering them unconstitutional,

see, e.g., Parsons v. Bedford, 3 Pet. 433, 448–449 (1830) (Story, J.), and

it is distinct from the more modern (and more debated) constitutional

doubt canon, which suggests courts should construe ambiguous statutes

to avoid the need even to address serious questions about their consti-

tutionality, see Rust v. Sullivan, 500 U. S. 173, 190–191 (1991).

18 UNITED STATES v. DAVIS

Opinion of the Court

is exactly what the government seeks here. Its case-

specific reading would cause §924(c)(3)(B)’s penalties to

apply to conduct they have not previously been understood

to reach: categorically nonviolent felonies committed in

violent ways. See Simms, 914 F. 3d, at 256–257 (Wynn,

J., concurring).7

Employing the avoidance canon to expand a criminal

statute’s scope would risk offending the very same due

process and separation-of-powers principles on which the

vagueness doctrine itself rests. See supra, at 4–5. Every-

one agrees that Mr. Davis and Mr. Glover did many things

that Congress had declared to be crimes; and no matter

how we rule today, they will face substantial prison sen-

tences for those offenses. But does §924(c)(3)(B) require

them to suffer additional punishment, on top of everything

else? Even if you think it’s possible to read the statute to

impose such additional punishment, it’s impossible to say

that Congress surely intended that result, or that the law

gave Mr. Davis and Mr. Glover fair warning that §924(c)’s

mandatory penalties would apply to their conduct. Re-

spect for due process and the separation of powers sug-

gests a court may not, in order to save Congress the trou-

——————

7 The government claims to have found cases invoking the canon to

expand a statute’s reach, but none actually stands for that proposition.

Each simply remarks in passing that a construction the Court arrived

at for other reasons had the additional benefit of avoiding vagueness

concerns; none suggests that a narrower construction was available.

See United States v. Grace, 461 U. S. 171, 176 (1983) (accepting gov-

ernment’s construction, which was “not contested by appellees”); United

States v. Culbert, 435 U. S. 371, 379 (1978) (finding statute clear and

refusing to “manufacture ambiguity where none exists”); United States

v. Shreveport Grain & Elevator Co., 287 U. S. 77, 82–83 (1932) (finding

statute unambiguous and construing it according to “the natural import

of its terms”). And the dissent, despite compiling a page-long list of

constitutional avoidance cases spanning “more than 200 years,” post, at

25–26, has been unable to find any better examples. See post, at 29–30

(opinion of KAVANAUGH, J.).

Cite as: 588 U. S. ____ (2019) 19

Opinion of the Court

ble of having to write a new law, construe a criminal

statute to penalize conduct it does not clearly proscribe.

Employing the canon as the government wishes would

also sit uneasily with the rule of lenity’s teaching that

ambiguities about the breadth of a criminal statute should

be resolved in the defendant’s favor. That rule is “perhaps

not much less old than” the task of statutory “construction

itself.” United States v. Wiltberger, 5 Wheat. 76, 95 (1820)

(Marshall, C. J.). And much like the vagueness doctrine,

it is founded on “the tenderness of the law for the rights of

individuals” to fair notice of the law “and on the plain

principle that the power of punishment is vested in the

legislative, not in the judicial department.” Ibid.; see

Lanier, 520 U. S., at 265–266, and n. 5. Applying consti-

tutional avoidance to narrow a criminal statute, as this

Court has historically done, accords with the rule of lenity.

By contrast, using the avoidance canon instead to adopt a

more expansive reading of a criminal statute would place

these traditionally sympathetic doctrines at war with one

another.8

IV

What does the dissent have to say about all this? It

starts by emphasizing that §924(c)(3)(B) has been used in

“tens of thousands of federal prosecutions” since its en-

actment 33 years ago. Post, at 2 (opinion of KAVANAUGH,

J.). And the dissent finds it “surprising” and “extraordi-

nary” that, after all those prosecutions over all that time,

——————

8 Admittedly, abandoning the categorical approach in favor of the

case-specific approach would also have the effect of excluding from the

statute’s coverage defendants who commit categorically violent felonies

in nonviolent ways, and in that respect would be more “lenient” for

some defendants. Regardless, the constitutional principles underlying

the rule of lenity counsel caution before invoking constitutional avoid-

ance to construe the statute to punish conduct that it does not unam-

biguously proscribe.

20 UNITED STATES v. DAVIS

Opinion of the Court

the statute could “suddenly” be deemed unconstitutional.

Post, at 2–3. But the government concedes that

§924(c)(3)(B) is unconstitutional if it means what everyone

has understood it to mean in nearly all of those prosecu-

tions over all those years. So the only way the statute can

be saved is if we were “suddenly” to give it a new meaning

different from the one it has borne for the last three dec-

ades. And if we could do that, it would indeed be “surpris-

ing” and “extraordinary.”

The dissent defends giving this old law a new meaning

by appealing to intuition. It suggests that a categorical

reading of §924(c)(3)(B) is “unnatural” because “[i]f you

were to ask John Q. Public whether a particular crime

posed a substantial risk of violence, surely he would re-

spond, ‘Well, tell me how it went down—what happened?’ ”

Post, at 13 (some internal quotation marks omitted).

Maybe so. But the language in the statute before us isn’t

the language posited in the dissent’s push poll. Section

924(c)(3)(B) doesn’t ask about the risk that “a particular

crime posed” but about the risk that an “offense . . . by its

nature, involves.” And a categorical reading of this cate-

gorical language seemed anything but “unnatural” to the

unanimous Court in Leocal or the plurality in Dimaya.9

Nor did the government think the categorical reading of

§924(c)(3)(B) “unnatural” when it embraced that reading

for decades. The dissent asks us to overlook the govern-

ment’s prior view, explaining that the government only

defended a categorical reading of the statute “when it did

not matter for constitutional vagueness purposes”—that

is, before Johnson and Dimaya identified constitutional

problems with the categorical approach. Post, at 34. But

——————

9 To be sure, the dissent suggests that Leocal and Dimaya adopted a

categorical reading simply to avoid practical and constitutional prob-

lems. Post, at 15–16, 23, and n. 23. But, as we have seen, this too is

mistaken. Leocal did not even mention those problems, and Dimaya

held that the text demanded a categorical approach. See supra, at 9.

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Opinion of the Court

isn’t that exactly the point? Isn’t it at least a little reveal-

ing that, when the government had no motive to concoct

an alternative reading, even it thought the best reading of

§924(c)(3)(B) demanded a categorical analysis?

If this line of attack won’t work, the dissent tries another

by telling us that we have “not fully account[ed] for the

long tradition of substantial-risk criminal statutes.” Post,

at 34. The dissent proceeds to offer a lengthy bill of par-

ticulars, citing dozens of state and federal laws that do not

use the categorical approach. Post, at 7–10, and nn. 4–17.

But what does this prove? Most of the statutes the dissent

cites impose penalties on whoever “creates,” or “engages in

conduct that creates,” or acts under “circumstances that

create” a substantial risk of harm; others employ similar

language. Not a single one imposes penalties for commit-

ting certain acts during “an offense . . . that by its nature,

involves” a substantial risk, or anything similar. March-

ing through the dissent’s own catalog thus only winds up

confirming that legislatures know how to write risk-based

statutes that require a case-specific analysis—and that

§924(c)(3)(B) is not a statute like that.

When the dissent finally turns to address the words

Congress actually wrote in §924(c)(3)(B), its main argu-

ment seems to be that a categorical reading violates the

canon against superfluity. On this account, reading “of-

fense” generically in connection with the residual clause

makes the residual clause “duplicate” the elements clause

and leaves it with “virtually nothing” to do. Post, at 20.

But that is a surprising assertion coming from the dissent,

which devotes several pages to describing the “many”

offenders who have been convicted under the residual

clause using the categorical approach but who “might not”

be prosecutable under the elements clause. Post, at 30–33.

It is also wrong. As this Court has long understood, the

residual clause, read categorically, “sweeps more broadly”

than the elements clause—potentially reaching offenses,

22 UNITED STATES v. DAVIS

Opinion of the Court

like burglary, that do not have violence as an element but

that arguably create a substantial risk of violence. Leocal,

543 U. S., at 10. So even under the categorical reading,

the residual clause is far from superfluous.

Without its misplaced reliance on the superfluity canon,

there is little left of the dissent’s textual analysis. The

dissent asserts that the phrase “by its nature” must

“focu[s] on the defendant’s actual conduct”—but only

because this “follows” from the dissent’s earlier (and mis-

taken) superfluity argument. Post, at 21. Next, the dis-

sent claims that “the word ‘involves’ ” and “the phrase ‘in

the course of committing the offense’ ” both support a case-

specific approach. Post, at 22. But these words do not

favor either reading: It is just as natural to ask whether

the offense of robbery ordinarily “involves” a substantial

risk that violence will be used “in the course of committing

the offense” as it is to ask whether a particular robbery

“involved” a substantial risk that violence would be used

“in the course of committing the offense.” If anything, the

statute’s use of the present and not the past tense lends

further support to the categorical reading.10 The dissent

thinks it significant, too, that the statute before us “does

not use the term ‘conviction,’ ” post, at 23; but that word is

hardly a prerequisite for the categorical approach, as

Dimaya makes clear. Remarkably, the dissent has noth-

——————

10 The dissent claims that Taylor v. United States, 495 U. S. 575

(1990), and Nijhawan v. Holder, 557 U. S. 29 (2009), pointed to “the

absence of the word ‘involved’ ” as one reason to adopt a categorical

approach. Post, at 22. Not true. Taylor explained that the ACCA’s

elements clause requires a categorical approach in part because it

refers to a crime “that ‘has as an element’—not any crime that, in a

particular case, involves—the use or threat of force.” 495 U. S., at 600.

All the work in that sentence was being done by the phrase “in a

particular case,” not by the word “involves.” And Nijhawan noted that

the Court had construed the ACCA’s residual clause, which refers to

crimes “that ‘involv[e] conduct that presents a serious potential risk of

physical injury,” to require the categorical approach. 557 U. S., at 36.

Cite as: 588 U. S. ____ (2019) 23

Opinion of the Court

ing at all to say about §924(c)(3)’s history or its relation-

ship with other criminal statutes; it just ignores those

arguments. And when it comes to the constitutional

avoidance canon, the dissent does not even try to explain

how using that canon to criminalize conduct that isn’t

criminal under the fairest reading of a statute might be

reconciled with traditional principles of fair notice and

separation of powers. Instead, the dissent seems willing

to consign “ ‘thousands’ ” of defendants to prison for

“years—potentially decades,” not because it is certain or

even likely that Congress ordained those penalties, but

because it is merely “possible” Congress might have done

so. Post, at 30, 33–34. In our republic, a speculative

possibility that a man’s conduct violated the law should

never be enough to justify taking his liberty.

In the end, the dissent is forced to argue that holding

§924(c)(3)(B) unconstitutional would invite “bad” social

policy consequences. Post, at 34. In fact, the dissent’s

legal analysis only comes sandwiched between a lengthy

paean to laws that impose severe punishments for gun

crimes and a rogue’s gallery of offenses that may now be

punished somewhat less severely. See post, at 1–2, 30–34.

The dissent acknowledges that “the consequences cannot

change our understanding of the law.” Post, at 34. But

what’s the point of all this talk of “bad” consequences if

not to suggest that judges should be tempted into reading

the law to satisfy their policy goals? Even taken on their

own terms, too, the dissent’s policy concerns are consider-

ably overblown. While the dissent worries that our ruling

may elicit challenges to past §924(c) convictions, post, at

33, the dissent’s preferred approach—saving §924(c)(3)(B)

by changing its meaning—would also call into question

countless convictions premised on the categorical reading.

And defendants whose §924(c) convictions are overturned

by virtue of today’s ruling will not even necessarily receive

lighter sentences: As this Court has noted, when a defend-

24 UNITED STATES v. DAVIS

Opinion of the Court

ant’s §924(c) conviction is invalidated, courts of appeals

“routinely” vacate the defendant’s entire sentence on all

counts “so that the district court may increase the sen-

tences for any remaining counts” if such an increase is

warranted. Dean v. United States, 581 U. S. ___, ___

(2017) (slip op., at 5).

Of course, too, Congress always remains free to adopt a

case-specific approach to defining crimes of violence for

purposes of §924(c)(3)(B) going forward. As Mr. Davis and

Mr. Glover point out, one easy way of achieving that goal

would be to amend the statute so it covers any felony that,

“based on the facts underlying the offense, involved a

substantial risk” that physical force against the person or

property of another would be used in the course of commit-

ting the offense. Brief for Respondents 46 (quoting H. R.

7113, 115th Cong., 2d Sess. (2018); emphasis deleted); see

also Tr. of Oral Arg. 19 (government’s counsel agreeing

that this language would offer “clearer” support for the

case-specific approach than the current version of the

statute does). The dissent’s catalog of case-specific, risk-

based criminal statutes supplies plenty of other models

Congress could follow. Alternatively still, Congress might

choose to retain the categorical approach but avoid vague-

ness in other ways, such as by defining crimes of violence

to include certain enumerated offenses or offenses that

carry certain minimum penalties. All these options and

more are on the table. But these are options that belong

to Congress to consider; no matter how tempting, this

Court is not in the business of writing new statutes to

right every social wrong it may perceive.

*

We agree with the court of appeals’ conclusion that

§924(c)(3)(B) is unconstitutionally vague. At the same

time, exactly what that holding means for Mr. Davis and

Mr. Glover remains to be determined. After the Fifth

Cite as: 588 U. S. ____ (2019) 25

Opinion of the Court

Circuit vacated their convictions and sentences on one of

the two §924(c) counts at issue, both men sought rehearing

and argued that the court should have vacated their sen-

tences on all counts. In response, the government con-

ceded that, if §924(c)(3)(B) is held to be vague, then the de-

fendants are entitled to a full resentencing, not just the

more limited remedy the court had granted them. The

Fifth Circuit has deferred ruling on the rehearing peti-

tions pending our decision, so we remand the case to allow

the court to address those petitions. The judgment below

is affirmed in part and vacated in part, and the case is

remanded for further proceedings consistent with this

opinion.

It is so ordered.

Cite as: 588 U. S. ____ (2019) 1

KAVANAUGH, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 18–431

_________________

UNITED STATES, PETITIONER v. MAURICE LAMONT

DAVIS AND ANDRE LEVON GLOVER

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[June 24, 2019]

JUSTICE KAVANAUGH, with whom JUSTICE THOMAS and

JUSTICE ALITO join, and with whom THE CHIEF JUSTICE

joins as to all but Part II–C, dissenting.

Crime and firearms form a dangerous mix. From the

1960s through the 1980s, violent gun crime was rampant

in America. The wave of violence destroyed lives and

devastated communities, particularly in America’s cities.

Between 1963 and 1968, annual murders with firearms

rose by a staggering 87 percent, and annual aggravated

assaults with firearms increased by more than 230

percent.

Faced with an onslaught of violent gun crime and its

debilitating effects, the American people demanded action.

In 1968, Congress passed and President Lyndon Johnson

signed the Gun Control Act. That law made it a separate

federal crime to use or carry a firearm during a federal

felony. Despite that and other efforts, violent crime with

firearms continued at extraordinarily dangerous levels. In

1984 and again in 1986, in legislation signed by President

Reagan, Congress reenacted that provision of the 1968

Act, with amendments. The law now prohibits, among

other things, using or carrying a firearm during and in

relation to a federal “crime of violence.” 18 U. S. C.

§924(c)(1)(A). The law mandates substantial prison time

for violators.

2 UNITED STATES v. DAVIS

KAVANAUGH, J., dissenting

Over the last 33 years, tens of thousands of §924(c)

cases have been prosecuted in the federal courts. Mean-

while, violent crime with firearms has decreased signifi-

cantly. Over the last 25 years, the annual rate of murders

with firearms has dropped by about 50 percent, and the

annual rate of nonfatal violent crimes (robberies, aggra-

vated assaults, and sex crimes) with firearms has de-

creased by about 75 percent. Violent crime in general

(committed with or without a firearm) has also declined.

During that same time period, both the annual rate of

overall violent crime and the annual rate of murders have

dropped by almost 50 percent.

Although the level of violent crime in America is still

very high, especially in certain cities, Americans under the

age of 40 probably cannot fully appreciate how much safer

most American cities and towns are now than they were in

the 1960s, 1970s, and 1980s. Many factors have contrib-

uted to the decline of violent crime in America. But one

cannot dismiss the effects of state and federal laws that

impose steep punishments on those who commit violent

crimes with firearms.

Yet today, after 33 years and tens of thousands of federal

prosecutions, the Court suddenly finds a key provision of

§924(c) to be unconstitutional because it is supposedly too

vague. That is a surprising conclusion for the Court to

reach about a federal law that has been applied so often

for so long with so little problem. The Court’s decision

today will make it harder to prosecute violent gun crimes

in the future. The Court’s decision also will likely mean

that thousands of inmates who committed violent gun

crimes will be released far earlier than Congress specified

when enacting §924(c). The inmates who will be released

early are not nonviolent offenders. They are not drug

offenders. They are offenders who committed violent

crimes with firearms, often brutally violent crimes.

A decision to strike down a 33-year-old, often-prosecuted

Cite as: 588 U. S. ____ (2019) 3

KAVANAUGH, J., dissenting

federal criminal law because it is all of a sudden unconsti-

tutionally vague is an extraordinary event in this Court.

The Constitution’s separation of powers authorizes this

Court to declare Acts of Congress unconstitutional. That

is an awesome power. We exercise that power of judicial

review in justiciable cases to, among other things, ensure

that Congress acts within constitutional limits and abides

by the separation of powers. But when we overstep our

role in the name of enforcing limits on Congress, we do not

uphold the separation of powers, we transgress the sepa-

ration of powers.

I fully understand how the Court has arrived at its

conclusion given the Court’s recent precedents in Johnson

v. United States, 576 U. S. ___ (2015), and Sessions v.

Dimaya, 584 U. S. ___ (2018). But this case presents an

entirely different question. Those cases involved statutes

that imposed additional penalties based on prior convic-

tions. This case involves a statute that focuses on the

defendant’s current conduct during the charged crime.

The statute here operates entirely in the present. Under

our precedents, this statute therefore is not unconstitu-

tionally vague. It is a serious mistake, in my respectful

view, to follow Johnson and Dimaya off the constitutional

cliff in this case. I respectfully dissent.1

I

Section 924(c) prohibits using or carrying a firearm

during and in relation to a federal “crime of violence,” or

——————

1 The statistics contained in the introduction are drawn from: Dept. of

Justice, Federal Bureau of Investigation, Uniform Crime Reports 6–7,

8–9 (1963) (rise in violent crime with firearms in the 1960s); id., at 1,

6–7, 9 (1968) (same); Pew Research Center, Gun Homicide Rate Down

49% Since 1993 Peak; Public Unaware 6, n. 5, and 36, 50 (2013) (de-

crease in violent crime with firearms over about the past 25 years); N.

James, Congressional Research Service, Recent Violent Crime Trends

in the United States 25–26 (Rep. No. R45236) (June 20, 2018) (decrease

in violent crime over about the past 25 years).

4 UNITED STATES v. DAVIS

KAVANAUGH, J., dissenting

possessing a firearm in furtherance of a federal “crime of

violence.”2 Section 924(c) is a substantive criminal of-

fense, not a sentence enhancement. The Government

therefore charges a §924(c) offense in the indictment.

Ordinarily, when charged under §924(c), a defendant will

be charged with both an underlying federal crime and

then also a §924(c) offense. For example, Davis was

charged with both conspiracy to commit robbery and a

§924(c) offense. Glover was likewise charged with both

conspiracy to commit robbery and a §924(c) offense.

By any measure, Davis and Glover’s conduct during the

conspiracy was violent. Davis and Glover committed

multiple armed robberies of convenience stores in the

early morning hours. Those armed robberies followed a

pattern: Davis and Glover (or Glover and a co-

conspirator)—usually covering their faces—would arrive

at a convenience store in the early morning hours in a car

with no plates. One of them would point a short-barreled

shotgun at a female employee and order her around.

Sometimes, he would point the short-barreled shotgun in

her face. Sometimes, he would put the short-barreled

——————

2 Section 924(c)(1)(A) provides: “Except to the extent that a greater

minimum sentence is otherwise provided by this subsection or by any

other provision of law, any person who, during and in relation to any

crime of violence or drug trafficking crime (including a crime of violence

or drug trafficking crime that provides for an enhanced punishment if

committed by the use of a deadly or dangerous weapon or device) for

which the person may be prosecuted in a court of the United States,

uses or carries a firearm, or who, in furtherance of any such crime,

possesses a firearm, shall, in addition to the punishment provided for

such crime of violence or drug trafficking crime—(i) be sentenced to a

term of imprisonment of not less than 5 years; (ii) if the firearm is

brandished, be sentenced to a term of imprisonment of not less than 7

years; and (iii) if the firearm is discharged, be sentenced to a term of

imprisonment of not less than 10 years.” Section 924(c)(1)(B) imposes

heightened penalties for certain types of firearms and firearm devices,

and §924(c)(1)(C) imposes heightened penalties for subsequent §924(c)

convictions.

Cite as: 588 U. S. ____ (2019) 5

KAVANAUGH, J., dissenting

shotgun in her side. While one of them was aiming the

short-barreled shotgun at the store employee, another

would take cigarettes and demand money. Davis and

Glover’s crime spree ended with still more dangerous

behavior: a high-speed car chase in wet and dangerous

driving conditions that culminated in a crash.

Section 924(c)(3) lays out the definition of “crime of

violence” for purposes of §924(c). That definition has two

prongs, either of which can bring a defendant within the

scope of §924(c).3

The first prong of §924(c)(3) is the elements prong. That

prong, the Government concedes here, asks whether the

underlying crime categorically fits within §924(c) because

of the elements of the crime. The judge makes that de-

termination. If the answer is yes, then the judge instructs

the jury on the §924(c) offense to simply find whether the

defendant used or carried a firearm during and in relation

to that underlying crime, or possessed a firearm in fur-

therance of that underlying crime.

The Fifth Circuit concluded that Davis and Glover’s

conspiracy offenses did not fit within the elements prong

of §924(c)(3). So the question was whether Davis and

Glover were covered by the second prong.

The second prong of §924(c)(3) is the substantial-risk

prong. That prong covers cases beyond those covered by

the first prong, the elements prong. Congress sensibly

wanted to cover defendants who committed crimes that

are not necessarily violent by definition under the ele-

ments prong, but who committed crimes with firearms in a

——————

3 Section 924(c)(3) provides: “For purposes of this subsection the term

‘crime of violence’ means 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.”

6 UNITED STATES v. DAVIS

KAVANAUGH, J., dissenting

way that created a substantial risk that violent force

would be used. To that end, the substantial-risk prong,

properly read, focuses not on the elements of the underly-

ing crime, but rather on the defendant’s conduct during

that crime. If a defendant used or carried a firearm dur-

ing and in relation to the crime, and the defendant’s con-

duct during the crime created a substantial risk that

physical force may be used, then the defendant may be

guilty of a §924(c) offense. In that instance, the jury

makes the finding: Did the defendant’s conduct during the

underlying crime create a substantial risk that violent

force would be used?

In other words, as relevant here, a defendant can fall

within the scope of §924(c) either (1) because of the ele-

ments of the underlying crime or (2) because of the de-

fendant’s conduct in committing the underlying crime.

Either (1) the judge finds that an element of the underly-

ing crime entails the use of physical force or (2) the jury

finds that the defendant’s actual conduct involved a sub-

stantial risk that physical force may be used. Put another

way, the underlying crime itself may automatically bring

the defendant within the scope of §924(c). Or if the under-

lying crime does not automatically qualify as a crime of

violence, then the defendant’s conduct during the crime

may still bring the defendant within the scope of §924(c).

Sensible enough.

The basic question in this case is whether the substantial-

risk prong of §924(c)(3)’s definition of “crime of violence” is

unconstitutionally vague. It is not.

As this Court has explained multiple times, criminal

laws that apply a risk standard to a defendant’s conduct

are not too vague, but instead are perfectly constitutional.

Writing for the Court in Johnson, for example, Justice

Scalia stated that “we do not doubt the constitutionality of

laws that call for the application of a qualitative standard

such as ‘substantial risk’ to real-world conduct.” 576

Cite as: 588 U. S. ____ (2019) 7

KAVANAUGH, J., dissenting

U. S., at ___ (slip op., at 12). The following year in Welch

v. United States, Justice Kennedy confirmed that Johnson

“cast no doubt on the many laws that ‘require gauging the

riskiness of conduct in which an individual defendant

engages on a particular occasion.’ ” 578 U. S. ___, ___–___

(2016) (slip op., at 3–4) (quoting Johnson, 576 U. S., at ___

(slip op., at 12)). Two years later in Dimaya, JUSTICE

KAGAN wrote for the Court and echoed Justice Scalia and

Justice Kennedy: “In Johnson’s words, ‘we do not doubt’

the constitutionality of applying §16(b)’s ‘substantial risk

[standard] to real-world conduct.’ ” 584 U. S., at ___–___

(slip op., at 10–11) (quoting Johnson, 576 U. S., at ___ (slip

op., at 12)).

That kind of risk-based criminal statute is not only

constitutional, it is very common. As the Court has recog-

nized, “dozens of federal and state criminal laws use terms

like ‘substantial risk,’ ‘grave risk,’ and ‘unreasonable

risk,’ ” and almost all of those statutes “require gauging

the riskiness of conduct in which an individual defendant

engages on a particular occasion.” Johnson, 576 U. S., at

___ (slip op., at 12). Indeed, the Government’s brief in

Johnson collected more than 200 state and federal stat-

utes that imposed criminal penalties for conduct that

created a risk of injury to others. App. to Supp. Brief for

United States in Johnson v. United States, O. T. 2014, No.

13–7120, pp. 1a–99a.

Take a few examples from federal law: It is a federal

crime to create “a substantial risk of harm to human life”

while illegally “manufacturing a controlled substance.” 21

U. S. C. §858 (emphasis added). Under certain circum-

stances, it is a federal crime to create “a substantial risk of

serious bodily injury to any other person by destroying or

damaging any structure, conveyance, or other real or

personal property within the United States or by attempt-

ing or conspiring to” do so. 18 U. S. C. §2332b(a)(1)(B)

(emphasis added). And for purposes of the chapter of the

8 UNITED STATES v. DAVIS

KAVANAUGH, J., dissenting

federal criminal code dealing with sexual abuse crimes,

“serious bodily injury” is defined as “bodily injury that

involves a substantial risk of death, unconsciousness,

extreme physical pain, protracted and obvious disfigure-

ment, or protracted loss or impairment of the function of a

bodily member, organ, or mental faculty.” §2246(4) (em-

phasis added).

The States’ criminal codes are similar. Among the

crimes that the States define by using qualitative risk

standards are resisting arrest,4 kidnaping,5 assault,6

battery,7 criminal recklessness,8 endangerment,9 unlawful

——————

4 See, e.g., Colo. Rev. Stat. §18–8–103(1)(b) (2018) (“substantial risk of

causing bodily injury”); Ind. Code §35–44.1–3–1(b)(1)(B) (2019) (“sub-

stantial risk of bodily injury”); Mo. Rev. Stat. §575.150 (2016) (“sub-

stantial risk of serious physical injury or death”); Neb. Rev. Stat. §28–

904(1)(b) (2016) (“substantial risk of causing physical injury”); Ore.

Rev. Stat. §162.315(2)(c) (2017) (“substantial risk of physical injury”).

5 See, e.g., Alaska Stat. §11.41.300(a)(2)(B) (2018) (“substantial risk of

serious physical injury”); Ohio Rev. Code Ann. §2905.01(B) (Lexis Supp.

2019) (“substantial risk of serious physical harm”).

6 See, e.g., Ala. Code §13A–6–20(a)(3) (2015) (“grave risk of death”);

Del. Code Ann., Tit. 11, §613(a)(3) (2015) (“substantial risk of death”);

D. C. Code §22–404.01(a)(2) (2018 Cum. Supp.) (“grave risk of serious

bodily injury”); Mo. Rev. Stat. §565.056(1)(4) (2016) (“substantial risk of

death or serious physical injury”); Utah Code §76–5–102(1)(b) (2017)

(“substantial risk of bodily injury”).

7 See, e.g., Ind. Code §35–42–2–1.5 (Supp. 2018) (“substantial risk of

death”); Wis. Stat. §940.19(6) (2016) (“substantial risk of great bodily

harm”).

8 See, e.g., Me. Rev. Stat. Ann., Tit. 17–A, §211(1) (2006) (“substantial

risk of serious bodily injury”), §213(1) (same); Okla. Stat., Tit. 21,

§1289.11 (2011) (“unreasonable risk and probability of death or great

bodily harm”); Wis. Stat. Ann. §939.24(1) (2016) (“unreasonable and

substantial risk of death or great bodily harm”).

9 See, e.g., Ariz. Rev. Stat. Ann. §§13–1201(A), (B) (2010) (“substantial

risk of imminent death or physical injury” and “substantial risk of

imminent death”); N. D. Cent. Code Ann. §12.1–17–03 (2012) (“substan-

tial risk of serious bodily injury or death”); Ore. Rev. Stat. §163.195(1)

(2017) (“substantial risk of serious physical injury”); Wash. Rev. Code

§9A.36.050(1) (2018) (“substantial risk of death or serious physical

Cite as: 588 U. S. ____ (2019) 9

KAVANAUGH, J., dissenting

restraint,10 theft,11 hazing,12 abuse,13 neglect,14 arson,15

homicide,16 and weapons offenses.17

——————

injury”).

10 See, e.g., Ark. Code §5–11–103(a) (2013) (“substantial risk of seri-

ous physical injury”); Conn. Gen. Stat. §53a–95(a) (2017) (“substantial

risk of physical injury”); Tex. Penal Code Ann. §20.02(c)(2)(A) (2019)

(“substantial risk of serious bodily injury”).

11 See, e.g., Ind. Code §35–43–4–2(a)(2)(B) (2018) (“substantial risk of

bodily injury”); Minn. Stat. §609.52(3a) (2016) (“reasonably foreseeable

risk of bodily harm”).

12 See, e.g., Ind. Code §35–42–2–2.5(a) (2018) (“substantial risk of

bodily injury”); Miss. Code. Ann. §§97–3–105(1), (3) (2014) (“substantial

risk of physical injury”); Mo. Rev. Stat. §§578.365(1), (5) (2016) (“prob-

able risk of the loss of life or probable bodily or psychological harm” and

“substantial risk to the life of the student or prospective member”);

Ohio Rev. Code Ann. §2903.31(A) (Lexis 2014) (“substantial risk of

causing mental or physical harm”); Ore. Rev. Stat. §§163.197(4)(a)(B),

(C) (2017) (“unreasonable risk of harm”).

13 See, e.g., Iowa Code §709.3(1)(a) (2019) (“substantial risk of death

or serious injury”); N. C. Gen. Stat. Ann. §14–318.2(a) (2017) (“substan-

tial risk of physical injury”); W. Va. Code Ann. §§61–8D–3(c), (d)(1)

(2014) (“substantial risk of death or serious bodily injury” and “sub-

stantial risk of bodily injury”); Wis. Stat. §§948.03(1), (4)(a), (b) (2016)

(“unreasonable risk of harm,” “unreasonable risk of great bodily harm,”

and “unreasonable risk of bodily harm”).

14 See, e.g., Fla. Stat. §825.102(3)(a) (2018) (“substantial risk of

death”), §827.03(1)(e) (same); W. Va. Code Ann. §§61–8D–4(c), (d)(1)

(2014) (“substantial risk of death or serious bodily injury” and “sub-

stantial risk of bodily injury”).

15 See, e.g., Kan. Stat. Ann. §§21–5812(c)(2)(A)(i), (ii) (2018 Cum.

Supp.) (“substantial risk of bodily harm”); R. I. Gen. Laws §11–4–2

(2002) (“substantial risk of serious physical harm”); Wis. Stat.

§§941.11(1), (2) (2016) (“unreasonable risk of death or great bodily

harm”).

16 See, e.g., Ala. Code §13A–6–2(a)(2) (2015) (“grave risk of death”);

Kan. Stat. Ann. §21–5406(a) (2018 Cum. Supp.) (“unreasonable risk of

injury”); N. Y. Penal Law Ann. §125.20(4) (West 2009) (“grave risk of

serious physical injury”), §§125.25(2), (4) (“grave risk of death” and

“grave risk of serious physical injury or death”).

17 See, e.g., Alaska Stat. §11.61.190(a)(2) (2018) (“substantial and

unjustifiable risk of physical injury”); Ark. Code Ann. §5–74–107(b)(1)

(Supp. 2017) (“substantial risk of physical injury”); Ohio Rev. Code

10 UNITED STATES v. DAVIS

KAVANAUGH, J., dissenting

Consider a few specific examples: In Pennsylvania, a

person resists arrest “if, with the intent of preventing a

public servant from effecting a lawful arrest or discharg-

ing any other duty, the person creates a substantial risk of

bodily injury to the public servant or anyone else.” 18 Pa.

Cons. Stat. §5104 (2015) (emphasis added). In Tennessee,

kidnaping is defined as false imprisonment “under cir-

cumstances exposing the other person to substantial risk

of bodily injury.” Tenn. Code Ann. §39–13–303(a) (2018)

(emphasis added). In New York, reckless endangerment

occurs when a person “recklessly engages in conduct which

creates a substantial risk of serious physical injury to

another person.” N. Y. Penal Law Ann. §120.20 (emphasis

added). And in Maryland, neglect of a minor is defined as

“the intentional failure to provide necessary assistance

and resources for the physical needs or mental health of a

minor that creates a substantial risk of harm to the mi-

nor’s physical health or a substantial risk of mental injury

to the minor.” Md. Crim. Law Code Ann. §3–602.1(a)(5)(i)

(2012) (emphasis added).

The above examples demonstrate that substantial-risk

standards like the one in §924(c)(3)(B) are a traditional

and common feature of criminal statutes. As the Eleventh

Circuit succinctly stated, there “is nothing remarkable

about asking jurors to make that sort of risk determina-

tion—and, if necessary, requiring judges to instruct jurors

on the meaning of terms like ‘substantial’ and ‘physical

force.’ ” Ovalles v. United States, 905 F. 3d 1231, 1250,

n. 8 (2018) (en banc). That is “exactly how similar ques-

tions have been resolved for centuries and are resolved

every day in courts throughout the country.” Ibid.

——————

Ann. §2923.162(C)(2) (Lexis 2014) (“substantial risk of physical harm”);

R. I. Gen. Laws §11–47–61 (2002) (“substantial risk of death or serious

injury”); Wash. Rev. Code §9A.36.045(1) (2018) (“substantial risk of

death or serious physical injury”); W. Va. Code Ann. §61–7–12 (2014)

(“substantial risk of death or serious bodily injury”).

Cite as: 588 U. S. ____ (2019) 11

KAVANAUGH, J., dissenting

A statute is unconstitutionally vague only if “it fails to

give ordinary people fair notice of the conduct it punishes,”

or is “so standardless that it invites arbitrary enforce-

ment.” Johnson, 576 U. S., at ___ (slip op., at 3). Section

924(c)(3)(B) is not unconstitutionally vague. To reiterate,

§924(c)(3)(B) defines “crime of violence” as “an offense that

is a felony and . . . that by its nature, involves a substan-

tial 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) affords people of ordinary

intelligence ample notice that they may be punished if

they carry or use a gun while engaging in criminal conduct

that presents a risk that physical force may be used.

There “is a whole range of conduct that anyone with at

least a semblance of common sense would know” is cov-

ered by §924(c)(3)(B). Chicago v. Morales, 527 U. S. 41,

114 (1999) (THOMAS, J., dissenting) (internal quotation

marks omitted). And prosecutors, defense attorneys,

judges, and juries are well equipped to enforce and defend

§924(c)(3)(B) prosecutions in a principled and predictable

way—just as they have for decades with many other

substantial-risk criminal statutes. As Judge Niemeyer

wrote in his separate opinion in the Fourth Circuit, “the

parties in those cases had little difficulty understanding,

enforcing, or defending the §924(c)(1) charges at issue.”

United States v. Simms, 914 F. 3d 229, 264 (2019).18

In short, §924(c)(3)(B) is a garden-variety, substantial-

risk criminal law. Section 924(c)(3)(B) is not unconstitu-

tionally vague.

II

This case therefore should be straightforward. But the

Court complicates things by engaging in a two-step dance

——————

18 Judge Niemeyer’s opinion was joined by Judges Wilkinson, Duncan,

Agee, Keenan, and Quattlebaum.

12 UNITED STATES v. DAVIS

KAVANAUGH, J., dissenting

that ends with the Court concluding that §924(c)(3)(B) is

unconstitutionally vague.

The Court’s first step is to construe §924(c)(3)’s substantial-

risk prong to require an ordinary-case categorical ap-

proach rather than a conduct-specific approach. In other

words, the Court says that a defendant’s guilt or innocence

under §924(c)(3)’s substantial-risk prong hinges on a

judge’s assessment of how a hypothetical defendant would

ordinarily commit the underlying crime. In the Court’s

view, a defendant’s guilt or innocence under §924(c)(3)’s

substantial-risk prong does not depend on a jury’s finding

about how the actual defendant actually committed the

underlying crime.

The Court’s second step is based on the Court’s deci-

sions in Johnson and Dimaya. The Court says that the

ordinary-case categorical approach makes §924(c)(3)(B)

unconstitutionally vague.

For purposes of this case, the Court’s error is its first

step—that is, in construing the substantial-risk prong of

§924(c)(3) to require an ordinary-case categorical ap-

proach. For three reasons, I disagree with the Court’s

analysis. First, the Court’s justifications in Johnson and

Dimaya for adopting the categorical approach do not apply

in the context of §924(c). Second, the text of §924(c)(3)(B)

is best read to focus on the actual defendant’s actual con-

duct during the underlying crime, not on a hypothetical

defendant’s imagined conduct during an ordinary case of

the underlying crime. Third, even if the text were ambig-

uous, the constitutional avoidance canon requires that we

interpret the statute to focus on the actual defendant’s

actual conduct.

I will address those three points in Parts II–A, II–B, and

II–C.

A

According to the Court, if §924(c)(3)(B) focused on the

Cite as: 588 U. S. ____ (2019) 13

KAVANAUGH, J., dissenting

defendant’s conduct during the underlying crime, then it

would not be unconstitutionally vague. But §924(c)(3)(B),

as the Court reads it, focuses on a hypothetical defend-

ant’s conduct during an ordinary case of the underlying

crime. As a result, the Court says that §924(c)(3)(B) is

unconstitutionally vague.

But it makes little sense, as I see it, to say that

§924(c)(3)(B)’s substantial-risk inquiry focuses on whether

a hypothetical defendant’s imagined conduct during an

ordinary case of the crime creates a substantial risk that

physical force may be used, rather than on whether the

actual defendant’s actual conduct during the actual crime

created a substantial risk that physical force may be used.

Why would we interpret a federal law that criminalizes

current-offense conduct to focus on a hypothetical defend-

ant rather than on the actual defendant? As Judge New-

som cogently wrote for the Eleventh Circuit en banc ma-

jority, “If you were to ask John Q. Public whether a

particular crime posed a substantial risk of violence,

surely he would respond, ‘Well, tell me how it went

down—what happened?’ ” Ovalles, 905 F. 3d, at 1241.19

Why does the Court read the substantial-risk prong in

such an unnatural way? The Court explains that Johnson

interpreted similar substantial-risk language to require

the ordinary-case categorical approach. See 576 U. S., at

___–___ (slip op., at 12–13). A plurality of the Court did

the same in Dimaya. See 584 U. S., at ___–___ (slip op., at

12–15). And the Court today casts this case as the third

installment in a trilogy with a predictable ending, one that

was supposedly foreordained by Johnson and Dimaya.

The gaping hole in the Court’s analysis, in my view, is

that Johnson and Dimaya addressed statutes that im-

——————

19 Judge Newsom’s majority opinion was joined by Chief Judge Ed

Carnes and Judges Tjoflat, Marcus, William Pryor, Rosenbaum,

Branch, and Hull.

14 UNITED STATES v. DAVIS

KAVANAUGH, J., dissenting

posed penalties based on a defendant’s prior criminal

convictions.

In Johnson, the Court interpreted a definition of “violent

felony” that was used in sentencing proceedings to classify

prior convictions as predicates for stricter sentences. See

§§924(e)(1), (e)(2)(B). In Dimaya, the Court interpreted a

definition of “crime of violence” that was used in immigra-

tion proceedings to classify prior convictions as predicates

for more severe immigration consequences. See §16 (de-

fining “crime of violence”); 8 U. S. C. §1101(a)(43)(F) (in-

corporating 18 U. S. C. §16); 8 U. S. C. §1227(a)(2)(A)(iii)

(deportation); §§1229b(a)(3), (b)(1)(C) (ineligibility for

cancellation of removal and adjustment of status).

In interpreting those statutes, the Court employed the

ordinary-case categorical approach to assess an individual’s

past convictions. And application of that categorical ap-

proach, the Court then said, rendered the statutes at issue

in those cases unconstitutionally vague. See Dimaya, 584

U. S., at ___–___ (slip op., at 9–11); Johnson, 576 U. S., at

___–___ (slip op., at 5–6).20

Two important principles drove the Court’s adoption of

the categorical approach in the prior-conviction context in

Johnson and Dimaya.

First, in the prior-conviction cases, the Court empha-

sized that the categorical approach avoids the difficulties

and inequities of relitigating “past convictions in minitri-

als conducted long after the fact.” Moncrieffe v. Holder,

569 U. S. 184, 200–201 (2013). Without the categorical

approach, courts would have to determine the underlying

——————

20 Tellingly, the Government in Johnson and Dimaya did not dispute

that the categorical approach was the proper method of interpreting the

statutes at issue. See Sessions v. Dimaya, 584 U. S. ___, ___ (2018)

(plurality opinion) (slip op., at 13); Johnson v. United States, 576 U. S.

___, ___ (2015) (slip op., at 13). In this case, the Government strenu-

ously disputes the applicability of the categorical approach precisely

because the inquiry is not about past convictions.

Cite as: 588 U. S. ____ (2019) 15

KAVANAUGH, J., dissenting

conduct from years-old or even decades-old documents

with varying levels of factual detail. See Taylor v. United

States, 495 U. S. 575, 601–602 (1990). The factual state-

ments that are contained in those documents are often

“prone to error.” Mathis v. United States, 579 U. S. ___,

___ (2016) (slip op., at 10). The categorical approach

avoids the unfairness of allowing inaccuracies to “come

back to haunt the defendant many years down the road.”

Id., at ___ (slip op., at 11). The Court has echoed that

reasoning time and again. See, e.g., Dimaya, 584 U. S., at

___ (plurality opinion) (slip op., at 15); Johnson, 576 U. S.,

at ___ (slip op., at 13); Descamps v. United States, 570

U. S. 254, 270 (2013); Chambers v. United States, 555

U. S. 122, 125 (2009).

Second, in the prior-conviction cases, the Court insisted

on the categorical approach to avoid “Sixth Amendment

concerns.” Descamps, 570 U. S., at 269. The Sixth

Amendment, as interpreted by this Court’s precedents,

does not allow a judge (rather than a jury) to make factual

determinations that increase the maximum penalty. See

Apprendi v. New Jersey, 530 U. S. 466, 490 (2000). The

Court has read its Sixth Amendment precedents to require

the categorical approach. Under the categorical approach,

the judge looks only to the fact of conviction and the statu-

tory definition of the prior offense. The Court has reiterated

those Sixth Amendment concerns in countless categorical-

approach cases. See, e.g., Dimaya, 584 U. S., at ___

(plurality opinion) (slip op., at 13); Mathis, 579 U. S., at

___ (slip op., at 10); Shepard v. United States, 544 U. S. 13,

24–25 (2005) (plurality opinion); Taylor, 495 U. S., at 601.

In short, the Court in Johnson and Dimaya employed

something akin to the constitutional avoidance doctrine to

read the statutes at issue to avoid practical and Sixth

Amendment problems. In the words of JUSTICE THOMAS,

the “categorical approach was never really about the best

reading of the text.” Dimaya, 584 U. S., at ___ (dissenting

16 UNITED STATES v. DAVIS

KAVANAUGH, J., dissenting

opinion) (slip op., at 28). As Judge Raggi has perceptively

stated: “[C]onstitutional avoidance informed the original

categorical-approach mandate.” United States v. Barrett,

903 F. 3d 166, 179 (CA2 2018).

But neither of the two reasons identified in Johnson and

Dimaya applies to 18 U. S. C. §924(c)(3)(B)—not even a

little.

First, §924(c) does not require examination of old con-

duct underlying a prior conviction. Section 924(c) operates

entirely in the present. In a §924(c) prosecution, there are

ordinarily two charged crimes: the underlying crime and

the §924(c) offense. Here, for example, the defendants

were charged with conspiracy to commit robbery and with

the §924(c) offense. The defendant’s conduct during the

underlying crime is part of the §924(c) offense. The con-

duct charged in the §924(c) offense is in front of the jury (if

the case goes to trial) or accepted by the defendant in the

plea agreement (if the defendant pleads guilty). The

indictment must allege specific offense conduct, and that

conduct must be proved with real-world facts in order to

obtain a conviction. There is no need to worry about stale

evidence or unavailable witnesses. Nor is there any need

to worry about inaccuracies in years-old or decades-old

documents coming back to haunt the defendant.

Second, §924(c) likewise raises no Sixth Amendment

concerns. A jury will find the facts or, if the case ends in a

guilty plea, the defendant will accept the facts in the plea

agreement. For the §924(c) charge, as relevant here, a

jury must find that the defendant’s conduct “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 defendant has the oppor-

tunity to contest the relevant facts either at the trial or in

plea negotiations. No Sixth Amendment issue arises in a

§924(c) prosecution.

No practical or Sixth Amendment problems exist with

Cite as: 588 U. S. ____ (2019) 17

KAVANAUGH, J., dissenting

§924(c)(3)(B). Indeed, the Court itself acknowledges that

“a case-specific approach wouldn’t yield the same practical

and Sixth Amendment complications” that arose in John-

son and Dimaya. Ante, at 8.

We should recognize that Johnson and Dimaya dealt

with an entirely different context: prior convictions. There

is no need to follow Johnson and Dimaya off the cliff here.

We should read §924(c)(3)(B) like the dozens of other

substantial-risk statutes in federal and state criminal law:

to focus on the actual defendant’s actual conduct during

the actual underlying crime, not on a hypothetical defend-

ant’s imagined conduct during an ordinary case of that

crime.

B

Now to the statutory text of §924(c)(3)(B). Even though

the context here is current-offense conduct, not past con-

victions, the Court says that the statutory language none-

theless compels a focus on a hypothetical defendant’s

imagined conduct, not on the actual defendant’s actual

conduct. I disagree. Criminal defendants are usually

punished based on what they actually did, not based on

what a hypothetical defendant might have done.

To begin with, the text of §924(c)(3)(B) must be inter-

preted against the backdrop of traditional criminal-law

practice. As described above, substantial-risk statutes are

commonplace in federal and state criminal law. Those

statutes ordinarily call for examination of the actual de-

fendant’s actual conduct during the actual crime. The

Court does not identify a single self-contained federal or

state law that defines the actus reus of the crime based on

the imagination of the judge about a hypothetical defend-

ant, rather than on the evidence before the jury about the

actual defendant.

This Court applied an exception in Johnson and Dimaya

for substantial-risk statutes that impose sentencing and

18 UNITED STATES v. DAVIS

KAVANAUGH, J., dissenting

other penalties based on past convictions. But that is an

exception for past convictions, not a rule for current-

offense conduct. Section 924(c)(3)(B) must be read in line

with the traditional, common practice of focusing on the

actual defendant’s actual conduct during the underlying

crime.

With that background, I turn to the precise text of

§924(c)(3). To repeat, the text of §924(c)(3) provides: A

defendant may not use or carry a firearm during and in

relation to, or possess a firearm in furtherance of, “an

offense that is a felony and” that either (A) “has as an

element the use, attempted use, or threatened use of

physical force against the person or property of another,”

or (B) “by its nature, involves a substantial risk that phys-

ical force against the person or property of another may be

used in the course of committing the offense.”

I will focus on four particular aspects of the statutory

text of §924(c)(3)(B).

First, start with the term “offense.” Section 924(c)(3)

has two prongs under which a defendant might qualify for

a §924(c) conviction: first, if the underlying crime auto-

matically qualifies as a crime of violence based on its

elements; and, second, if the defendant’s conduct during

the underlying crime created a substantial risk that phys-

ical force may be used, even if the underlying crime by its

elements does not constitute a crime of violence.

The term “offense” applies to both prongs. In the ele-

ments prong, the term refers to the elements of the under-

lying crime. In the substantial-risk prong, the term refers

to the defendant’s conduct during the underlying crime.

That is entirely commonplace and sensible.

Reading “offense” in that commonsense way follows

from the Court’s precedents interpreting the term “of-

fense.” As the Court has explained many times, the term

“offense” may “sometimes refer to a generic crime” and

may “sometimes refer to the specific acts in which an

Cite as: 588 U. S. ____ (2019) 19

KAVANAUGH, J., dissenting

offender engaged on a specific occasion.” Nijhawan v.

Holder, 557 U. S. 29, 33–34 (2009).21 Indeed, the single

term “offense” can refer to both in the same statutory

scheme. See, e.g., id., at 40; id., at 38 (listing other exam-

ples); United States v. Hayes, 555 U. S. 415, 421–422

(2009).

In United States v. Hayes, for example, the Court inter-

preted the term “misdemeanor crime of domestic violence.”

That term was defined as “an offense” that (1) “has, as an

element, the use or attempted use of physical force, or the

threatened use of a deadly weapon,” and (2) was “commit-

ted by” a person who has a particular relationship with

the victim. §921(a)(33)(A). The Court interpreted the

“offense that . . . has, as an element” language in that

provision to focus on the legal prohibition, and interpreted

the “offense . . . committed by” language to focus on the

defendant’s conduct. See Hayes, 555 U. S., at 421–422. In

other words, the term “offense” was used once but had two

different meanings as applied to the two different parts of

the statutory provision.

Another example is the Immigration and Nationality

Act. That statute defines “aggravated felony” in part as

“an offense” (1) that “involves fraud or deceit” and (2) “in

which the loss to the victim or victims exceeds $10,000.” 8

U. S. C. §1101(a)(43)(M)(i). The Court interpreted the

“offense that . . . involves fraud or deceit” language to

focus on the legal prohibition. See Kawashima v. Holder,

565 U. S. 478, 483 (2012). And the Court interpreted the

“offense . . . in which the loss” language to focus on the

individual’s conduct. See Nijhawan, 557 U. S., at 40.

Again, the term “offense” was used once, but had two

——————

21 More generally, this Court has often said that “identical language

may convey varying content” in the same statute, based on context.

Yates v. United States, 574 U. S. 528, 537 (2015) (plurality opinion); see

also Utility Air Regulatory Group v. EPA, 573 U. S. 302, 319–320

(2014).

20 UNITED STATES v. DAVIS

KAVANAUGH, J., dissenting

different meanings as applied to the two different parts of

the statutory provision.

Section 924(c)(3) is the same kind of statutory provision.

It likewise encompasses both the legal prohibition (in

subpart (A)) and the defendant’s actual conduct (in sub-

part (B)). The term “offense” was read in Hayes, Ka-

washima, and Nijhawan to encompass both the legal

prohibition and the defendant’s conduct. The term should

be read that same way here.

Moreover, if the substantial-risk prong of §924(c)(3)

requires assessing a hypothetical defendant’s conduct

rather than the actual defendant’s conduct, then there

would be little daylight between the elements prong and

the substantial-risk prong. After all, a crime is defined by

its elements. The elements tell you what happens in an

ordinary case of a crime. To imagine how a hypothetical

defendant would have committed an ordinary case of the

crime, you would presumably look back to the elements of

the crime. But doing that under the substantial-risk

prong—as the Court would do—would just duplicate the

inquiry that already occurs under the elements prong.

That would defeat Congress’ purpose in adding the

substantial-risk prong to §924(c)(3)—namely, covering

defendants who committed crimes that are not violent by

definition but that are committed by particular defendants

in ways that create a risk of violence. There is no reason

to think that Congress meant to duplicate the elements

prong in the substantial-risk prong.22

The Court usually tries to avoid an interpretation of a

statutory provision that would make the provision redun-

dant and accomplish virtually nothing. See, e.g., Republic

——————

22 Thisduplication point is icing on a textual cake already frosted. In

other words, our interpretation of the term “offense” is informed by the

text and by our precedents. Our interpretation stands with or without

the duplication argument.

Cite as: 588 U. S. ____ (2019) 21

KAVANAUGH, J., dissenting

of Sudan v. Harrison, 587 U. S. ___, ___ (2019) (slip op., at

10); Dastar Corp. v. Twentieth Century Fox Film Corp.,

539 U. S. 23, 35 (2003); Mackey v. Lanier Collection

Agency & Service, Inc., 486 U. S. 825, 837 (1988); A. Scalia &

B. Garner, Reading Law: The Interpretation of Legal

Texts 174–179 (2012); W. Eskridge, Interpreting Law: A

Primer on How to Read Statutes and the Constitution

112–114 (2016). We should heed that principle here, and

recognize that the term “offense” in the substantial-risk

prong refers to the actual defendant’s conduct during the

underlying crime.

In short, the term “offense” in §924(c)(3), as applied to

the substantial-risk prong, focuses on the actual defend-

ant’s actual conduct, not on a hypothetical defendant’s

imagined conduct.

Second, §924(c)(3)(B) asks whether the defendant’s

offense “by its nature” involves a risk that physical force

may be used. In a vacuum, the “nature” of an offense

could be either “the metaphysical ‘nature’ of the offense” or

“the underlying facts of the offense.” Dimaya, 584 U. S.,

at ___ (THOMAS, J., dissenting) (slip op., at 24). But that is

because the term “offense” could refer to a legal prohibi-

tion or to the defendant’s actual conduct. As explained

above, however, the term “offense” as applied to the

substantial-risk prong refers to the actual defendant’s con-

duct during the underlying crime. It follows that “by its na-

ture” focuses on the nature of the actual defendant’s con-

duct during the crime. The phrase “by its nature” is

linked to the term “offense.” If the term “offense” refers to

the defendant’s actual conduct, then “by its nature” also

focuses on the defendant’s actual conduct.

Under the conduct-specific approach to the substantial-

risk prong, the “by its nature” language simply means that

the Government has to show more than a defendant’s

proclivity for crime and more than the mere fact that the

defendant was carrying a gun. The Government has to

22 UNITED STATES v. DAVIS

KAVANAUGH, J., dissenting

show that the defendant’s conduct by its nature during the

crime created a substantial risk that physical force may be

used.

In short, as JUSTICE THOMAS has pointed out, it “is

entirely natural to use words like ‘nature’ and ‘offense’ to

refer to an offender’s actual underlying conduct.” Ibid. So

it is here.

Third, §924(c)(3)(B) asks whether the defendant’s con-

duct “involves” a substantial risk that physical force may

be used. In Taylor v. United States, a case involving a

prior-conviction statutory provision, the Court pointed to

the absence of the word “involved” in adopting a categori-

cal approach. 495 U. S., at 600. And in Nijhawan v.

Holder, another case involving a prior-conviction statutory

provision, the Court explained that the word “involves” did

not support a categorical approach. 557 U. S., at 36.

Here, unlike in Taylor, the statute does use the word

“involves.” Under Taylor’s reasoning, the inclusion of the

word “involves” in §924(c)(3)(B) supports the conclusion

that §924(c)(3)(B) employs a conduct-specific approach

rather than a categorical approach.

Fourth, §924(c)(3)(B)’s use of the phrase “in the course of

committing the offense” indicates that the proper focus is

on the actual defendant’s actual conduct, not on a hypo-

thetical defendant’s imagined conduct. After all, the

underlying offense was committed by the actual defend-

ant, not by a hypothetical defendant. It strains common

sense to think that the “in the course of committing the

offense” language in §924(c)(3)(B) contemplates an inquiry

into a hypothetical defendant’s conduct during an ordinary

case of the crime.

Importantly, the law at issue in Johnson did not have

the “in the course of committing the offense” language.

§924(e)(2)(B)(ii). That is a major textual difference be-

tween the law in Johnson on the one hand and

§924(c)(3)(B) on the other hand. And that textual distinc-

Cite as: 588 U. S. ____ (2019) 23

KAVANAUGH, J., dissenting

tion further shows that §924(c)(3)(B) focuses on the actual

defendant’s actual conduct.

In short, those four textual indicators, while not all

entirely one-sided, together strongly suggest that

§924(c)(3)(B) focuses on the actual defendant’s actual

conduct during the actual crime, not on a hypothetical

defendant’s imagined conduct during an ordinary case of

the crime.

On top of all the language in the statute, §924(c)(3)(B)

does not contain the critical term that ordinarily marks a

categorical approach.

Section 924(c)(3)(B) does not use the term “conviction.”

This Court has historically recognized the term “convic-

tion” as a key textual driver of the categorical approach.

In cases such as Taylor and Johnson, the Court zeroed in

on the word “convictions.” See Johnson, 576 U. S., at ___

(slip op., at 13); Taylor, 495 U. S., at 600; see also Mathis,

579 U. S., at ___ (slip op., at 9); Moncrieffe, 569 U. S., at

191; Ovalles, 905 F. 3d, at 1245. So too, the Court in

Leocal v. Ashcroft emphasized that the text of the INA

that incorporated §16(b) used the term “convicted.” 543

U. S. 1, 4, 7 (2004).23

The term “conviction” is nowhere to be found in the text

of §924(c)(3)(B). That should not come as a surprise, given

that §924(c)(3)(B) is a substantive criminal offense con-

cerned with the defendant’s current-offense conduct. The

absence of the term “conviction” in §924(c)(3)(B) strongly

——————

23 In Leocal, the Court interpreted §16(b) to require a categorical

approach. But unlike §924(c)(3)(B), that statutory provision applied in

the context of past convictions. See 8 U. S. C. §§1101(a)(43)(F),

1227(a)(2)(A)(iii); Sentencing Reform Act of 1984, §217(a), 98 Stat.

2021; Comprehensive Crime Control Act of 1984, §1202, 98 Stat. 2151.

To be sure, §16(b) was once incorporated into §924(c). But in 1986,

Congress severed the two provisions and included a standalone “crime

of violence” definition in §924(c). For those two reasons, §924(c)(3)(B)

need not and should not be interpreted in the same way as §16(b).

24 UNITED STATES v. DAVIS

KAVANAUGH, J., dissenting

supports a conduct-specific approach.

Put simply, the textual clues—both the words that are

used and the words that are not used—point strongly to

the conclusion that §924(c)(3)(B) requires a jury to assess

the actual defendant’s actual conduct during the underly-

ing crime. The conclusion becomes overwhelming when

considered against the general background of substantial-

risk statutes. To be sure, a statute can always be written

more clearly. But here, the textual toolkit leads decisively

to that conclusion.

C

But after all of that, suppose that you are not convinced.

Suppose that you think that this case is still a close call on

the text, even with the background of substantial-risk

statutes and the Court’s precedents. Indeed, suppose you

ultimately disagree with the above analysis of the text.

Even so, the Government still wins—unless it can be said

that §924(c)(3)(B) unambiguously requires a categorical

approach. Under the constitutional avoidance canon, the

precise question before us is not whether §924(c)(3)(B)

is best read to require a conduct-specific approach, but

rather (as the Court’s cases say) whether §924(c)(3)(B) can

reasonably, plausibly, or fairly possibly be interpreted to

require a conduct-specific approach. The answer to that

question is easy. Yes. See Hooper v. California, 155 U. S.

648, 657 (1895) (“reasonable”); Clark v. Martinez, 543

U. S. 371, 380 (2005) (“plausible”); Skilling v. United

States, 561 U. S. 358, 406 (2010) (“fairly possible” (internal

quotation marks omitted)).

The Court says that if §924(c)(3)(B) requires the categor-

ical approach, then it is unconstitutionally vague. But the

Court also says that if §924(c)(3)(B) focuses on the defend-

ant’s actual conduct, then it is constitutionally permissi-

ble. As the Court puts it, “a case-specific approach would

avoid the vagueness problems that doomed the statutes in

Cite as: 588 U. S. ____ (2019) 25

KAVANAUGH, J., dissenting

Johnson and Dimaya.” Ante, at 8. So the entire ball game

is whether it is fairly possible to interpret §924(c)(3)(B) to

require a conduct-specific approach. It surely is at least

fairly possible.

It is an elementary principle of statutory interpretation

that an ambiguous statute must be interpreted, whenever

possible, to avoid unconstitutionality. See generally Scalia,

Reading Law: The Interpretation of Legal Texts, at 247–

251; Eskridge, Interpreting Law: A Primer on How to

Read Statutes and the Constitution, at 317–322. That

uncontroversial principle of statutory interpretation dates

back to the Founding era. See Mossman v. Higginson, 4

Dall. 12, 14 (1800). As JUSTICE THOMAS has explained,

the traditional doctrine of constitutional avoidance com-

mands “courts, when faced with two plausible construc-

tions of a statute—one constitutional and the other uncon-

stitutional—to choose the constitutional reading.” Clark,

543 U. S., at 395 (dissenting opinion). This Court’s duty is

“not to destroy the Act if we can, but to construe it, if

consistent with the will of Congress, so as to comport with

constitutional limitations.” Civil Service Comm’n v. Letter

Carriers, 413 U. S. 548, 571 (1973). In discharging that

duty, “every reasonable construction must be resorted to,

in order to save a statute from unconstitutionality.”

Hooper, 155 U. S., at 657.

This Court’s longstanding practice of saving ambiguous

statutes from unconstitutionality where fairly possible

affords proper respect for the representative branches of

our Government. The Court has explained that “a pre-

sumption never ought to be indulged, that congress meant

to exercise or usurp any unconstitutional authority, unless

that conclusion is forced upon the Court by language

altogether unambiguous.” United States v. Coombs, 12

Pet. 72, 76 (1838).

In countless cases for more than 200 years, this Court

has recognized the principle that courts should construe

26 UNITED STATES v. DAVIS

KAVANAUGH, J., dissenting

ambiguous laws to be consistent with the Constitution.

See, e.g., McDonnell v. United States, 579 U. S. ___, ___–

___ (2016) (slip op., at 23–24); Skilling, 561 U. S., at 405–

409; Clark, 543 U. S., at 380–382; Edmond v. United

States, 520 U. S. 651, 658 (1997); Concrete Pipe & Prod-

ucts of Cal., Inc. v. Construction Laborers Pension Trust

for Southern Cal., 508 U. S. 602, 628–630 (1993); New

York v. United States, 505 U. S. 144, 170 (1992); Rust v.

Sullivan, 500 U. S. 173, 190–191 (1991); Public Citizen v.

Department of Justice, 491 U. S. 440, 465–467 (1989);

Communications Workers v. Beck, 487 U. S. 735, 762

(1988); Edward J. DeBartolo Corp. v. Florida Gulf Coast

Building & Constr. Trades Council, 485 U. S. 568, 575–

578 (1988); St. Martin Evangelical Lutheran Church v.

South Dakota, 451 U. S. 772, 780–781 (1981); Letter Carri-

ers, 413 U. S., at 571; Machinists v. Street, 367 U. S. 740,

749–750 (1961); Ashwander v. TVA, 297 U. S. 288, 348

(1936) (Brandeis, J., concurring); ICC v. Oregon-

Washington R. & Nav. Co., 288 U. S. 14, 40–42 (1933);

Crowell v. Benson, 285 U. S. 22, 62–63 (1932); Lucas v.

Alexander, 279 U. S. 573, 577–578 (1929); Richmond

Screw Anchor Co. v. United States, 275 U. S. 331, 345–346

(1928); Blodgett v. Holden, 275 U. S. 142, 148–149 (1927)

(opinion of Holmes, J.); Missouri Pacific R. Co. v. Boone,

270 U. S. 466, 471–472 (1926); Linder v. United States,

268 U. S. 5, 17–18 (1925); Panama R. Co. v. Johnson, 264

U. S. 375, 390 (1924); Texas v. Eastern Texas R. Co., 258

U. S. 204, 217 (1922); Baender v. Barnett, 255 U. S. 224,

225–226 (1921); United States v. Jin Fuey Moy, 241 U. S.

394, 401 (1916); United States ex rel. Attorney General v.

Delaware & Hudson Co., 213 U. S. 366, 407–408 (1909);

Hooper, 155 U. S., at 657; Grenada County Supervisors v.

Brogden, 112 U. S. 261, 268–269 (1884); Coombs, 12 Pet.,

at 76; Parsons v. Bedford, 3 Pet. 433, 448–449 (1830);

Mossman, 4 Dall., at 14.

To be clear, the case before us is not a case of avoiding

Cite as: 588 U. S. ____ (2019) 27

KAVANAUGH, J., dissenting

possible unconstitutionality. This is a case of avoiding

actual unconstitutionality. There is a debate about the

former practice. There is no real debate about the latter

rule. And it is the latter rule of statutory interpretation at

issue here.

Section 924(c)(3)(B) is best read to focus on the defend-

ant’s actual conduct. But at a minimum—given the text,

the background of substantial-risk laws, and the relevant

precedents—it is fairly possible to interpret §924(c)(3)(B)

to focus on the defendant’s actual conduct. Because that

reasonable interpretation would save §924(c)(3)(B) from

unconstitutionality, this case should be very straightfor-

ward, as Judge Newsom explained in his thorough majority

opinion in the Eleventh Circuit and as Judge Niemeyer

and Judge Richardson explained in their persuasive sepa-

rate opinions in the Fourth Circuit. Ovalles, 905 F. 3d, at

1251; Simms, 914 F. 3d, at 272 (opinion of Niemeyer, J.);

id., at 272–277 (opinion of Richardson, J.). We should

prefer the constitutional reading over the unconstitutional

reading.

The Court did not apply constitutional avoidance in

Johnson and Dimaya. Why not? In those two cases, the

Court explained, the canon of constitutional avoidance was

essentially rendered a nullity. That is because, as the

Court described the situation, the Court was between a

rock and a hard place. The categorical approach would

have led to Fifth Amendment vagueness concerns, whereas

applying the conduct-specific approach would have led to

Sixth Amendment jury-trial concerns. See Dimaya, 584

U. S., at ___–___ (plurality opinion) (slip op., at 13–14).

Here, by contrast, the Court is not between a rock and a

hard place. Applying the categorical approach to

§924(c)(3)(B) would lead to vagueness concerns, whereas

applying the conduct-specific approach would lead to no

constitutional concerns.

Faced with a choice between a rock and constitutionality,

28 UNITED STATES v. DAVIS

KAVANAUGH, J., dissenting

the Court chooses the rock. I do not understand that

choice.

The Court offers two related reasons for its choice to run

the statute into a rock. Neither reason holds up.

First, the Court concludes that the constitutional avoid-

ance canon must yield to the rule of lenity. That argu-

ment disregards the Court’s oft-repeated statements that

the rule of lenity is a tool of last resort that applies “only

when, after consulting traditional canons of statutory

construction,” grievous ambiguity remains. Hayes, 555

U. S., at 429 (internal quotation marks omitted); see also,

e.g., Ocasio v. United States, 578 U. S. ___, ___, n. 8 (2016)

(slip op., at 13, n. 8) (“after seizing everything from which

aid can be derived” (internal quotation marks omitted));

Muscarello v. United States, 524 U. S. 125, 138 (1998)

(same); United States v. Wells, 519 U. S. 482, 499 (1997)

(same); Reno v. Koray, 515 U. S. 50, 65 (1995) (same);

United States v. Shabani, 513 U. S. 10, 17 (1994) (“after

consulting traditional canons of statutory construction”);

Smith v. United States, 508 U. S. 223, 239 (1993) (“after

seizing every thing from which aid can be derived” (inter-

nal quotation marks and alterations omitted)); Moskal v.

United States, 498 U. S. 103, 108 (1990) (“after resort to

the language and structure, legislative history, and moti-

vating policies of the statute” (internal quotation marks

omitted)); Callanan v. United States, 364 U. S. 587, 596

(1961) (“at the end of the process of construing what Con-

gress has expressed”).

The constitutional avoidance canon is a traditional

canon of statutory interpretation. The constitutional

avoidance canon is employed to reach a reasonable inter-

pretation of an ambiguous statute. Where, as here, that

canon applies and yields such a reasonable interpretation,

no grievous ambiguity remains. The rule of lenity has no

role to play. Contrary to the Court’s assertion, the canon

of constitutional avoidance is not “at war” with the rule of

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KAVANAUGH, J., dissenting

lenity. Ante, at 19. The canon of constitutional avoidance

precedes the rule of lenity because the rule of lenity comes

into play (this Court has said countless times) only “after

consulting traditional canons of statutory construction.”

Hayes, 555 U. S., at 429 (emphasis added; internal quota-

tion marks omitted). The rule of lenity “comes into opera-

tion at the end of the process of construing what Congress

has expressed, not at the beginning as an overriding con-

sideration of being lenient to wrongdoers.” Callanan, 364

U. S., at 596.

In addition, the rule of lenity is triggered only in the

face of “grievous ambiguity.” Muscarello, 524 U. S., at 139

(internal quotation marks omitted). To reiterate,

§924(c)(3)(B) is best read to focus on the actual defendant’s

actual conduct. But to the extent that there is any ambi-

guity in §924(c)(3)(B), that ambiguity is far from grievous.

Second, and relatedly, the Court claims that the canon

of constitutional avoidance, as a general matter, cannot be

relied upon to broaden the scope of a criminal statute, as

opposed to narrowing the scope of a criminal statute. And

the Court says that the canon cannot be used here be-

cause, in the Court’s view, relying on the constitutional

avoidance canon in this case would expand the scope of

§924(c)(3)(B). I disagree for two independent reasons.

To begin with, that theory seems to come out of no-

where. The Court’s novel cabining of the constitutional

avoidance canon is not reflected in this Court’s precedents.

On the contrary, it contradicts several precedents. This

Court has applied the constitutional avoidance canon even

when avoiding the constitutional problems would have

broadened the statute’s scope. For example, in United

States v. Culbert, this Court rejected a narrowing con-

struction of the Hobbs Act because that construction

would have raised vagueness concerns. 435 U. S. 371, 374

(1978); see also United States v. Shreveport Grain & Ele-

vator Co., 287 U. S. 77, 82 (1932); cf. United States v.

30 UNITED STATES v. DAVIS

KAVANAUGH, J., dissenting

Grace, 461 U. S. 171, 176 (1983).

Moreover, the premise of this novel broadening/

narrowing theory is flawed. A categorical approach to

§924(c)(3)(B) would not be inherently narrower than a

conduct-specific approach. Each approach would sweep in

some crimes that the other would not. On the one hand,

some crimes that might be deemed categorically violent

sometimes may be committed in nonviolent ways. Those

crimes would be covered by the categorical approach but

not by a conduct-specific approach. On the other hand,

some categorically nonviolent crimes are committed in

violent ways. Those crimes would not be covered by the

categorical approach but would be covered by a conduct-

specific approach. See Johnson, 576 U. S., at ___ (ALITO,

J., dissenting) (slip op., at 12).

In sum, the constitutional avoidance canon makes this

an especially straightforward case. It is at least fairly

possible to read §924(c)(3)(B) to focus on the actual de-

fendant’s actual conduct during the actual crime. End of

case.

III

The consequences of the Court’s decision today will be

severe. By invalidating the substantial-risk prong of

§924(c)(3), the Court’s decision will thwart Congress’ law

enforcement policies, destabilize the criminal justice sys-

tem, and undermine safety in American communities. If

the law required those results, we would have to swallow

the consequences. But the law, in my respectful view,

does no such thing.

The Court’s decision means that people who in the

future commit violent crimes with firearms may be able to

escape conviction under §924(c). In enacting §924(c),

Congress sought to keep firearms away from violent crim-

inal situations. Today, the Court invalidates a critical

provision designed to achieve that goal. To be sure, many

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KAVANAUGH, J., dissenting

violent crimes still might fall within §924(c)(3)’s elements

clause. But many others might not. When defendants use

firearms during conspiracies to commit robbery, arsons,

attempted carjackings, and kidnapings, to name just a

few, they might no longer be subject to prosecution under

§924(c). See, e.g., Simms, 914 F. 3d, at 233–234 (conspiracy

to commit robbery); United States v. Salas, 889 F. 3d 681,

683–684 (CA10 2018) (arson); United States v. Jenkins,

849 F. 3d 390, 393 (CA7 2017) (kidnaping).

To get a flavor of the offenders who will now potentially

avoid conviction under §924(c), consider a sample of those

offenders who have been convicted under §924(c)(3)’s

substantial-risk prong:

 One defendant committed assault with intent to

commit murder. The defendant shot his wife multiple

times while the couple was camping in Buffalo River

National Park. See United States v. Prickett, 839

F. 3d 697, 698 (CA8 2016).

 One defendant committed arson. The defendant used

a molotov cocktail to firebomb the Irish Ink Tattoo

Shop. See Salas, 889 F. 3d, at 683; United States v.

Salazar, 2014 WL 12788997, *1 (NM, Aug. 14, 2014).

 One defendant and others kidnaped a man who they

believed had stolen money and an Xbox from the de-

fendant. They beat the man severely and threatened

to kill him. See Pet. for Cert. in United States v. Jen-

kins, O. T. 2017, No. 17–97, p. 2.

 One defendant committed conspiracy to commit rob-

bery. The defendant and his co-conspirators planned

to steal Percocet and cash from a man they thought

was a drug dealer. Armed with a pistol and a crow-

bar, they broke into the man’s home by shattering a

sliding glass door and found three men there. One of

the defendant’s co-conspirators attacked all three men

with the crowbar, and the defendant threatened the

32 UNITED STATES v. DAVIS

KAVANAUGH, J., dissenting

men with a pistol multiple times. See United States v.

Douglas, 907 F. 3d 1, 4–5 (CA1 2018).

 One defendant committed attempted carjacking.

Armed with guns and baseball bats, the defendant

and her co-conspirators robbed a grocery store and

carjacked two vehicles, pistol whipping the owner of

one of the vehicles in the process. They then attempted

to carjack a third vehicle. They approached a family

getting out of a minivan and demanded the keys. One

of the defendant’s co-conspirators hit a 13-year-old

girl in the mouth with a baseball bat. Another shot

an AK–47 at the girl’s family. See Ovalles, 905 F. 3d,

at 1235.

 One defendant operated multiple houses of prostitu-

tion in Annapolis. The defendant threatened per-

ceived competitors with violence. He also beat and

threatened women, sometimes to compel them to en-

gage in prostitution. See United States v. Fuertes, 805

F. 3d 485, 490–492 (CA4 2015).

 One defendant committed conspiracy to commit rob-

bery. In the middle of the night, the defendant and a

co-conspirator crawled into a McDonald’s through the

drive-through window. The defendant pointed a gun

at the restaurant’s manager and attempted to hit an-

other employee. The defendant demanded money,

and the manager complied. The defendant then re-

moved the money from the cash drawer, pistol

whipped the manager, threw the cash drawer at the

other employee, and fled the scene along with his co-

conspirators and $1,100. See Simms, 914 F. 3d, at

232.

 One defendant committed conspiracy to commit rob-

bery. The defendant and his co-conspirators commit-

ted a string of armed robberies of small businesses.

During the robberies, they wore masks and gloves.

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KAVANAUGH, J., dissenting

They were armed with guns, knives, and baseball

bats. They injured several people during the course of

their robberies, breaking bones, drawing blood, and

knocking people out. They also shot and killed one of

their victims point blank. See Barrett, 903 F. 3d, at

170, 184.

Those real-life stories highlight a second unfortunate

consequence of the Court’s decision. Many offenders who

have already committed violent crimes with firearms—

and who have already been convicted under §924(c)—may

be released early from prison. The Court’s decision will

apply to all defendants whose convictions are not yet final

on direct review and who preserved the argument. With

the benefit of this Court’s decision, many dangerous of-

fenders who received lengthy prison sentences as a result

of their violent conduct might walk out of prison early.

And who knows whether the ruling will be retroactive?

Courts will be inundated with collateral-review petitions

from some of the most dangerous federal offenders in

America. As Judge Niemeyer wrote in his separate opin-

ion in the Fourth Circuit, “thousands of §924(c)(1) convic-

tions will unnecessarily be challenged as premised on

what the majority today concludes is an unconstitutionally

vague provision, even though the parties in those cases

had little difficulty understanding, enforcing, or defending

the §924(c)(1) charges at issue.” Simms, 914 F. 3d, at 264.

Moreover, defendants who successfully challenge their

§924(c) convictions will not merely be resentenced. Ra-

ther, their §924(c) convictions will be thrown out altogether.

That is because, to restate an obvious point, §924(c) de-

fines a substantive criminal offense. To be sure, the

§924(c) defendants may also be serving other sentences for

other convictions (for instance, if they were convicted of

and sentenced for the underlying crime of violence). But

with the benefit of the Court’s decision, they may be able

to get their §924(c) convictions tossed and lop off years—

34 UNITED STATES v. DAVIS

KAVANAUGH, J., dissenting

potentially decades—from their total prison time.

All because the Court thinks that §924(c)(3)(B) unam-

biguously compels a focus on the imagined conduct of a

hypothetical defendant rather than on the actual conduct

of the actual defendant. That analysis is not persuasive,

especially in light of the constitutional avoidance doctrine.

It is true that the Government once advocated for a cate-

gorical approach. But in the early years after Congress

added a “crime of violence” definition to §924(c), before

courts settled on a categorical approach, the Government

correctly argued for a conduct-specific approach to the

substantial-risk prong. See, e.g., United States v. Cruz,

805 F. 2d 1464, 1469 (CA11 1986). The Government later

changed its tune only after the courts settled on a categor-

ical approach—at a time when it did not matter for consti-

tutional vagueness purposes, before Johnson and Dimaya.

In any event, the question is what to do now after Johnson

and Dimaya. The answer should not be hard. To quote

Judge William Pryor, writing for five judges in the Elev-

enth Circuit, how “did we ever reach the point where” we

“must debate whether a carjacking in which an assailant

struck a 13-year-old girl in the mouth with a baseball bat

and a cohort fired an AK–47 at her family is a crime of

violence? It’s nuts.” Ovalles, 905 F. 3d, at 1253 (concur-

ring opinion).

To be sure, the consequences cannot change our under-

standing of the law. But when the consequences are this

bad, it is useful to double-check the work. And double-

checking here, in my view, reveals several problems:

relying on cases from the prior-conviction context whose

rationales do not apply in this current-offense context; not

fully accounting for the long tradition of substantial-risk

criminal statutes; not reading the words of the statute in

context and consistent with precedents such as Hayes; and

then, perhaps most problematically, misapplying the

longstanding constitutional avoidance canon. After

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KAVANAUGH, J., dissenting

double-checking, it should be evident that the law does not

compel those serious consequences. I am not persuaded

that the Court can blame this decision on Congress. The

Court has a way out, if it wants a way out.

* * *

The Court usually reads statutes with a presumption of

rationality and a presumption of constitutionality. In-

stead of reading §924(c)(3)(B) to ensure that it is constitu-

tional, the Court reads §924(c)(3)(B) in a way that makes

it unconstitutional. The bedrock principle that the Court

interprets ambiguous statutes to avoid unconstitutionality

is seemingly transformed into a principle of interpreting

ambiguous statutes to lead to unconstitutionality.

I respect and entirely understand how the Court got

here. Johnson and Dimaya were earth-rattling decisions.

But we should not follow Johnson and Dimaya off the

constitutional cliff in this different §924(c) context. Unlike

the statutes at issue in Johnson and Dimaya, this statute

is not a prior-conviction statute. This statute operates

entirely in the present and is not remotely vague. I re-

spectfully dissent.