Opposition Brief — United States, Petitioner v. Maurice Lamont Davis and Andre Levon Glover

No. 18-431

IN THE

Supreme Court of the United States

___________

UNITED STATES,

v.

Petitioner,

MAURICE LAMONT DAVIS AND ANDRE LEVON GLOVER,

Respondents.

___________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

___________

BRIEF IN OPPOSITION FOR

ANDRE LEVON GLOVER

___________

JEFFREY T. GREEN

TOBIAS LOSS-EATON

SIDLEY AUSTIN LLP

1501 K STREET, N.W.

Washington, D.C. 20005

(202) 736-8000

J. JOSEPH MONGARAS*

TIFFANY TALAMENTEZ

UDASHEN & ANTON

2311 CEDAR SPRINGS #250

Dallas, TX 75201

(214) 468-8100

jjm@udashenanton.com

SARAH O’ROURKE SCHRUP

NORTHWESTERN SUPREME

COURT PRACTICUM

375 East Chicago Avenue

Chicago, IL 60611

(312) 503-0063

BRANDON E. BECK

ASSISTANT FEDERAL

PUBLIC DEFENDER

1205 TEXAS AVENUE #507

Lubbock, TX 79401

(806) 472-7236

Counsel for Respondents

November 30, 2018

* Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

iii

INTRODUCTION .................................................

1

REASONS TO DENY THE PETITION ...............

4

I. THE GOVERNMENT INVITED AND

WAIVED ANY ERROR WHEN IT REPEATEDLY INSISTED ON THE CATEGORICAL APPROACH BELOW ..................

4

II. THE ANSWER TO THE QUESTION

PRESENTED WILL NOT AFFECT THE

OUTCOME OF THIS CASE ........................

8

III. THE GOVERNMENT’S PETITION IS

PREMATURE...............................................

12

A. The circuit split is not entrenched and

the arguments are not fully developed ...

12

B. The judgment below is not yet final .........

13

IV. THE DECISION BELOW IS CORRECT ....

14

A. The text of the § 924(c) residual clause

requires a categorical approach, and this

Court’s precedents confirm it ...................

14

B. Section 924(c)’s legislative history shows

that it was intended to be applied the

same way as § 16.......................................

18

C. Congress has acquiesced in the court of

appeals’ long-standing and consistent

application of the categorical approach

under § 924(c) ............................................

19

D. The doctrine of constitutional avoidance

does not permit a conduct-based interpretation of § 924(c) ..................................

21

(i)

ii

TABLE OF CONTENTScontinued

Page

E. Under the categorical approach, the

§ 924 residual clause suffers from the

same fundamental defects as the ACCA

residual clause and § 16(b) .......................

24

CONCLUSION .....................................................

26

iii

CASES

TABLE OF AUTHORITIES

Page

Alleyne v. United States, 570 U.S. 99

(2013) .........................................................

9

Apprendi v. New Jersey, 530 U.S. 466

(2000) .........................................................

10

Bailey v. United States, 516 U.S. 137

(1995), superseded by statute as recognized in Welch v. United States, 136 S.

Ct. 1257 (2016) ..........................................

20

Bob Jones Univ. v. United States, 461 U.S.

574 (1983) ..................................................

21

Chevron, U.S.A., Inc. v. Nat. Res. Def.

Council,

Inc.,

467

U.S.

837

(1984) .........................................................

8

Clark v. Martinez, 543 U.S. 371

(2005) .................................................. 21, 23, 24

Gustafson v. Alloyd Co., 513 U.S. 561

(1995) .........................................................

16

Hamling v. United States, 418 U.S. 87

(1974) .........................................................

10

Hibbs v. Winn, 542 U.S. 88 (2004) ...............

22

James v. United States, 550 U.S. 192

(2007), overruled by Johnson v. United

States, 135 S. Ct. 2551 (2015) ...................

15

Jennings v. Rodriguez, 138 S. Ct. 830

(2018) ......................................................... 21, 22

Johnson v. United States, 135 S. Ct. 2551

(2015) ......................................................... passim

Leocal

v.

Ashcroft,

543

U.S.

1

(2004) .............................................. 5, 15, 17, 23

Neder v. United States, 527 U.S. 1 (1999) ...

10

Ovalles v. United States, 905 F.3d 1231

(11th Cir. 2018) .........................................

12

Preiser v. Newkirk, 422 U.S. 395 (1975) ......

11

iv

TABLE OF AUTHORITIEScontinued

Page

Sareang Ye v. I.N.S., 214 F.3d 1128 (9th

Cir. 2000) ...................................................

16

Sessions v. Dimaya, 138 S. Ct. 1204

(2018)............................................................ passim

Stirone v. United States, 361 U.S. 212

(1960) .........................................................

11

United States v. Amparo, 68 F.3d 1222 (9th

Cir. 1995) ...................................................

19

United States v. Barrett, 903 F.3d 166 (2d

Cir. 2018) ...................................................

12

United States v. Douglas, 907 F.3d 1 (1st

Cir. 2018) ................................................... 12, 13

United States v. Eshetu, 898 F.3d 36 (D.C.

Cir. 2018) ...................................................

12

United States v. Hill, 890 F.3d 51 (2d Cir.

2018) ..........................................................

20

United States v. McGuire, 706 F.3d 1333

(11th Cir. 2013), overruled by Ovalles v.

United States, 905 F.3d 1231 (11th Cir.

2018) .......................................................... 15, 20

United States v. Moore, 38 F.3d 977 (8th

Cir. 1994), abrogation recognized by

United States v. Torres-Villalobos, 487

F.3d 607 (8th Cir. 2007) ............................

19

United States v. Salas, 889 F.3d 681 (10th

Cir. 2018), petition for cert. filed (U.S.

Oct. 3, 2018) (No. 18-428) .........................

12

United States v. Taylor, 814 F.3d 340 (6th

Cir. 2016), cert. denied, 138 S. Ct. 1975

(2018) .........................................................

19

United States v. Velazquez-Overa, 100 F.3d

418 (5th Cir. 1996) ....................................

15

United States v. Venegas-Ornelas, 348 F.3d

1273 (10th Cir. 2003) ................................

15

v

TABLE OF AUTHORITIEScontinued

Page

United States v. Williams, 343 F.3d 423

(5th Cir. 2003) ...........................................

11

In re Winship, 397 U.S. 358 (1970) .............. 9, 10

Work v. United States ex rel. McAlesterEdwards Coal Co., 262 U.S. 200 (1923) ...

22

Zedner v. United States, 547 U.S. 489

(2006) .........................................................

7

CONSTITUTION AND STATUTES

18 U.S.C. § 16(b) ...........................................

14

18 U.S.C. § 924(c)(3)(B) ................................ 9, 14

Act of Nov. 13, 1998, Pub. L. No. 105-386,

112 Stat. 3469 (1998) ................................

20

Act of Oct. 6, 2006, Pub. L. No. 109-304,

120 Stat. 1485 (2006) ................................

21

Firearm Owners’ Protection Act, Pub. L.

No. 99-308, 100 Stat. 449 (1986) ..............

19

Gun Control Act of 1968, Pub. L. No. 90618, 82 Stat. 1213 (1968) ..........................

18

Protection of Lawful Commerce in Arms

Act, Pub. L. No. 109-92, 119 Stat. 2095

(2005) ......................................................... 20, 21

U.S. Const. amends. V, VI ...........................

10

COURT DOCUMENTS

Agreed Jury Charge, United States v. Glover, No. 3:15-CR-00094-O (N.D. Tex. Nov.

11, 2015), ECF No. 64 ............................... 5, 6

Brief for the United States, United States

v. Davis, No. 16-10330 (5th Cir. Oct. 17,

2016) ..........................................................

6

vi

TABLE OF AUTHORITIEScontinued

Page

Brief for the United States in Opposition,

Piszel v. United States, 138 S. Ct. 85

(2017)

(No.

16-1356),

2017

WL

3447922 .....................................................

9

Defendants’ Motion to Dismiss Counts Two

and Seven, United States v. Glover, No.

3:15-CR-00094-O (N.D. Tex. Nov. 3,

2015), ECF No. 56 .....................................

5

Government’s Response to Defendants’ Motion to Dismiss Counts Two and Seven,

United States v. Glover, No. 3:15-CR00094-O (N.D. Tex. Nov. 5, 2015), ECF

No. 59 .........................................................

5

Indictment, United States v. Glover, No.

3:15-CR-00094-O (N.D. Tex. Mar. 3,

2015), ECF No. 1 .......................................

11

Initial Brief for Appellant, United States v.

Davis, No. 16-10330 (5th Cir. Sept. 14,

2016) ..........................................................

6

Jury Charge, United States v. Glover, No.

3:15-CR-00094-O (N.D. Tex. Nov. 19,

2015), ECF No. 82 ..................................... 6, 9

OTHER AUTHORITIES

144 Cong. Rec. 26608 (1998) ........................

20

Black’s Law Dictionary (10th ed. 2014) ......

15

Collins English Dictionary (12th ed.

2014) ..........................................................

15

Fed. R. Crim. P. 30(d)...................................

6

S. Rep. No. 98-225 (1983) ............................. 18, 19

S. Rep. No. 98-583 (1984) .............................

19

Stern & Gressman, Supreme Court

Practice (10th ed. 2013) ............................

8

INTRODUCTION

The government’s petition asks the Court to decide

whether 18 U.S.C. § 924(c)(3)(B)—the residual clause

of the statute’s definition of “crime of violence”—is

unconstitutionally vague. This case is not the right

vehicle to decide that question, for several reasons.

First, the government invited the purported error

about which it now complains. The government does

not seriously dispute that, if § 924(c)’s residual clause

is construed to require a categorical approach to identifying a “crime of violence,” it is unconstitutionally

vague. It argues instead that the lower courts erred

by applying a categorical approach rather than a conduct-based one. But that is precisely what the government urged the lower courts to do: in its response

to a motion to dismiss, in the proposed jury instructions, and in the initial appeal. And the government

was successful: the district court instructed the jury

that Respondents’ conspiracy offenses were “crimes of

violence” as a matter of law, thereby depriving Respondents of the opportunity to dispute that their

conduct in this case satisfied the statutory definition.

Principles of invited error, waiver, and judicial estoppel all bar the government, having obtained Respondents’ convictions under a categorical reading of

the statute, from now arguing in this case that such a

reading is erroneous. In turn, these principles also

stand as an obstacle to the resolution of the question

presented here.

Second, the question presented has no impact on

the outcome of this case. The Fifth Circuit vacated

Respondents’ § 924(c) convictions under Count Two of

the indictment, which alleged the use of a firearm in

furtherance of a conspiracy to commit Hobbs Act robbery, because “Defendants could only have been con-

2

victed as to Count Two under the residual clause,”

and § 924(c)’s residual clause is unconstitutionally

vague. Pet. App. 4a–5a. But even if this Court were to

uphold the residual clause, the result would not

change. If the government’s conduct-based approach

to the residual clause is correct, then (as the government concedes) applying the clause requires “a jury

finding beyond a reasonable doubt about the ‘realworld conduct’ proved in the case.” Pet. 12. No such

finding was sought or made. Nor did the indictment

allege that Respondents’ conduct in this case satisfied

the residual clause. Consequently, on the government’s own account of the statute, Respondents’ convictions would violate their rights to indictment, due

process, and trial by jury.

Further, any deprivation of the right to a jury trial

would not be harmless. The indictment’s failure to

allege facts supporting application of the residual

clause is structural error, and the omission of this element from the jury charge was not uncontested, barring any harmless error finding.

At the very least, these issues present threshold

questions the Court would need to decide before

reaching the question presented, lest it render an advisory opinion. At most, they demonstrate at the outset that the question presented has no effect on the

judgment below. In either case, they show that the

Court should not grant review in this case when it

can easily decide the question in another case without these vehicle problems. Certainly, the government can wait for a case in which it has not actively

sought to deprive the defendant of the fundamental

right to a jury trial it now says applies here.

Third, the government’s petition is premature. Only six circuits have considered the question presented

after Sessions v. Dimaya, 138 S. Ct. 1204 (2018), and

3

only one has done so en banc. The courts of appeals

may yet converge on a consensus view that renders

this Court’s review unnecessary. In all events, granting review now would truncate the evolving arguments for and against the statute’s validity. Further

percolation, by contrast, would ensure that (if the

split remains) this Court will benefit from the most

developed and sharpened versions of those arguments.

Fourth, the decision below was correct. Section

924(c)’s residual clause shares the same textual features that prompted this Court to apply the categorical approach under the residual clauses of the Armed

Career Criminal Act (ACCA) and the “crime of violence” definition in 18 U.S.C. § 16(b). In particular,

the § 924(c) residual clause’s insistence on judging an

“offense” “by its nature” makes clear that the clause

“tells courts to figure out what an offense normally—

or . . . ‘ordinarily’—entails, not what happened to occur on one occasion.” Dimaya, 138 S. Ct. at 1217–18

(plurality opinion). These parallels are unsurprising,

as § 924(c)’s legislative history shows that its “crime

of violence” definition grew out of § 16 and was intended to be applied in the same way. Indeed, that is

how the courts of appeals have interpreted the residual clause for years, and Congress—despite often

amending § 924(c), including in response to judicial

decisions it disagrees with—has never acted to modify that approach.

The canon of constitutional avoidance cannot overcome the clear statutory text, this Court’s precedents

construing materially identical clauses, and § 924(c)’s

legislative history. Avoidance requires more than one

plausible reading of the statute. Here, there is only

one: a categorical reading that considers the “nature”

of an offense in the abstract. The government’s pro-

4

posed alternative reading renders the phrase “by its

nature” superfluous and requires the word “offense”

to have two different meanings in the same provision.

The avoidance canon does not license such departures

from normal interpretive principles. Consequently,

the Fifth Circuit was correct that § 924(c)’s residual

clause must be applied categorically, and equally correct that it is therefore invalid under Dimaya.

The Court should deny the petition and, if the question presented still requires resolution, await another

case where the question was properly preserved and

will affect the outcome.

REASONS TO DENY THE PETITION

I. THE

GOVERNMENT

INVITED

AND

WAIVED ANY ERROR WHEN IT REPEATEDLY INSISTED ON THE CATEGORICAL

APPROACH BELOW.

The government contends that the Fifth Circuit

“erred in construing 18 U.S.C. § 924(c)(3)(B)” to require the categorical “ordinary case” approach. Pet.

11–12. But that is exactly what the government advocated below. The government had several opportunities to express a different view. Not only did the

government fail to object to the categorical approach,

it actively advocated for it at every turn. In doing so,

the government invited the very “error” it now complains of and waived any argument that the lower

courts should have construed the § 924(c) residual

clause differently. The government has positioned itself poorly to invoke this Court’s discretionary jurisdiction to vindicate a position it fought against in the

lower courts.

This issue first arose in Respondents’ pretrial Motion to Dismiss Counts Two and Seven of the indict-

5

ment. Respondents argued that, under the categorical

approach, the § 924(c) residual clause was void for

vagueness in light of Johnson v. United States, 135

S. Ct. 2551 (2015). Defendants’ Motion to Dismiss

Counts Two and Seven at 1–6, United States v. Glover, No. 3:15-CR-00094-O (N.D. Tex. Nov. 3, 2015),

ECF No. 56. The government’s response wholly embraced the categorical approach as the appropriate

interpretive framework. The government acknowledged that the § 924(c) residual clause, like the statute in Johnson, involves an “ordinary-case inquiry,”

and insisted that the clause “does not go beyond the

elements of the offense to consider potential extraoffense conduct.” Government’s Response to Defendants’ Motion to Dismiss Counts Two and Seven at 3,

5, United States v. Glover, No. 3:15-CR-00094-O (N.D.

Tex. Nov. 5, 2015), ECF No. 59. And the government

relied heavily on Leocal v. Ashcroft, see id. at 6, in

which this Court construed § 16 to “require us 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. 1, 7 (2004). In short, the

government “advocated an ordinary-case categorical

approach . . . under Section 924(c)(3)(B),” cf. Pet. 12,

urging the district court to apply the § 924(c) residual

clause the same way this Court applied § 16(b) in

Leocal—categorically.

The government’s second (and best) opportunity to

object to the categorical approach was in its proposed

jury instructions. Again it took the opposite tack. The

government, joined by Respondents, proposed a jury

charge under which the district court would apply

§ 924(c)’s “crime of violence” definition categorically

and instruct the jury that robbery and conspiracy to

commit robbery were “crimes of violence” as a matter

of law. See Agreed Jury Charge at 30, United States

6

v. Glover, No. 3:15-CR-00094-O (N.D. Tex. Nov. 11,

2015), ECF No. 64 (“I instruct you that the crimes alleged in Counts One and Six are crimes of violence.”).

This phrase remained in the final jury charge, unaltered and without objection. Jury Charge at 13, United States v. Glover, No. 3:15-CR-00094-O (N.D. Tex.

Nov. 19, 2015), ECF No. 82 (“Jury Charge”); see Fed.

R. Crim. P. 30(d) (“Failure to object [to a jury instruction] in accordance with this rule precludes appellate

review . . . .”).

The government’s third opportunity came in its response to Mr. Glover’s initial appeal. Mr. Glover argued that the district court erred by refusing to let

the jury decide whether Hobbs Act Robbery or Conspiracy to Commit Hobbs Act Robbery were “crimes of

violence” under § 924(c). Initial Brief for Appellant at

25–26, United States v. Davis, No. 16-10330 (5th Cir.

Sept. 14, 2016). In response, the government argued

that “the [jury] instruction was correct” and that Mr.

Glover’s “argument should be rejected because he invited the court to instruct the jury as it did.” Brief for

the United States, United States v. Davis, No. 1610330 (5th Cir. Oct. 17, 2016). But what is good for

the goose is good for the gander: if the government is

held to the same waiver standard it urged below, it

too must accept the jury instruction it affirmatively

advocated, under which the § 924(c) residual clause is

applied categorically.

The government first “attempt[ed] to change its

prior approach to these cases” in its supplemental

briefing in the Fifth Circuit, Pet. App. 4a, after this

case had already been remanded by this Court in

light of Sessions v. Dimaya, 138 S. Ct. 1204 (2018).

Dimaya, of course, did not change the text of § 924(c).

Indeed, it confirmed that an identically worded statute requires the categorical approach. At most, Di-

7

maya’s constitutional holding created a new incentive

for the government to read the statute differently. If

litigation is to be more than a game, however, a party

cannot reverse its position merely because that position turns out to be less advantageous than it previously seemed.

The government’s attempt to reverse course here is

particularly inappropriate because the conduct-based

approach would have benefited Respondents at trial.

Under the conduct-based approach, the district court

would have had no choice but to dismiss Count Two

because the grand jury did not allege that the conspiracy, by its nature, presented a substantial risk of

force against the person or property of another. Further, Respondents lost the chance to argue to the jury

that the facts of this particular conspiracy did not

constitute a crime of violence.

Having secured Respondents’ indictment and conviction by relying on the categorical approach, the

government cannot now attempt to preserve those

victories by adopting the opposite interpretation of

the statute. See Zedner v. United States, 547 U.S.

489, 504 (2006) (“[W]here a party assumes a certain

position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply

because his interests have changed, assume a contrary position, especially if it be to the prejudice of the

party who has acquiesced in the position formerly

taken by him.”). The government successfully avoided

a jury trial on the risk of force by arguing for the categorical approach. Now, without offering Respondents a jury trial, it wants this Court to hold that they

should have been given one. This Court can surely

find a way to address this question, if necessary,

without condoning the government’s contortions in

this case.

8

For these reasons, this is not the appropriate case

to decide whether the § 924(c) residual clause requires a categorical approach. The Court should wait

for a case where the issue was timely raised and preserved by the party seeking review. That might be a

case arising from a circuit that has adopted a conduct-based approach after Dimaya or (at the very

least) a case in which the government objected to the

categorical approach in the district court. Neither occurred here.

II. THE ANSWER TO THE QUESTION PRESENTED WILL NOT AFFECT THE OUTCOME OF THIS CASE.

Respondents were convicted under a reading of the

§ 924(c) residual clause that permitted the district

judge to decide—and to instruct the jury—that their

predicate offenses were categorically “crimes of violence” as a matter of law. The Fifth Circuit vacated

Respondents’ § 924(c) convictions on Count Two because, so construed, the § 924(c) residual clause is

unconstitutionally vague. Pet. App. 6a.

Even if this Court were to grant review and uphold

the residual clause, that holding would have no effect

on the outcome of this case: Respondents’ convictions

on Count Two would remain vacated. Contra Pet. 25–

26. Accordingly, there is no basis to disturb the judgment below. See Chevron, U.S.A., Inc. v. Nat. Res.

Def. Council, Inc., 467 U.S. 837, 842 (1984) (“[T]his

Court reviews judgments, not opinions.”); Stern &

Gressman, Supreme Court Practice § 4.I.4(f), p. 249

(10th ed. 2013) (even “a clear conflict” does not warrant review if it “is irrelevant to the ultimate outcome”). In the government’s own words, “this case

would be a poor vehicle for addressing the question

presented” because “a decision in [the government’s]

favor on the question presented would not change the

9

result in this case.” E.g., Brief for the United States

in Opposition at 14–15, Piszel v. United States, 138

S. Ct. 85 (2017) (No. 16-1356), 2017 WL 3447922.

That is true for two related reasons: (1) if a conduct-based approach is appropriate, then the indictment and jury instructions violated the Fifth and

Sixth Amendments; and (2) these errors were not

harmless, but structural.

First, if the government is correct that § 924(c)’s residual clause requires a conduct-based approach,

then the clause’s application becomes an element of

the offense, requiring (as the government admits) “a

jury finding beyond a reasonable doubt.” Pet. 12.

“Any fact that, by law, increases the penalty for a

crime is an ‘element’ that must be submitted to the

jury and found beyond a reasonable doubt.” See Alleyne v. United States, 570 U.S. 99, 103 (2013); accord

In re Winship, 397 U.S. 358, 364 (1970). Thus, if the

government is right, the indictment had to allege that

Respondents’ offense conduct presented a substantial

risk of the use of physical force, and the prosecution

had to prove it to the jury.

None of that happened here. The grand jury did not

find, and the indictment did not allege, that the conspiracy in Count One “by its nature, involve[d] a substantial risk that physical force against the person or

property of another may be used in the course of

committing the offense.” See 18 U.S.C. § 924(c)(3)(B).

And the trial jury was never asked to apply the

§ 924(c) residual clause’s uncertain “risk” standard to

the “nature” of the conspiracy because the district

court instructed the jury that Respondents’ offenses

were categorically “crimes of violence” as a matter of

law. Jury Charge 12–14. So, if § 924(c)’s residual

clause is to be applied based on the facts of a particular case, Respondents’ convictions would violate their

10

constitutional rights to indictment, due process, and

trial by jury. U.S. Const. amends. V, VI; see Apprendi

v. New Jersey, 530 U.S. 466, 477–78 (2000); In re

Winship, 397 U.S. at 364.

Second, contrary to the government’s argument,

these errors would not be “harmless” under Neder v.

United States, 527 U.S. 1 (1999). Pet. 26. To find that

the omission of an essential element was harmless,

the Court must conclude that “the omitted element

was uncontested and supported by overwhelming evidence.” Neder, 527 U.S. at 17 (emphasis added).

Neder assumes that the defendant was on notice of

the elements of the charged crimes, giving him a full

and fair opportunity to contest the omitted element.

That is not this case here. The government cannot

invoke Neder for the proposition that the omitted element was “uncontested” in the evidence when the

only reason that it was uncontested is that Respondents were not on notice that they could contest it.

Had the law—and the government—given notice that

defendants could contest the risk of force associated

with their own, particular conspiracy, they could

have investigated or presented evidence on that subject. At a minimum, Respondents could have testified

to the jury about whether they were individually prepared to use force to complete the offense, or whether,

instead, they were bluffing. The loss of this opportunity cannot be termed harmless.

Likewise, “an indictment is sufficient” only if it

“contains the elements of the offense charged and

fairly informs a defendant of the charge against

which he must defend.” Hamling v. United States,

418 U.S. 87, 117 (1974). If the government were correct that the conduct-based approach applies, the indictment in this case would have violated Hamling.

Respondents had no notice that they had to (or even

11

could) defend factually against the “crime of violence”

charge, which was treated as a legal issue for the

judge rather than a factual issue for the jury. In fact,

Fifth Circuit precedent at the time required this result. See Pet. App. 4a–5a; United States v. Williams,

343 F.3d 423, 431 (5th Cir. 2003).

This lack of notice is a structural error. Since early

in the Nation’s history, “it has been the rule that after an indictment has been returned its charges may

not be broadened through amendment except by the

grand jury itself.” Stirone v. United States, 361 U.S.

212, 215–16 (1960). Here, the grand jury alleged only

that Respondents used a firearm during a “crime of

violence” defined categorically; it did not charge any

conduct specifically alleged to involve a substantial

risk that physical force would be used “by its nature.”

See Indictment at 5, 10, United States v. Glover, No.

3:15-CR-00094-O (N.D. Tex. Mar. 3, 2015), ECF No.

1. Thus, accepting the government’s argument that

Respondents’ convictions should be affirmed would

“destroy[] the defendant’s substantial right to be tried

only on charges presented in an indictment returned

by a grand jury.” Stirone, 361 U.S. at 217. Because

“[d]eprivation of such a basic right is far too serious

to be . . . dismissed as harmless error,” vacatur is

necessary even if the Court accepts the government’s

conduct-based approach. Id.

These issues underscore that this case is a poor vehicle. If the Court grants review, it will at least have

to decide whether these errors were harmless or

structural. The answer to that question, in turn, may

prevent the Court from reaching the merits of the

question presented. See Preiser v. Newkirk, 422 U.S.

395, 401 (1975) (“[A] federal court has neither the

power to render advisory opinions nor ‘to decide questions that cannot affect the rights of litigants in the

12

case before them.’”). And even if it does not, there is

no need to complicate the resolution of the question

presented by granting review in this case instead of

another case that does not present these threshold

issues.

III. THE

GOVERNMENT’S

PREMATURE.

PETITION

IS

A. The circuit split is not entrenched and

the arguments are not fully developed.

Just six circuits have considered the constitutionality of the § 924(c) residual clause in light of Dimaya.

Pet. App. 1a–9a; United States v. Barrett, 903 F.3d

166 (2d Cir. 2018); Ovalles v. United States, 905 F.3d

1231 (11th Cir. 2018) (en banc); United States v.

Eshetu, 898 F.3d 36 (D.C. Cir. 2018) (per curiam);

United States v. Salas, 889 F.3d 681 (10th Cir. 2018),

petition for cert. filed (U.S. Oct. 3, 2018) (No. 18-428);

United States v. Douglas, 907 F.3d 1 (1st Cir. 2018).

Only the Eleventh Circuit has done so en banc. See

Ovalles, 905 F.3d 1231. Many other cases are still

pending below. It is still possible that the other circuits, after en banc reconsideration of their own precedent, will join the Eleventh in agreeing with the

government. If that happens, review will be unnecessary. The Court should hesitate to review this issue

until at least one circuit, sitting en banc after Dimaya, holds the § 924(c) residual clause unconstitutional. Until that time, further percolation may resolve the issue without this Court’s intervention.

In all events, this Court should at least delay review so the parties’ arguments and the lower courts’

analyses can sharpen into their most focused and mature form. To illustrate: right now, the argument carrying the day for the government is the canon of constitutional avoidance. See Barrett, 903 F.3d at 178;

13

Ovalles, 905 F.3d at 1240; Douglas, 907 F.3d at 15–

16. But the government’s arguments based on constitutional avoidance and constitutional doubt did not

see any traction until the Second Circuit decided Barrett on September 10, 2018. And the argument has

continued to evolve in Ovalles and, most recently, in

Douglas. See 907 F.3d at 15–16. There were different

arguments prior to Barrett, and there will likely be

new arguments after Douglas.

It is important to let this process develop so the

Court may benefit from the best and final versions of

the arguments being advanced, and from the views of

additional courts of appeals. Granting review now,

while the arguments and case law are in a state of

dramatic flux, would prematurely terminate this salutary process. Conversely, delaying review would

provide enormous benefit to this Court and may render review unnecessary.

The government contends that review cannot await

further development. Not so. The present issue pertains only to a tiny fraction of 924(c) prosecutions:

those involving not merely a crime of violence rather

than a drug offense, but involving a particular crime

of violence that does not involve the use of force as an

element. The mine-run of completed bank robberies,

Hobbs Act robberies, and carjackings all remain valid

bases for § 924(c) liability under any interpretation.

B. The judgment below is not yet final.

Both Respondents have moved for panel rehearing

on matters unrelated to the constitutionality of the

§ 924(c) residual clause. These petitions deal with the

application of the ACCA sentencing enhancement in

light of current Fifth Circuit precedent and the correct application of the sentencing package doctrine.

Both grounds would require resentencing irrespective

14

of the outcome of the question presented. On November 27, 2018, the Fifth Circuit directed the government to respond to these petitions.

Until Respondents are resentenced, the government’s petition is premature. And once Respondents

are resentenced, the government would be free to

seek certiorari in this case (if warranted) or any other.

IV. THE DECISION BELOW IS CORRECT.

A. The text of the § 924(c) residual clause

requires a categorical approach, and

this Court’s precedents confirm it.

Section 924(c)’s residual clause provides, in full:

“For purposes of this subsection the term ‘crime of violence’ means an 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.”

18 U.S.C. § 924(c)(3)(B). Two particular characteristics of this language call for a categorical approach:

(1) the phrase “by its nature”; and (2) the function

that the term “offense” performs in this provision.

Moreover, the Court’s precedents “have consistently

understood [materially indistinguishable] language

in the residual clauses of both the ACCA and § 16 to

refer to ‘the statute of conviction, not to the facts of

each defendant’s conduct.’” Dimaya, 138 S. Ct. at

1217 (plurality opinion). 1

Like § 16(b), the § 924(c) residual clause uses the

phrase “by its nature.” The Dimaya plurality ex1 Section 16(b) covers “any . . . 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.” 18 U.S.C. § 16(b).

15

plained that an “offense’s ‘nature’ means its ‘normal

and characteristic quality.’” 138 S. Ct. at 1217 (plurality opinion); see also id. at 1233 (Gorsuch, J., concurring) (“the word ‘nature’ might refer to an inevitable characteristic of the offense; one that would present itself automatically, whenever the statute is violated”). Likewise, Black’s Law Dictionary defines “nature” as “[a] fundamental quality that distinguishes

one thing from another; the essence of something.”

Nature, Black’s Law Dictionary (10th ed. 2014). And

the Collins English Dictionary defines the phrase “by

its nature” to mean that “things of that type always

have that characteristic.” By Its Nature, Collins English Dictionary (12th ed. 2014). Indeed, this Court

has used “nature” in precisely this way to refer to a

generic offense. See James v. United States, 550 U.S.

192, 207–08 (2007), overruled by Johnson, 135 S. Ct.

2551 (using “by its nature” to define the “ordinary

case” approach); Leocal, 543 U.S. at 7 (“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.”).

Courts of appeals before Dimaya likewise understood the simple, plain meaning of “by its nature” to

call for a categorical approach. As the Fifth Circuit

aptly summarized, “the phrase ‘by its nature’ compels

a categorical approach to determining whether an offense is a crime of violence under Section 16(b) . . . .

The reason is clear: either a crime is violent ‘by its

nature’ or it is not. It cannot be a crime of violence ‘by

its nature’ in some cases, but not others, depending

on the circumstances.” United States v. VelazquezOvera, 100 F.3d 418, 420–21 (5th Cir. 1996); see also

United States v. McGuire, 706 F.3d 1333, 1336–37

(11th Cir. 2013) (similar); United States v. VenegasOrnelas, 348 F.3d 1273, 1276 (10th Cir. 2003) (simi-

16

lar); Sareang Ye v. I.N.S., 214 F.3d 1128, 1133 (9th

Cir. 2000) (similar). These consistent interpretations

lead to one conclusion: the residual clause “tells

courts to figure out what an offense normally—or . . .

‘ordinarily’—entails, not what happened to occur on

one occasion.” Dimaya, 138 S. Ct. at 1217–18 (plurality opinion).

Indeed, it is difficult to understand what role the

phrase “by its nature” might play in the statute if not

to demand the categorical approach. It is not at all

clear how a court asked to decide whether the facts of

an offense create the risk of force would approach its

job differently than one asked to make the same determination based on “the nature” of those particular

facts. By contrast, Respondents’ interpretation—and

the interpretation of every court to confront that language before Dimaya—gives the phrase a clear function: “the nature” of an offense is its statutory elements. Requiring that it pose a risk of force “by its

nature” requires that it examine the elements of the

statute, not the particular facts. Respondents’ position—but not the government’s—thus “avoid[s] a

reading which renders [these] words altogether redundant.” Gustafson v. Alloyd Co., 513 U.S. 561, 574

(1995).

This reading is bolstered by the role of the term “offense” in the residual clause. “Offense” makes two

appearances in § 924(c)(3): First, as a global term

that is distributed across both the elements clause

and the residual clause (“an offense that is a felony”);

and second, as a stand-alone term in the residual

clause (“in the course of committing the offense”). It is

undisputed that the global term “offense,” as distributed across both clauses, refers to the criminal violation generically rather than the facts of the case. But

the government overlooks that it is this use of “of-

17

fense”—which is undisputedly categorical—to which

the phrase “by its nature” attaches. In other words,

the statute uses “by its nature,” which refers to

things that “always have [a given] characteristic,” to

refer back to the generic “offense that is a felony.” All

of this shows that the statute calls for a categorical

inquiry.

The Court’s precedents interpreting materially indistinguishable language in § 16(b) support the same

reading. Leocal emphasized § 16(b)’s use of the

phrase “by its nature” in concluding that “the statute

directs our focus to the ‘offense’ of conviction . . . rather than to the particular facts relating to [the defendant’s] crime.” 543 U.S. at 7. And Dimaya again

explained that § 16(b)’s text—which is materially

identical to § 924(c)’s residual clause—“creates no

draw: Best read, it demands a categorical approach.”

138 S. Ct. at 1217 (plurality opinion). As the Court

explained, the phrase “by its nature” supports a categorical interpretation, id., and terms such as “conviction,” “felony,” and “offense” “are ‘read naturally’ to

denote the ‘crime as generally committed,” id. (quoting Nijhawan v. Holder, 557 U.S. 29, 34 (2009)).

Because the § 924(c) residual clause’s language is

materially identical to § 16(b)’s, this Court should follow the same construction for the same textual reasons. To hold otherwise would be to assume that

Congress intended the same language, as used in

provisions serving very similar purposes, to be read

in fundamentally different ways. There is no textual

indication that Congress intended that anomalous

result.

18

B. Section 924(c)’s legislative history shows

that it was intended to be applied the

same way as § 16.

Section 924(c)’s legislative history shows that Congress intended courts to use the categorical approach.

Section 924(c) was initially enacted as part of the

Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat.

1213 (1968). The section imposed a mandatory minimum sentence for the use or carrying of a firearm in

the commission of a felony. See id. § 102, 82 Stat. at

1223–24.

In 1984, Congress amended § 924(c) to abrogate

Simpson v. United States, 435 U.S. 6 (1978), and

Busic v. United States, 446 U.S. 398 (1980), which

had in Congress’s view “greatly reduced [the statute’s] effectiveness as a deterrent to violent crime.” S.

Rep. No. 98-225, at 312 (1983). In keeping with the

categorical approach, the Senate Report said that

§ 924(c) is targeted to reach specific statutes that “are

precisely the type of extremely dangerous offenses for

which a mandatory punishment for the use of a firearm is the most appropriate.” Id.

However, the 1984 Amendment did not explicitly

define “crime of violence” for § 924(c)’s purposes. Rather, Congress relied on the general definition of

“crime of violence” found in § 16. Id. at 307 (“[T]he

phrase is commonly used throughout the bill, and accordingly the Committee has chosen to define it for

general application in title 18.”) (footnote omitted); id.

at 389 n.7 (“The term ‘crime of violence’ is defined in

18 U.S.C. 16 . . . .”); id. at 316 n.3 (similar); id. at 313

n.9 (similar). Under § 16’s general definition, “crime

of violence” meant “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 any felony that, by its nature, involves the

19

substantial risk that physical force against another

person or property may be used in the course of its

commission.” Id. at 307.

Finally, in 1986, Congress amended § 924(c) to explicitly define “crime of violence”—using the same

language as § 16. See Firearm Owners’ Protection

Act, Pub. L. No. 99-308, § 104(a)(2)(F), 100 Stat. 449,

457 (1986); S. Rep. No. 98-583, at 22 (1984) (noting

the “amendment to Section 924(c) which, with some

modifications, incorporates virtually verbatim the

language from . . . the Comprehensive Crime Control

Act of 1984”). Thus, § 924(c)’s “crime of violence” definition grew out of § 16’s definition of the same term.

This history, together with the close linguistic parallels, shows that § 924(c)(3) must be construed—like

§ 16—to require the categorical approach.

C. Congress has acquiesced in the court of

appeals’ long-standing and consistent

application of the categorical approach

under § 924(c).

In the nearly thirty years since this Court created

the categorical approach in Taylor, the overwhelming

majority of circuits have followed the Court’s lead by

applying the categorical approach under § 924(c). See,

e.g., United States v. Taylor, 814 F.3d 340, 378 (6th

Cir. 2016) (observing that the § 924(c) residual clause

“requires the application of a categorical approach”),

cert. denied, 138 S. Ct. 1975 (2018); United States v.

Amparo, 68 F.3d 1222, 1224 (9th Cir. 1995) (applying

“a categorical approach to determining which offenses

are included under section 924(c) as ‘crimes of violence’”); United States v. Moore, 38 F.3d 977, 979 (8th

Cir. 1994) (holding that the text of the § 924(c) residual clause requires a categorical approach), abrogation recognized by United States v. Torres-Villalobos,

487 F.3d 607 (8th Cir. 2007). Prior to Ovalles, the

20

Second and Eleventh Circuits likewise applied the

categorical approach to both the residual and elements clauses of § 924(c) without qualification. See

United States v. Hill, 890 F.3d 51, 55 (2d Cir. 2018)

(explaining that “the categorical approach is “‘not only consistent with both precedent and sound policy’

but [ ] also . . . ‘necessary in view of the language of

[§ 924(c)]’” (first alteration in original)); McGuire, 706

F.3d at 1336–37 (applying the categorical approach to

both clauses).

Congress, meanwhile, has been notably silent on

the courts of appeals’ widespread adoption of the categorical approach, despite a demonstrated willingness over the same period of time to take swift corrective action in the wake of what it views as problematic judicial decisions involving § 924(c).

For example, in 1984, Congress wasted little time

in amending § 924(c)(1) in direct response to Simpson

and Busic. See supra § IV.B. That vigilance was once

again on display in 1998, when Congress approved

the “Bailey Fix Act,” see 144 Cong. Rec. 26608 (1998),

in direct response to a series of decisions in which the

Court wrestled with the meaning of the terms “use”

and “carry” in § 924(c)(1). E.g., Bailey v. United

States, 516 U.S. 137 (1995), superseded by statute as

recognized in Welch v. United States, 136 S. Ct. 1257

(2016). Unhappy with the limiting effect of these decisions, Congress responded by making it an offense

under § 924(c)(1) to “posses[s]” a firearm “in furtherance of” one of the predicate offenses and adding sentencing enhancements for brandishing and discharge.

See Act of Nov. 13, 1998, Pub. L. No. 105-386,

§ 1(a)(1), 112 Stat. 3469, 3469 (1998).

Since that time, Congress has continued to amend

§ 924(c) to expand, refine, or clarify its terms. E.g.,

Protection of Lawful Commerce in Arms Act, Pub. L.

21

No. 109-92, § 6(b), 119 Stat. 2095, 2102 (2005); Act of

Oct. 6, 2006, Pub. L. No. 109-304, § 17(d)(3), 120 Stat.

1485, 1707 (2006). Yet, despite the fact that Congress

has repeatedly and substantially revised § 924(c)—

including in response to the federal courts’ construction of it—not once have lawmakers responded to the

circuits’ continued application of the categorical approach in cases dating back decades.

In light of the circuits’ consistent, long-term, and

nearly universal application of the categorical approach—and Congress’s demonstrated willingness to

overturn interpretations of § 924(c) it disagrees

with—congressional silence on the issue speaks volumes. See Bob Jones Univ. v. United States, 461 U.S.

574, 599 (1983) (finding that “Congress’ awareness of

the denial of tax-exempt status for racially discriminatory schools when enacting other and related legislation make out an unusually strong case of legislative acquiescence.”).

D. The doctrine of constitutional avoidance

does not permit a conduct-based interpretation of § 924(c).

The petition relies heavily on “the principle of constitutional avoidance.” Pet. 20. This argument did not

prevail in Johnson, 135 S. Ct. at 2562, or Dimaya,

138 S. Ct. at 1217, and it cannot do so here.

The avoidance canon “comes into play only when,

after the application of ordinary textual analysis, the

statute is found to be susceptible of more than one

construction; and the canon functions as a means of

choosing between them.” Clark v. Martinez, 543 U.S.

371, 385 (2005). “[A] court relying on that canon still

must interpret the statute, not rewrite it.” Jennings v.

Rodriguez, 138 S. Ct. 830, 836 (2018). Here, Section

924(c)’s text unambiguously requires a categorical

22

approach. The “upshot of all [the] textual evidence”

discussed above is that § 924(c)’s residual clause—

like the clauses in § 16(b) and the ACCA—“has no

‘plausible’ fact-based reading.” Dimaya, 138 S. Ct. at

1218 (plurality opinion); see Johnson, 135 S. Ct. at

2562; supra § IV.A. Thus, “[i]n the absence of more

than one plausible construction, the canon simply

‘has no application.’” Jennings, 138 S. Ct. at 842.

The government’s effort to show otherwise falls flat.

In particular, it would make no sense to use the

phrase “by its nature” to refer to the facts of a defendant’s actual underlying conduct. Contra Pet. 16.

A single discrete criminal act has no “fundamental

quality”—or in Justice Gorsuch’s term, no “inevitable

characteristic”—that “distinguishes [it] from another”

example of the same crime. See supra p. 15. Indeed,

the government’s reading of the statute would be exactly the same if the words “by its nature” were simply omitted: “[A]n offense that is a felony and . . .

that . . . involves a substantial risk . . . .” A construction that would render some of the clause’s language

“inoperative or superfluous” is not a plausible one.

See Hibbs v. Winn, 542 U.S. 88, 101 (2004).

Nor does the government find support in the standalone use of “offense” in the § 924(c) residual clause.

See Pet. 13–14. Even if the word “offense” can, in a

vacuum, refer either to a generic criminal violation or

to a defendant’s specific acts, see id., it cannot do so

here. Clause (c)(3)(B)’s language—“in the course of

committing the offense”—refers back to the generic

“offense that is a felony.” “The use of the definite article means an [offense] specifically provided for” in the

statutory text. See Work v. United States ex rel.

McAlester-Edwards Coal Co., 262 U.S. 200, 208

(1923). The only “offense” previously provided for in

this subsection is the generic felony that applies to

23

both the elements clause and the residual clause.

Thus, the phrase “the offense” in the residual

clause—like “by its nature”—refers back to the generic use of “offense” in § 924(c)(3)’s introductory phrase.

Given all of this, there is no way for the word “offense” to carry a “case-specific meaning” in the residual clause. Pet. 14. The government’s argument could

prevail only if the very same use of the term “offense”

in § 924(c)(3) meant one thing for purposes of the elements clause, but something different for purposes

of the residual clause. But statutory language cannot

change on a case-by-case basis—not even to avoid

constitutional concerns. See Clark, 543 U.S. at 382

(rejecting a “novel interpretive approach . . . which

would render every statute a chameleon, its meaning

subject to change depending on the presence or absence of constitutional concerns in each individual

case”).

Finally, the government’s position would give the

§ 924(c) residual clause a different meaning from the

nearly identical language in § 16, which this Court

has unanimously read to refer to “the elements and

the nature of the offense of conviction, rather than to

the particular facts relating to petitioner’s crime.”

Leocal, 543 U.S. at 7; see also id. at 10. The Court

confirmed the unambiguous nature of this language

last Term in Dimaya, explaining that “the avoidance

canon cannot serve . . . as the interpretive tie breaker” because § 16’s language “demands a categorical

approach.” 138 S. Ct. at 1217 (plurality opinion). So

too in Johnson, which rejected the avoidance argument because “‘[t]he only plausible interpretation’ of

the [ACCA residual clause] . . . requires use of the

categorical approach.” 135 S. Ct. at 2562. Section 924(c)’s materially indistinguishable language

requires the same result. There is no “competing

24

plausible interpretation[ ]” here. See Clark, 543 U.S.

at 381–82.

E. Under the categorical approach, the

§ 924 residual clause suffers from the

same fundamental defects as the ACCA

residual clause and § 16(b).

Properly construed, the § 924(c) residual clause suffers from the same constitutional defects as the ACCA residual clause and § 16(b). All of these residual

clauses “leave[] grave uncertainty about how to estimate the risk posed by a crime,” offering “no reliable

way to choose between . . . competing accounts” of

what the ordinary case of the crime at issue may entail. Johnson, 135 S. Ct. at 2557–58. They further

“leave[] uncertainty about how much risk it takes for

a crime to qualify as a violent felony.” Id. at 2558.

Section 924(c)’s definition of “crime of violence,” then,

“produces more unpredictability and arbitrariness

than the Due Process Clause tolerates.” Id.

In Dimaya, this Court held that § 16(b)’s validity

was “straightforward[ly]” resolved by Johnson. 138

S. Ct. at 1213 (plurality opinion). This was so because

Johnson’s two-part reasoning applied equally to both

residual clauses. Id. at 1216 (plurality opinion). Just

as Dimaya was a straightforward application of

Johnson, this case is a straightforward application of

both Johnson and Dimaya.

Like its corollaries in the ACCA and § 16(b), the

§ 924(c) residual clause requires courts to assess the

risk of the use of physical force by imagining what

the “ordinary case” of a candidate for a “crime of violence” might be, but provides “no guidance on how to

figure out what that ordinary case” constitutes. Dimaya, 138 S. Ct. at 1207–08. A judge is left to her

own imagination in constructing the “ordinary case”;

25

under the § 924(c) residual clause there could therefore be as many “ordinary cases” of the same crime as

there are federal judges, and the statute provides no

way to distinguish among them. See Johnson, 135

S. Ct. at 2558. The text of § 924(c)’s residual clause is

exactly the same as the text of § 16(b) that was invalidated in Dimaya, see 138 S. Ct. at 1223 (plurality

opinion), and is thus equally “speculative” and indeterminate, see id. at 1214.

The uncertainty of the “ordinary case” analysis is

only exacerbated by the statute’s fuzzy “substantial

risk” standard, which provides no meaningful threshold for the quantum of risk needed to constitute a

“crime of violence.” Though the use of an imprecise

qualitative standard such as “substantial risk” is not

in itself unconstitutional, Johnson and Dimaya held

that it becomes unconstitutional when a statute requires that it be applied “to an idealized ordinary

case of the crime.” Dimaya, 138 S. Ct. at 1214 (plurality opinion). The underlying indeterminacy of the

“ordinary case” determination, plus the uncertainty

of what constitutes “substantial risk,” together make

the § 924(c) residual clause so vague as to violate due

process. See id. 1214–15.

In his concurrence in Dimaya, Justice Gorsuch

wrote that § 16(b) “isn’t your everyday ambiguous

statute. It leaves the people to guess about what the

law demands—and leaves judges to make it up. . . .

Will, not judgment, dictates the result.” Dimaya, 138

S. Ct. at 1232 (Gorsuch, J., concurring). The § 924(c)

residual clause—containing the same language as

§ 16(b)—suffers from the same fatal flaws. The decision below was correct. Pet. App. 5a–6a.

26

CONCLUSION

For the foregoing reasons, the petition should be

denied.

Respectfully submitted,

JEFFREY T. GREEN

TOBIAS LOSS-EATON

SIDLEY AUSTIN LLP

1501 K STREET, N.W.

Washington, D.C. 20005

(202) 736-8000

J. JOSEPH MONGARAS*

TIFFANY TALAMENTEZ

UDASHEN & ANTON

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(214) 468-8100

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SARAH O’ROURKE SCHRUP

NORTHWESTERN SUPREME

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BRANDON E. BECK

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PUBLIC DEFENDER

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Counsel for Respondents

November 30, 2018

* Counsel of Record