Petitioners Brief — United States, Petitioner v. Maurice Lamont Davis and Andre Levon Glover
Supreme Court briefFeb 12, 2019
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No. 18-431
In the Supreme Court of the United States
UNITED STATES OF AMERICA, PETITIONER
v.
MAURICE LAMONT DAVIS AND ANDRE LEVON GLOVER
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE UNITED STATES
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
BRIAN A. BENCZKOWSKI
Assistant Attorney General
ERIC J. FEIGIN
ERICA L. ROSS
Assistants to the Solicitor
General
ROBERT A. PARKER
JOHN P. TADDEI
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
Whether the subsection-specific definition of “crime
of violence” in 18 U.S.C. 924(c)(3)(B), which applies only
in the limited context of a federal criminal prosecution
for possessing, using, or carrying a firearm in connection with acts comprising such a crime, is unconstitutionally vague.
(I)
TABLE OF CONTENTS
Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 1
Constitutional and statutory provisions involved ............................1
Statement:
A. Respondents’ offense conduct ................................ 3
B. Respondents’ criminal prosecution........................ 6
C. Respondents’ initial appeal and petitions
for writs of certiorari ............................................... 9
D. The court of appeals’ decision on remand ........... 13
Summary of argument ............................................................... 14
Argument..................................................................................... 18
I. The definition of a “crime of violence” in
18 U.S.C. 924(c)(3)(B) is constitutionally valid ........... 19
A. Section 924(c)(3)(B) is best read to require a
circumstance-specific inquiry by the jury that
is deciding whether a defendant’s conduct
violated Section 924(c) ........................................... 20
1. In the context of a jury trial on a Section
924(c) charge, Section 924(c)(3)(B)’s
“substantial risk” requirement suggests
a jury question ................................................. 20
2. The surrounding text of Section
924(c)(3)(B) supports submitting the
substantial-risk question to the jury ............. 25
B. Congress’s restriction of Section 924(c)(3)(B)
to the jury-trial context removes the practical
and constitutional concerns that support the
categorical approach in the context of
classifying prior convictions ................................. 33
1. Decisions adopting the categorical
approach in the prior-conviction context
have anachronistically influenced the
interpretation of Section 924(c)(3)(B) ........... 34
(III)
IV
Table of Contents—Continued:
Page
2. The adoption of the categorical approach
in the prior-conviction context reflects
practical and constitutional concerns that
are irrelevant to Section 924(c)(3)(B)............ 40
C. The constitutional-avoidance canon requires
that Section 924(c)(3)(B) be construed to
incorporate a circumstance-specific approach ... 44
II. Respondents’ Section 924(c) convictions are valid
because a jury necessarily would have found that
their conduct involved a “substantial risk” of
physical force.................................................................. 53
Conclusion ................................................................................... 55
Appendix — Constitutional and statutory provisions .......... 1a
TABLE OF AUTHORITIES
Cases:
Apprendi v. New Jersey, 530 U.S. 466 (2000) ..................... 43
Begay v. United States, 553 U.S. 137 (2008),
abrogated by Johnson v. United States,
135 S. Ct. 2551 (2015) ......................................................... 45
Bousley v. United States, 523 U.S. 614 (1998) .................... 53
Braverman v. United States, 317 U.S. 49 (1942) ............... 50
Callanan v. United States, 364 U.S. 587 (1961) ................. 50
Chambers v. United States, 555 U.S. 122 (2009),
abrogated by Johnson v. United States,
135 S. Ct. 2551 (2015) ......................................................... 45
Curtis Johnson v. United States, 559 U.S. 133 (2010) ....... 48
Davis v. Michigan Dep’t of the Treasury,
489 U.S. 803 (1989).............................................................. 25
Deal v. United States, 508 U.S. 129 (1993) ........................... 9
DePierre v. United States, 564 U.S. 70 (2011) .................... 22
Descamps v. United States, 570 U.S. 254 (2013) ................ 43
V
Cases—Continued:
Page
Dowling v. United States, 493 U.S. 342 (1990) ................... 31
INS v. St. Cyr, 533 U.S. 289 (2001) ...................................... 45
James v. United States, 550 U.S. 192 (2007),
overruled by Johnson v. United States,
135 S. Ct. 2551 (2015) ............................................. 38, 39, 45
Jennings v. Rodriguez, 138 S. Ct. 830 (2018) ..................... 45
Johnson v. United States, 135 S. Ct. 2551 (2015) ...... passim
Jones v. United States, 526 U.S. 227 (1999) .................. 48, 49
Kawashima v. Holder, 565 U.S. 478 (2012) ........................ 29
Leocal v. Ashcroft, 543 U.S. 1 (2004) ............................. 32, 38
Mathis v. United States, 136 S. Ct. 2243 (2016) ................. 40
Moncrieffe v. Holder, 569 U.S. 184 (2013) .......................... 40
Neder v. United States, 527 U.S. 1 (1999) ........................... 53
Nijhawan v. Holder, 557 U.S. 29
(2009) ....................................................... 16, 20, 26, 27, 29, 41
Ovalles v. United States, 905 F.3d 1231
(11th Cir. 2018) ....................................... 21, 23, 24, 25, 30, 42
Park v. INS, 252 F.3d 1018 (9th Cir. 2001),
overruled by Fernandez-Ruiz v. Gonzales,
466 F.3d 1121 (9th Cir. 2006) ............................................. 39
Roberts v. Sea-Land Servs., Inc., 566 U.S. 93 (2012) ......... 25
Schware v. Board of Bar Exam’rs, 353 U.S. 232
(1957) .................................................................................... 30
Sessions v. Dimaya, 138 S. Ct. 1204 (2018) ............... passim
Shepard v. United States, 544 U.S. 13 (2005) ......... 32, 40, 43
Shuti v. Lynch, 828 F.3d 440 (6th Cir. 2016),
cert. denied, 138 S. Ct. 1977 (2018) ................................... 41
Stokeling v. United States, 139 S. Ct. 544 (2019) ......... 21, 54
Sykes v. United States, 564 U.S. 1 (2011),
overruled by Johnson v. United States,
135 S. Ct. 2551 (2015) ................................................... 38, 45
VI
Cases—Continued:
Page
TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443
(1993) .................................................................................... 31
Taylor v. United States, 495 U.S. 575
(1990) .............................................................29, 37, 38, 40, 41
United States v. Amparo, 68 F.3d 1222
(9th Cir. 1995), cert. denied, 516 U.S. 1164 (1996) ........... 39
United States v. Barrett, 903 F.3d 166 (2d Cir.),
petition for cert. pending, No. 18-6985
(filed Dec. 3, 2018)...................................................... passim
United States v. Benally, 843 F.3d 350
(9th Cir. 2016) ...................................................................... 39
United States v. Bushey, 617 F. Supp. 292
(D. Vt. 1985) ......................................................................... 36
United States v. Credit, 95 F.3d 362 (5th Cir. 1996),
cert. denied, 519 U.S. 1138 (1997) ....................................... 9
United States v. Cruz, 805 F.2d 1464 (11th Cir. 1986),
cert. denied, 481 U.S. 1006, and 482 U.S. 930 (1987) ....... 36
United States v. Diaz, 778 F.2d 86 (2d Cir. 1985) .............. 37
United States v. Douglas, 907 F.3d 1
(1st Cir. 2018), petition for cert. pending,
No. 18-7331 (filed Jan. 7, 2019) ................................. passim
United States v. Eshetu, 898 F.3d 36 (D.C. Cir.),
petition for reh’g pending, No. 15-3020
(D.C. Cir. filed Aug. 31, 2018) ............................................ 50
United States v. Gonzalez-Longoria, 831 F.3d 670
(5th Cir. 2016), vacated, 138 S. Ct. 2668 (2018) .................. 9
United States v. Hayes, 555 U.S. 415 (2009) .... 20, 26, 27, 41
United States v. Higgs, 353 F.3d 281 (4th Cir. 2003),
cert. denied, 543 U.S. 999 (2004) ....................................... 30
United States v. Jenkins, 849 F.3d 390
(7th Cir. 2017), vacated, 138 S. Ct. 1980 (2018) .......... 51, 52
United States v. Kennedy, 133 F.3d 53
(D.C. Cir. 1998) ................................................................... 39
VII
Cases—Continued:
Page
United States v. Mendez, 992 F.2d 1488 (9th Cir.),
cert. denied, 510 U.S. 896 (1993) ....................................... 39
United States v. Moore, 38 F.3d 977 (8th Cir. 1994) .......... 39
United States v. Parkes, 497 F.3d 220 (2d Cir. 2007),
cert. denied, 552 U.S. 1220 (2008) ..................................... 54
United States v. Reid, 517 F.2d 953 (2d Cir. 1975) ............ 54
United States v. Rodriguez, 581 F.3d 775
(8th Cir. 2009), cert. denied, 562 U.S. 981 (2010) ............. 30
United States v. Rodriguez-Moreno, 526 U.S. 275
(1999) .............................................................................. 19, 20
United States v. Salas, 889 F.3d 681 (10th Cir.),
petition for cert. pending, No. 18-428
(filed Oct. 3, 2018) ............................................................... 51
United States v. Simms, No. 15-4640,
2019 WL 311906 (4th Cir. Jan. 24, 2019) .................... 42, 50
United States v. St. Hubert, 883 F.3d 1319
(11th Cir.), cert. denied, 139 S. Ct. 246, vacated,
909 F.3d 335 (11th Cir. 2018) ............................................. 41
United States v. Stephens, 964 F.2d 424
(5th Cir. 1992) ...................................................................... 50
United States v. Taylor, 176 F.3d 331 (6th Cir. 1999) ....... 39
United States v. Thomas, 361 F.3d 653
(D.C. Cir. 2004), vacated, 543 U.S. 1111 (2005) ............... 38
United States v. Williams, 343 F.3d 423 (5th Cir.),
cert. denied, 540 U.S. 1093 (2003) ..................................... 39
United States ex rel. Attorney Gen. of U.S. v.
Delaware & Hudson Co., 213 U.S. 366 (1909) ................. 45
Welch v. United States, 136 S. Ct. 1257 (2016) ................... 52
Yates v. United States, 135 S. Ct. 1074 (2015) .................... 32
VIII
Constitution, statutes, guideline, and rule:
Page
U.S. Const.:
Amend. V .............................................................. 45, 48, 1a
Amend. VI ........................................... 11, 38, 42, 43, 44, 47
Armed Career Criminal Act of 1984,
18 U.S.C. 924(e):
18 U.S.C. 924(e)(2)(B)(i) ........................................... 54, 6a
18 U.S.C. 924(e)(2)(B)(ii) ................................ 8, 16, 38, 6a
Comprehensive Crime Control Act of 1984,
Pub. L. No. 98-473, Tit. II, 98 Stat. 1976 .......................... 28
Ch. X:
Pt. A, § 1001(a), 98 Stat. 2136 ................................... 35
Pt. D, § 1005(a), 98 Stat. 2138 ................................... 35
Firearms Owners’ Protection Act,
Pub. L. No. 99-308, 100 Stat. 449:
§ 104(a)(2)(B), 100 Stat. 457 ........................................... 37
§ 104(a)(2)(C), 100 Stat. 457 ........................................... 37
§ 104(a)(2)(F), 100 Stat. 457 ..................................... 34, 37
§ 108, 100 Stat. 460 .......................................................... 37
First Step Act of 2018, Pub. L. No. 115-391
(Dec. 21, 2018) ....................................................................... 9
§ 403(a)-(b) ......................................................................... 9
Gun Control Act of 1968, Pub. L. No. 90-618,
Tit. I, § 102, 82 Stat. 1224 ................................................... 34
Hobbs Act, 18 U.S.C. 1951(a) ............................. 3, 6, 7, 21, 7a
Immigration and Nationality Act, 8 U.S.C. 1101
et seq. .................................................................................... 10
8 U.S.C. 1101(a)(43)(M) .................................................. 26
8 U.S.C. 1101(a)(43)(M)(i) ............................................... 29
18 U.S.C. 2 ........................................................................ 3, 6, 7
18 U.S.C. 16 ............................................... 16, 35, 36, 37, 39, 1a
18 U.S.C. 16(b) .........................................................passim, 1a
IX
Statutes, guideline, and rule—Continued:
Page
18 U.S.C. 43(a)(1) ................................................................... 28
18 U.S.C. 43(a)(2)(B) ............................................................. 28
18 U.S.C. 111(a) ..................................................................... 28
18 U.S.C. 351(e) ..................................................................... 28
18 U.S.C. 666(b) ..................................................................... 28
18 U.S.C. 670(b)(2)(A) ........................................................... 28
18 U.S.C. 844(i) ................................................................ 31, 51
18 U.S.C. 921(a)(33)(A) ......................................................... 27
18 U.S.C. 922(g)(1) ............................................................. 7, 2a
18 U.S.C. 924 (2012)................................................................. 1
18 U.S.C. 924(a) ....................................................................... 7
18 U.S.C. 924(c) (2012) ............................................passim, 2a
18 U.S.C. 924(c)(1)(A) .........................................2, 7, 20, 21, 2a
18 U.S.C. 924(c)(1)(A)(i) .................................................... 2, 3a
18 U.S.C. 924(c)(1)(A)(ii) ............................................... 2, 8, 3a
18 U.S.C. 924(c)(1)(A)(iii) .................................................. 2, 3a
18 U.S.C. 924(c)(1)(B)(i) ............................................ 3, 7, 8, 3a
18 U.S.C. 924(c)(1)(C)(i) (2012) ................................ 3, 7, 8, 3a
18 U.S.C. 924(c)(1)(C)(ii) (2012) ..................................... 28, 3a
18 U.S.C. 924(c)(2) ........................................................... 21, 4a
18 U.S.C. 924(c)(3) ...................................................passim, 4a
18 U.S.C. 924(c)(3)(A) ..............................................passim, 4a
18 U.S.C. 924(c)(3)(B) ..............................................passim, 4a
18 U.S.C. 929 .......................................................................... 37
18 U.S.C. 1028(b)(1)(D) ......................................................... 28
18 U.S.C. 1035(a) ................................................................... 28
18 U.S.C. 1201 ........................................................................ 52
18 U.S.C. 1201(a) ................................................................... 51
18 U.S.C. 1341 ........................................................................ 28
18 U.S.C. 1343 ........................................................................ 28
18 U.S.C. 1959(a) ................................................................... 52
X
Statutes, guideline, and rule—Continued:
Page
18 U.S.C. 1962(d) ................................................................... 52
18 U.S.C. 2114(a) ................................................................... 52
18 U.S.C. 2118(a) ................................................................... 28
18 U.S.C. 2118(e)(3) ............................................................... 28
18 U.S.C. 2252(a)(1)(A) ......................................................... 29
18 U.S.C. 2423(a) ................................................................... 22
18 U.S.C. 3592(c)(2) ............................................................... 30
18 U.S.C. 3592(c)(4) ............................................................... 30
18 U.S.C. 3592(c)(6) ............................................................... 29
21 U.S.C. 841(a) ..................................................................... 21
21 U.S.C. 858 .......................................................................... 24
Ala. Code § 13A-6-24(a) (LexisNexis 2015)......................... 23
Alaska Stat. § 11.41.250(a) (2016) ........................................ 23
Ariz. Rev. Stat. Ann. § 13-1201(A) (2010) ............................ 23
Ark. Code Ann. § 5-13-205(a)(1) (2013) ............................... 23
Conn. Gen. Stat. Ann. § 53a-111(a)(4) (West 2012) ............ 24
Ind. Code Ann. § 35-43-4-2(a)(2)
(LexisNexis Supp. 2018) .................................................... 24
Iowa Code Ann. § 709.3(1)(a) (West 2016) .......................... 24
Md. Code Ann., Crim. Law § 3-1001(c)
(LexisNexis Supp. 2018) .................................................... 24
Mass. Ann. Laws ch. 265, § 13L (LexisNexis 2010) ........... 24
N.D. Cent. Code § 12.1-17-03 (2012) .................................... 23
N.Y. Penal Law § 120.20 (McKinney 2009) ......................... 23
Utah Code Ann. § 76-5-301(1)(b) (LexisNexis 2017).......... 24
United States Sentencing Guidelines § 4B1.2,
comment. (n.1) (1987) ......................................................... 36
Fed. R. Crim. P. 52(a) ........................................................... 54
XI
Miscellaneous:
Page
H.R. Rep. No. 495, 99th Cong., 2d Sess. (1986) .................. 37
2 Wayne R. LaFave, Substantive Criminal Law
(3d ed. 2018)......................................................................... 50
Oxford Dictionary of English (3d ed. 2010) ....................... 30
S. 756, 115th Cong., 2d Sess. (2018) ....................................... 9
S. Rep. No. 307, 97th Cong., 1st Sess. (1981) ...................... 35
S. Rep. No. 225, 98th Cong., 1st Sess. (1983)................ 35, 36
Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts (2012) ......................... 47
U.S. Courts, Table D-2—U.S. District Courts—
Criminal Statistical Tables For The Federal
Judiciary (June 30, 2018), http://www.uscourts.
gov/statistics/table/d-2/statistical-tables-federaljudiciary/2018/06/30 ............................................................ 49
Webster’s Third New International Dictionary
(2002) .................................................................................... 30
In the Supreme Court of the United States
No. 18-431
UNITED STATES OF AMERICA, PETITIONER
v.
MAURICE LAMONT DAVIS AND ANDRE LEVON GLOVER
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE UNITED STATES
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-9a) is
reported at 903 F.3d 483. A prior opinion of the court
of appeals (Pet. App. 10a-17a) is not published in the
Federal Reporter but is reprinted at 677 Fed. Appx. 933.
JURISDICTION
The judgment of the court of appeals was entered on
September 7, 2018. The petition for a writ of certiorari
was filed on October 3, 2018. The petition for a writ of
certiorari was granted on January 4, 2019. The jurisdiction of this Court rests on 28 U.S.C. 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
18 U.S.C. 924 (2012) provides in pertinent part:
* * * * *
(1)
2
(c)(1)(A) 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.
* * * * *
(3) 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.
3
* * * * *
Other pertinent constitutional and statutory provisions are reproduced in the appendix to this brief. See
App., infra, 1a-8a.
STATEMENT
Following a jury trial in the United States District
Court for the Northern District of Texas, respondents
Maurice Davis and Andre Glover were each convicted
on one count of conspiracy to commit robbery, in violation
of the Hobbs Act, 18 U.S.C. 1951(a); multiple counts of
Hobbs Act robbery, in violation of 18 U.S.C. 1951(a) and
2; and two counts of brandishing a short-barreled shotgun during a crime of violence, in violation of 18 U.S.C.
924(c)(1)(B)(i), 2, and 18 U.S.C. 924(c)(1)(C)(i) (2012).
C.A. ROA (ROA) 269; Davis Am. Judgment 1. The district court sentenced Glover to 498 months of imprisonment, to be followed by two years of supervised release,
and it sentenced Davis to 608 months of imprisonment,
to be followed by two years of supervised release. ROA
270; Davis Am. Judgment 2. The court of appeals affirmed. Pet. App. 10a-17a. This Court granted respondents’ petitions for writs of certiorari, vacated the judgment of the court of appeals, and remanded for further
consideration in light of Sessions v. Dimaya, 138 S. Ct.
1204 (2018). Pet. App. 1a-2a. On remand, the court of
appeals vacated one Section 924(c) conviction as to each
respondent and remanded the case to the district court.
Id. at 1a-9a.
A. Respondents’ Offense Conduct
1. Respondents conspired to commit a string of
armed robberies of convenience stores in and around
Dallas, Texas. See Gov’t C.A. Br. 2-10 (summarizing
trial evidence); Gov’t Second Supp. C.A. Letter Br. 24
4
(same). Each robbery followed a similar pattern: two
people—usually wearing red or green bandanas over
their faces—would arrive at the targeted store in a gold
SUV with no license plates; one would point a shortbarreled shotgun at an employee and issue orders; and
the robbers would take cigarettes and demand money.
See ibid.
The first robbery occurred at about 3 a.m. on June
16, 2014, at a convenience store in Lancaster, Texas.
ROA 645-654. One of the robbers grabbed the store’s
assistant manager, Andrea Douglas, from behind, put a
short-barreled shotgun to her side, and asked if she had
a “money bag.” ROA 654; see ROA 644-645, 653. When
Douglas explained that she could not open the store’s
safe, the robber ordered her to take him to a storage
room and forced her to lie face down on the floor. ROA
654, 657. Douglas “was doing a lot of crying,” and the
robber told her that “he was going to hurt [her] if [she]
didn’t be quiet.” ROA 657. The second robber then entered the storage room, and both robbers filled bags
with cartons of cigarettes. ROA 656-657, 660. When
they were done, one of the robbers told Douglas to wait
30 seconds before calling the police or he would kill her.
ROA 662.
The second robbery occurred at about 2:30 a.m. on
June 21, 2014, at a convenience store in Dallas. ROA
686-687, 690-691, 699. Two robbers drove up in the gold
SUV and accosted Tomitha Hardge, a store employee
who was standing outside. ROA 685-686, 690-691; Gov’t
C.A. Br. 4. One of the robbers pointed a short-barreled
shotgun in Hardge’s face; when she screamed, he ordered
her to be quiet. ROA 691-692; Gov’t C.A. Br. 4. The
robber then forced Hardge to let him into the store’s
storage room, where he filled a gray plastic tub with
5
cartons of cigarettes. ROA 692-695. After loading the
tub into the SUV, the robber instructed Hardge to open
the store’s safe. ROA 696. Hardge replied that she did
not have access to the safe, at which point a passenger
in the SUV—whom Hardge did not see but believed to
be a woman—said, “Come on. Let’s go.” Ibid. The robber holding the shotgun then turned to Hardge and
said, “Bitch, you better not snitch,” before driving away.
ROA 697.
The third robbery occurred on June 22, 2014. ROA
433. At about 7 a.m., a gold SUV pulled up to a convenience store in Mansfield, Texas. ROA 433-438; Gov’t
C.A. Br. 5. One of the robbers got out, pointed a shortbarreled shotgun at an employee, Olivia Gaytan, and ordered her to go into the store’s storage room. ROA 432433, 438-439. A second robber followed Gaytan into the
storage room and filled a gray plastic tub with cartons
of cigarettes. ROA 439-442. One of the robbers then
demanded that Gaytan open the safe. ROA 442. The
robbers left after Gaytan informed them that the safe
had a time lock and could not be opened for another
hour. ROA 442, 444.
The fourth robbery occurred about 30 minutes later,
when the same robbers did basically the same thing at
another convenience store in Midlothian, Texas. ROA
462-463, 465, 722; Gov’t C.A. Br. 6. One of the robbers
entered the store and pointed a short-barreled shotgun
at an employee, Kathy Oakley. ROA 462-463, 465, 469.
Oakley begged the robber not to hurt her, and the robber said he would not do so if Oakley complied with his
instructions. ROA 469. As the first robber held Oakley
at gunpoint, the second robber entered the store with a
gray plastic tub and filled it with cartons of cigarettes.
ROA 470-471, 474. The robbers also stole a bank deposit
6
bag and money from an open safe. ROA 473-474; see
ROA 465-466.
2. Shortly after the fourth robbery, law-enforcement
agencies broadcast a lookout describing the robbers
and their gold SUV. ROA 501-505. Officers spotted respondents, who matched the robbers’ descriptions, in a
gold SUV, and attempted to stop them at a McDonald’s
drive-through. ROA 504-507. When an officer, with his
weapon drawn, ordered respondents to show their hands,
respondents fled. ROA 507. A chase ensued, with speeds
reaching 85 to 95 miles per hour in “[e]xtremely dangerous and wet” conditions. ROA 541; see ROA 509-510.
After about two miles, respondents crashed the SUV
into a concrete ditch and fled on foot, leaving behind a
trail of cash. ROA 510-513.
Officers quickly caught Glover, ROA 516-518, and
later discovered Davis hiding in bushes and sitting atop
a pile of cash, ROA 518-519. Inside the SUV, officers
found numerous cartons of cigarettes, a gray plastic
tub, a loaded short-barreled shotgun, several shotgun
shells, the bank deposit bag with cash from the fourth
robbery, and articles of clothing that matched items
worn by the robbers. ROA 571, 576-579, 585-590, 592599. Davis later admitted his involvement in the third
and fourth robberies but claimed that “[an]other person” had carried the gun. ROA 634; see ROA 630, 633636. Glover declined to make any statements about the
robberies. ROA 636.
B. Respondents’ Criminal Prosecution
A federal grand jury indicted respondents on one
count of conspiracy to commit robbery in violation of
the Hobbs Act, 18 U.S.C. 1951(a); three counts of Hobbs
Act robbery, in violation of 18 U.S.C. 1951(a) and 2; and
two counts of brandishing a short-barreled shotgun
7
during a crime of violence, in violation of 18 U.S.C.
924(c)(1)(B)(i), 2, and 18 U.S.C. 924(c)(1)(C)(i) (2012).
ROA 13-18, 20-22. Glover was charged with an additional
count of Hobbs Act robbery, in violation of 18 U.S.C.
1951(a) and 2, and Davis was charged with possession of
a firearm by a felon, in violation of 18 U.S.C. 922(g)(1) and
924(a)(2). ROA 19, 23.
Before trial, respondents moved to dismiss the Section 924(c) counts. See ROA 87-95. Section 924(c) makes
it a crime to “use[] or carr[y]” a firearm “during and in
relation to,” or to “possess[]” a firearm “in furtherance
of,” any federal “crime of violence or drug trafficking
crime.” 18 U.S.C. 924(c)(1)(A). The statute contains its
own specific definition of “crime of violence,” which is applicable only “[f ]or purposes of this subsection.” 18 U.S.C.
924(c)(3). The definition covers any federal “offense that
is a felony” and satisfies the criteria set forth in either
18 U.S.C. 924(c)(3)(A) or (B). 18 U.S.C. 924(c)(3). An
offense satisfies Section 924(c)(3)(A) if it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”
18 U.S.C. 924(c)(3)(A). Section 924(c)(3)(B) alternatively
includes any offense “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).
Respondents contended that the underlying offenses
identified in their Section 924(c) charges—their Hobbs
Act robberies and their conspiracy to commit Hobbs Act
robbery, ROA 17, 22—did not qualify as crimes of violence, see ROA 87-94. They took the view that those
offenses did not satisfy Section 924(c)(3)(A) and that
Section 924(c)(3)(B) was unconstitutionally vague in light
of this Court’s decision in Johnson v. United States,
8
135 S. Ct. 2551 (2015). See ROA 87-94. In Johnson, the
Court had invalidated on vagueness grounds the residual clause in the sentence-enhancement provisions of the
Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C.
924(e)(2)(B)(ii), which classifies a prior conviction as a
“violent felony” if it was for a crime that “otherwise involves conduct that presents a serious potential risk of
physical injury to another.” See 135 S. Ct. at 2555, 2560.
The district court denied respondents’ motion, Pet.
App. 19a, 22a, and the case proceeded to trial. The jury
found Glover guilty on all counts and Davis guilty on all
counts except one Hobbs Act robbery count. ROA 13681370. For the Section 924(c) charges, the jury made
special findings that respondents brandished (or aided
and abetted the brandishing of ) a short-barreled shotgun during each crime of violence. Ibid.; see 18 U.S.C.
924(c)(1)(A)(ii) and (B)(i) (enhanced penalties for brandishing a firearm and possessing a short-barreled shotgun). The court sentenced Glover to concurrent terms of
78 months of imprisonment on the Hobbs Act counts, a
consecutive term of 120 months on the first Section
924(c) count, and a consecutive term of 300 months on the
second Section 924(c) count, for a total term of 498 months
of imprisonment. ROA 270. The court sentenced Davis
to concurrent terms of 188 months of imprisonment on
the Hobbs Act counts, a concurrent term of 180 months
on the felon-in-possession count, a consecutive term of
120 months on the first Section 924(c) count, and a
consecutive term of 300 months on the second Section
924(c) count, for a total term of 608 months of imprisonment. Davis Am. Judgment 2. 1
At the time of respondents’ sentencing, Section 924(c) provided
for enhanced minimum penalties for defendants convicted of multiple violations in a single proceeding. See 18 U.S.C. 924(c)(1)(C)(i)
1
9
C. Respondents’ Initial Appeal And Petitions For Writs Of
Certiorari
1. The court of appeals affirmed respondents’ convictions and sentences. Pet. App. 10a-17a. The court
rejected respondents’ renewed constitutional challenge
to Section 924(c)(3)(B). Id. at 12a-14a. The court relied
on a recent en banc decision holding that the definition
of a “crime of violence” in 18 U.S.C. 16(b), which is linguistically nearly identical to Section 924(c)(3)(B), was
“not unconstitutionally vague in light of Johnson.” Pet.
App. 13a (citing United States v. Gonzalez-Longoria,
831 F.3d 670, 677 (5th Cir. 2016) (en banc), vacated,
138 S. Ct. 2668 (2018)).
The court of appeals also rejected Glover’s alternative
contention that “the jury should decide what constitutes
a crime of violence.” Pet. App. 14a n.4; see Glover C.A.
Br. 18, 25-26. The court observed that circuit precedent
treated the crime-of-violence determination as “a question of law reserved for the judge.” Pet. App. 14a n.4
(citing United States v. Credit, 95 F.3d 362, 364 (5th Cir.
1996), cert. denied, 519 U.S. 1138 (1997)). The government’s appellate brief, in addition to noting that Glover’s
proposed construction was foreclosed by circuit precedent, had also explained that any error in failing to seek
a jury finding would have been harmless, because “the
evidence was overwhelming” that respondents’ crimes
were “committed * * * in a way that involved the use
(2012); Deal v. United States, 508 U.S. 129, 132-137 (1993). In the
First Step Act of 2018, Pub. L. No. 115-391 (enacted Dec. 21, 2018;
see S. 756, 115th Cong., 2d Sess. (2018)), Congress limited the applicability of the enhanced minimum penalties, in cases where a sentence “ha[d] not been imposed” before the Act’s enactment, to violations of Section 924(c) that “occur[] after a prior conviction under
[Section 924(c)] has become final.” § 403(a)-(b).
10
or threatened use of force or posed a substantial risk
that force would be used.” Gov’t C.A. Br. 28-29. The
government observed, for example, that the trial evidence
had established that Glover “thrice put a sawed-off
shotgun to a woman—and his accomplice did so once—
to demand her submission to his theft of cigarettes.” Id.
at 27.
2. Respondents petitioned for writs of certiorari,
seeking review of whether the definition of a “crime of
violence” in Section 924(c)(3)(B) is unconstitutionally
vague. See Pet. App. 1a. While respondents’ petitions
were pending, this Court decided Sessions v. Dimaya,
supra, which held that the definition of a “crime of violence” in 18 U.S.C. 16(b), as incorporated into the removability provisions of the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., is unconstitutionally
vague. See 138 S. Ct. at 1210, 1213.
Dimaya involved the application of Section 16(b) to
classify an alien’s prior state conviction as a “crime of
violence” for purposes of removing him from the United
States. See 138 S. Ct. at 1211-1212. Section 16(b), which
is linguistically nearly identical to Section 924(c)(3)(B),
defines a “crime of violence” to include “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.” 18 U.S.C. 16(b). But unlike
Section 924(c)(3)(B)—and like the ACCA’s residual clause
at issue in Johnson—Section 16(b) applies in circumstances that include the classification of prior convictions (as in Dimaya itself ). See Dimaya, 138 S. Ct. at
1212-1213 (plurality opinion).
The Court explained in Dimaya that Section 16(b),
as incorporated into the INA, suffered from “the same
11
two features,” “combined in the same constitutionally
problematic way,” that had led the Court to find the
ACCA’s residual clause unconstitutionally vague in Johnson. Dimaya, 138 S. Ct. at 1213. The first feature was
a “categorical approach” to the crime-of-violence inquiry, under which a court would seek “to identify a
crime’s ‘ordinary case’ ” and to assess whether the crime,
in that idealized “ordinary case,” poses a substantial risk
that physical force will be used. Id. at 1211, 1215. The
second feature was “uncertainty about the level of risk
that makes a crime ‘violent.’ ” Id. at 1215. The Court
emphasized in Dimaya, as it had in Johnson, that it
“ ‘d[id] not doubt’ the constitutionality of applying” a
“ ‘substantial risk’ ” standard like Section 16(b)’s “ ‘to realworld conduct,’ ” rather than to “ ‘a judge-imagined abstraction.’ ” Id. at 1215-1216 (quoting Johnson, 135 S. Ct.
at 2558, 2561).
Although the Court’s holding in Dimaya was premised on the applicability of the categorical approach,
only a plurality of Justices concluded that Section 16(b)
necessarily requires such an approach. See 138 S. Ct.
at 1216-1218. The plurality recognized the Court’s “ ‘plain
duty,’ under the constitutional avoidance canon, to adopt
any reasonable construction of a statute that escapes
constitutional problems.” Id. at 1216 (citations omitted).
But it concluded that, in the context of Section 16(b), the
canon did not counsel a circumstance-specific approach
that would examine “the risk posed by a particular defendant’s particular conduct,” because such an approach
“would merely ping-pong us from one constitutional issue to another.” Id. at 1216-1217. The plurality explained that the categorical approach was itself designed in part to avoid Sixth Amendment concerns that
would arise from judicial factfinding about the details of
12
prior convictions in certain sentencing contexts to which
Section 16(b) applies. Ibid. The plurality also took the
view that, “[i]n any event,” Section 16(b)’s text is “[b]est
read” to “demand[] a categorical approach.” Ibid.
Justice Gorsuch, who concurred in part and concurred
in the judgment, authored a separate opinion describing
“some limits on today’s holding.” Dimaya, 138 S. Ct. at
1232. Justice Gorsuch explained that he had “proceeded
on the premise” that the INA, “as it incorporates” Section 16(b), employs a categorical approach because “no
party” had argued against that approach; precedent
“seemingly require[d]” it; and the government had “repeatedly” acknowledged the propriety of such an approach. Ibid. Justice Gorsuch stated, however, that he
“remain[ed] open to different arguments” about the
Court’s “precedent and the proper reading of language”
like Section 16(b)’s in a future case. Id. at 1233.
In dissent, Justice Thomas, joined by Justices
Kennedy and Alito, would have eschewed a categorical
approach to Section 16(b) in favor of a focus on the underlying, real-world conduct of the alien’s prior offense.
Dimaya, 138 S. Ct. at 1254-1259. Justice Thomas explained that the underlying-conduct approach was both
the “better” reading of Section 16(b), id. at 1255, and
consistent with the constitutional-avoidance canon, id.
at 1257; see id. at 1234-1241 (Roberts, C.J., dissenting)
(not addressing whether Section 16(b) requires a categorical approach).
3. This Court subsequently granted respondents’
petitions for writs of certiorari, vacated the judgment of
the court of appeals in respondents’ case, and remanded
to the court of appeals for further consideration in light
of Dimaya. See 138 S. Ct. 1979, 1979; 138 S. Ct. 1979,
1979-1980.
13
D. The Court Of Appeals’ Decision On Remand
On remand, the government acknowledged that it
had previously argued, consistent with circuit precedent,
that Section 924(c)(3)(B) requires an ordinary-case categorical approach of the sort ascribed to Section 16(b)
in Dimaya. Gov’t Second Supp. C.A. Letter Br. 6. The
government observed, however, that such an interpretation “raise[d] serious constitutional questions” in light
of Dimaya, ibid., and it accordingly urged the court of
appeals to avoid those questions by construing Section
924(c)(3)(B) to instead require a circumstance-specific
approach, id. at 6-7. Under that construction, “the classification of an offense as a ‘crime of violence’ under”
Section 924(c)(3)(B) would “be based on the defendant’s
actual conduct” underlying the Section 924(c) prosecution. Id. at 6. The government pointed out that Section
924(c)(3)(B), unlike Section 16(b) or the ACCA’s residual clause, is never applied to classify prior convictions
and is instead confined only to the conduct for which a
defendant is currently being prosecuted. Id. at 10-11.
And the government explained that the failure to submit the substantial-risk inquiry to the jury was harmless
because respondents’ conduct—“which involved the
planned and coordinated use of a sawed-off shotgun to
immobilize and threaten employees”—“undoubtedly involved a substantial risk that force may be used during
commission of the conspiracy” to commit Hobbs Act
robbery. Id. at 23-24.
The court of appeals, however, declined to construe
Section 924(c)(3)(B) in a manner that would avoid the
constitutional difficulties identified in Dimaya and instead struck down Section 924(c)(3)(B) as impermissibly vague. Pet. App. 5a. The court adhered to circuit
14
precedent applying an ordinary-case categorical approach to Section 924(c)(3)(B) and concluded that the provision, so construed, is unconstitutional in light of Dimaya. Id. at 4a-5a. Because the court determined that
the offense underlying one of the Section 924(c) counts of
conviction for each respondent—conspiracy to commit
Hobbs Act robbery—could qualify as a “crime of violence”
only under Section 924(c)(3)(B), it vacated respondents’
convictions on those counts and remanded to the district
court with instructions to excise the sentences imposed as
a result of those convictions. Id. at 4a, 6a. Judge Higginbotham concurred in the vacatur of the convictions, but
wrote separately to object to the court’s failure to remand
for a full resentencing. Id. at 7a-9a.
SUMMARY OF ARGUMENT
The court of appeals erred in interpreting 18 U.S.C.
924(c)(3)(B) in a manner that rendered it unconstitutionally vague under Sessions v. Dimaya, 138 S. Ct.
1204 (2018). Section 924(c)(3)(B)’s subsection-specific
definition of “crime of violence” applies only to the conduct for which the defendant is currently being prosecuted, not to any conduct for which the defendant may
have been convicted in the past. The best construction of
the provision in that context requires a circumstancespecific determination about whether that actual offense conduct—not the conduct of a hypothetical defendant in an “ordinary case”—satisfies the substantialrisk test in 18 U.S.C. 924(c)(3)(B). That construction,
moreover, is confirmed by the canon of constitutional
avoidance because the ordinary-case categorical approach would raise serious constitutional questions under this Court’s decisions in Dimaya and Johnson v.
United States, 135 S. Ct. 2551, 2561 (2015). And because
no serious question exists that a properly instructed jury
15
would have found that respondents’ armed-robbery conspiracy “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,”
18 U.S.C. 924(c)(3)(B), their vacated convictions should
be reinstated.
I. This Court’s decisions in Dimaya and Johnson
“d[id] not doubt” that a provision requiring a jury finding beyond a reasonable doubt about the “substantial
risk” created by a defendant’s own “real-world conduct,”
would be fully constitutional. Dimaya, 138 S. Ct. at 1215
(quoting Johnson, 135 S. Ct. at 2561). As the government and several courts of appeals have recognized after Dimaya, Section 924(c)(3)(B) is best construed to
require precisely that sort of commonplace circumstancespecific approach.
In a Section 924(c) prosecution, the jury already must
determine (or the defendant must admit through a plea)
that the defendant engaged in conduct that meets the
elements of a discrete federal felony; that he did so while
using, possessing, or carrying a firearm; and that the
firearm had the requisite connection to the crime. In
that context, the provision is best read to require the
jury also to determine (or the defendant also to admit)
that the defendant’s conduct presented a “substantial
risk” of physical force. 18 U.S.C. 924(c)(3)(B). That is
exactly the type of fact-specific determination that juries are regularly called upon to make. A categorical
approach that instead substitutes a judicial conjecture
about the risk presented by the “judge-imagined abstraction” of “an idealized ordinary case of the crime,” Dimaya, 138 S. Ct. at 1216 (citation omitted), would incongruously wrest authority away from the jury.
16
In the context of describing current conduct, rather
than a prior conviction, the surrounding text of Section
924(c)(3)(B) further confirms a circumstance-specific approach, rather than a categorical one. Section 924(c)(3)(B)
looks to the “course of committing the offense”—i.e.,
the same conduct that the government already must
prove to the jury in order to satisfy the other requirements of the statute. 18 U.S.C. 924(c)(3)(B). The provision uses the words “offense,” “felony,” and “involves,”
each of which this Court already has recognized to be
consistent with a circumstance-specific inquiry. See
Nijhawan v. Holder, 557 U.S. 29, 33-40 (2009). And the
“nature” of the offense that the defendant has committed in a particular case is not an abstraction, but instead
the conduct itself, stripped of any extraneous considerations such as the defendant’s own subjective predilections toward or away from violence.
Notwithstanding the best contextual reading of the
text and Congress’s intentional decoupling of Section
924(c)(3)’s subsection-specific definition of a “crime of
violence” from the more general one in 18 U.S.C. 16,
courts and the government have in the past treated those
definitions congruently for purposes of applying this
Court’s categorical-approach jurisprudence. But any
assumption that Congress intended Section 924(c)(3)(B)
to be interpreted the same way as the similarly worded
provisions in Section 16(b) or the ACCA’s residual clause,
18 U.S.C. 924(e)(2)(B)(ii), cannot withstand this Court’s
identification of the ordinary-case categorical approach
as a fatal defect in those other provisions. The categorical approach developed in large part due to concerns
specific to the context of classifying prior convictions—
an issue with Section 16(b) and the ACCA’s residual
17
clause, but not with Section 924(c)(3)(B). Because Section 924(c)(3)(B) is limited to conduct already before a
jury, a categorical approach is not necessary to avoid either the practical difficulties of attempting to determine
the precise conduct underlying a long-ago conviction,
nor the constitutional concerns that might arise from a
sentencing court making factual determinations about
such past conduct. Stripped of those concerns, therefore, the Court should adopt a reading of Section
924(c)(3)(B) that best comports with its text and purpose.
Indeed, were there any doubt on this score, it would
be resolved by the longstanding rule that courts should
adopt an available interpretation of a statute that avoids
raising serious constitutional concerns. Whereas a
circumstance-specific approach in the prior conviction
context raised concerns about the denial of a defendant’s jury-trial rights, a circumstance-specific approach
to Section 924(c)(3)(B) actually increases the jury’s role,
while also avoiding the vagueness concerns this Court
identified in Johnson and Dimaya. And it furthers
the separation-of-powers rationale that animates the
constitutional-avoidance canon, by respecting Congress’s
evident intent to punish offenders who employ firearms
during and in relation to violent crimes. Interpreting
Section 924(c)(3)(B) in a manner that renders it unconstitutional would forestall current and future prosecutions
of clearly dangerous criminals under Section 924(c)(3)
and allow already-incarcerated ones back on the streets.
II. Applying governing circuit precedent, the district court in this case concluded that respondents’ conspiracy to commit Hobbs Act robbery categorically qualified as a crime of violence under Section 924(c)(3)(B).
Although the court therefore did not instruct the jury
18
to determine whether the conduct involved in respondents’ own conspiracy “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,” 18 U.S.C. 924(c)(3)(B), that error
was harmless beyond a reasonable doubt. The course
of respondents’ conspiracy involved the planning and
execution of a string of violent armed robberies in which
respondents ambushed store clerks, held them at gunpoint, and threatened to injure them if they did not comply with respondents’ demands for cigarettes and cash.
Under the constitutionally valid circumstance-specific
approach to Section 924(c)(3)(B), a jury would unquestionably have found that respondents’ conduct satisfied
the statute. At a minimum, a new trial before a properly
instructed jury is warranted.
ARGUMENT
Respondents were validly convicted under 18 U.S.C.
924(c) (2012) for brandishing a sawed-off shotgun in
furtherance of their conspiracy to rob a string of
convenience stores. This Court has “not doubt[ed] the
constitutionality of laws that call for the application of a
qualitative standard such as ‘substantial risk’ to realworld conduct.” Sessions v. Dimaya, 138 S. Ct. 1204, 1214
(2018) (quoting Johnson v. United States, 135 S. Ct. 2551,
2561 (2015)). Section 924(c)(3)(B)’s definition of “crime
of violence” calls for just such an application of just such
a standard. 18 U.S.C. 924(c)(3)(B). The jury that is
making findings about a defendant’s firearm-connected
offense conduct can also make a finding about whether
the 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.” Ibid. That circumstance-specific approach is
19
supported not only by the statutory language, as used
in the limited context of describing the acts for which
the defendant currently is being prosecuted, but also by
courts’ duty to avoid reading in the ordinary-case categorical approach that doomed the provisions at issue in
Johnson and Dimaya. And it comports with Congress’s
evident intent to punish violent offenders like respondents, whose conspiracy to serially terrorize conveniencestore clerks to obtain cigarettes and money was unquestionably a “crime of violence.”
I. THE DEFINITION OF A “CRIME OF VIOLENCE” IN
18 U.S.C. 924(c)(3)(B) IS CONSTITUTIONALLY VALID
To convict a defendant of violating Section 924(c), the
jury must determine (or the defendant must admit in a
plea) that he carried, used, or possessed a firearm; that he
“committed all the acts necessary to be subject to punishment for” a separately proscribed “crime of violence”;
and that the carrying, use, or possession of the firearm
was sufficiently connected to those acts. United States
v. Rodriguez-Moreno, 526 U.S. 275, 280 (1999). In making those determinations, the jury is well-positioned also
to determine whether those acts constituted a “crime of
violence” under Section 924(c)(3)(B). Although courts
and the government generally have not historically
interpreted Section 924(c)(3)(B) to call for such a
circumstance-specific inquiry, this Court’s decision in
Dimaya—which makes clear that the prior approach
would render the provision unconstitutional—has invited
a closer examination of the issue. As several courts of
appeals have recognized, the language of Section
924(c)(3)(B), in the context of a criminal statute that
contemplates a jury’s consideration of the relevant offense conduct, readily embraces a circumstance-specific
20
approach. And the canon of constitutional avoidance
confirms the propriety of that approach.
A. Section 924(c)(3)(B) Is Best Read To Require A
Circumstance-Specific Inquiry By The Jury That Is
Deciding Whether A Defendant’s Conduct Violated
Section 924(c)
Congress has frequently enacted provisions that require a “ ‘circumstance-specific’ ” determination, based
on “the facts and circumstances,” of whether “the specific way” in which a crime was committed “on a specific
occasion” meets a statutory definition. Nijhawan v.
Holder, 557 U.S. 29, 34 (2009) (construing provision in
that manner); see, e.g., id. at 38-39 (providing other examples); United States v. Hayes, 555 U.S. 415, 426 (2009)
(construing statute in same way). Section 924(c)(3)(B)
fits comfortably within that mold.
1. In the context of a jury trial on a Section 924(c)
charge, Section 924(c)(3)(B)’s “substantial risk”
requirement suggests a jury question
A prosecution under Section 924(c) necessarily focuses on what the defendant actually did. The jury must
find conduct that meets the elements of a separate federal felony—e.g., kidnapping—whether or not the defendant also is prosecuted for that underlying crime.
See Rodriguez-Moreno, 526 U.S. at 280. And the jury
must inquire into the specifics of the defendant’s acts in
order to make the further finding that the defendant
“use[d] or carrie[d]” a firearm “during and in relation
to,” or “possess[ed]” a firearm “in furtherance of,” his
otherwise-unlawful conduct. 18 U.S.C. 924(c)(1)(A). All
of those findings depend “exclusively” on the evidence
21
before the jury about the circumstances of the defendant’s own case. Ovalles v. United States, 905 F.3d 1231,
1248 (11th Cir. 2018) (en banc).
When those findings are made, the only remaining
requirement for conviction under Section 924(c) is that
the crime connected to the firearm be a “drug trafficking
crime” or a “crime of violence.” 18 U.S.C. 924(c)(1)(A).
For an alleged “drug trafficking crime,” no further jury
finding is required. Because a “drug trafficking crime”
is defined to include “any felony punishable” under certain federal laws, see 18 U.S.C. 924(c)(2), the jury’s finding of guilt following instruction on the elements of,
say, methamphetamine manufacturing, in violation of
21 U.S.C. 841(a), will automatically show that the defendant committed such a crime. The same is true for
the first definition of “crime of violence” in 18 U.S.C.
924(c)(3)(A), which includes any “offense that is a felony” and “has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another.” Where a defendant is charged
with, say, using a firearm during and in relation to a
robbery, and the jury instructions therefore include the
elements of robbery under the Hobbs Act, in violation
of 18 U.S.C. 1951(a), a guilty verdict necessarily reflects
its finding of a force-related element, without any further inquiry into the specifics. See Stokeling v. United
States, 139 S. Ct. 544, 555 (2019) (finding common-law
robbery categorically satisfies identically worded clause
of the ACCA).
The alternative definition of “crime of violence” in
Section 924(c)(3)(B), however, does not turn on where
in the federal code the conduct is proscribed (as with
“drug trafficking crime”) or what “element[s]” that proscription “has” (as with Section 924(c)(3)(A)’s “crime of
22
violence” definition). Instead, it includes any felony offense “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). Its position within the statutory
structure dictates that it must include conduct that
is not otherwise covered by Section 924(c)(3)(A). Cf.
DePierre v. United States, 564 U.S. 70, 83 (2011) (describing principle that different provisions of a statute
are presumed to have different meanings). But following this Court’s decision in Dimaya, courts have diverged
about how to determine whether a defendant’s conduct
is a “crime of violence” under Section 924(c)(3)(B).
The court below adhered to circuit precedent interpreting the definition to require a form of “categorical”
approach, under which a judge, without regard to the
jury’s findings about a defendant’s own conduct, imagines the “ordinary” conduct that would meet the elements
on which the jury was instructed. See Pet. App. 4a-5a.
The judge then makes an assessment about whether
that hypothetical ordinary case carries the sort of substantial risk that Section 924(c)(3)(B) requires. Id. at
5a. Under that approach, a particular Section 924(c) defendant’s own conduct is irrelevant. If, for example, a
judge concludes that the “ordinary” case of transporting a minor for illegal sexual activity, in violation of
18 U.S.C. 2423(a), is nonviolent, then it does not matter
whether a particular defendant beat and threatened a
minor in order to coerce her acquiescence. Notwithstanding that the ordinary-case categorical approach completely disregards the defendant’s own conduct, and the
jury’s otherwise exclusive role in determining it, the
courts and the government have—with some difficulty—
applied that approach for many years.
23
As several courts of appeals and the government
have now recognized, however, that approach not only
renders the statute unconstitutionally vague in light of
Dimaya, see pp. 44-48, infra, but is incongruous with
the conduct-based focus of Section 924(c) and the traditional domain of a jury at a criminal trial. See United
States v. Douglas, 907 F.3d 1, 13-17 (1st Cir. 2018),
petition for cert. pending, No. 18-7331 (filed Jan. 7,
2019); Ovalles, 905 F.3d at 1248-1250; United States v.
Barrett, 903 F.3d 166, 181-184 (2d Cir.), petition for
cert. pending, No. 18-6985 (filed Dec. 3, 2018). The
substantial-risk determination is one that a jury is wellpositioned to make (or find not to be supported) on the
facts before it. And the customary way to apply a
“qualitative standard such as ‘substantial risk’ ” is to do
so by reference “to real-world conduct,” not to a hypothetical, judicially imagined “ordinary case” of the crime.
Johnson, 135 S. Ct. at 2561. As this Court has recognized, “dozens of federal and state criminal laws use
terms like ‘substantial risk,’ ‘grave risk,’ and ‘unreasonable risk,’ ” and “almost all” of them “require gauging the riskiness of conduct in which an individual defendant engages on a particular occasion.” Ibid.
For example, a typical reckless-endangerment or
criminal-recklessness offense is defined as “recklessly
engag[ing] in conduct which creates a substantial risk
of serious physical injury to another person.” N.Y.
Penal Law § 120.20 (McKinney 2009); see, e.g., Ala.
Code § 13A-6-24(a) (LexisNexis 2015); Alaska Stat.
§ 11.41.250(a) (2016); Ariz. Rev. Stat. Ann. § 13-1201(A)
(2010); Ark. Code Ann. § 5-13-205(a)(1) (2013); N.D.
Cent. Code § 12.1-17-03 (2012). Many other offenses in
disparate areas of the criminal law—including arson,
theft, sexual assault, threats, resisting arrest, vehicular
24
homicide, and kidnapping—use comparable risk-based
formulations to define the crime or aggravating elements. See, e.g., 21 U.S.C. 858; Conn. Gen. Stat. Ann.
§ 53a-111(a)(4) (West 2012); Ind. Code Ann. § 35-43-4-2(a)(2)
(LexisNexis Supp. 2018); Iowa Code Ann. § 709.3(1)(a)
(West 2016); Md. Code Ann., Crim. Law § 3-1001(c)
(LexisNexis Supp. 2018); Mass. Ann. Laws ch. 265, § 13L
(LexisNexis 2010); Utah Code Ann. § 76-5-301(1)(b)
(LexisNexis 2017); see also Ovalles, 905 F.3d at 1250 n.8
(providing additional examples); Gov’t Supp. Br. App. at
1a-99a, Johnson, supra (No. 13-7120) (same).
Section 924(c)(3)(B) is best construed to similarly
contemplate a finding by the same jury that is otherwise
determining whether the defendant’s conduct violated
the statute. Where the jury instructions do not already
require the jury to find the sort of “element” described
in Section 924(c)(3)(A), the judge would instruct the
jury that it must make the “crime of violence” finding
for itself by determining, based on the facts of the
offense that the jury already is required to find, whether
the defendant’s conduct by its nature involved a substantial risk that physical force may have been used
against the person or property of another in the course
of committing that offense. See Ovalles, 905 F.3d at
1252. “There is nothing remarkable about asking jurors
to make that sort of risk determination—and, if
necessary, requiring judges to instruct jurors on the
meaning of terms like ‘substantial’ and ‘physical force’ ”;
indeed, that is “exactly how similar questions have been
resolved for centuries and are resolved every day in
courts throughout the country.” Id. at 1250 n.8; see
Dimaya, 138 S. Ct. at 1215; Johnson, 135 S. Ct. at 2561.
25
Since Dimaya, several courts of appeals have adopted,
at the government’s urging, a circumstance-specific approach to Section 924(c)(3)(B). See Douglas, 907 F.3d
at 4; Ovalles, 905 F.3d at 1234; Barrett, 903 F.3d at 169.
Within those circuits, district courts have instructed
juries to determine, on the facts before them, whether a
charged underlying offense qualifies as a “crime of violence” under Section 924(c)(3)(B). See, e.g., 7/16/18 Tr.
at 594-595, United States v. Blanco, No. 16-cr-408
(S.D.N.Y.); 8/20/18 Tr. at 1870-1871, United States v.
Cook, No. 17-cr-65 (D. Conn.); 11/5/18 Tr. at 947-948,
United States v. Ullah, No. 18-cr-16 (S.D.N.Y.); see
also Jury Instructions at 56, United States v. Fisher,
No. 15-cr-20652 (E.D. Mich. Aug. 22, 2018). Those juries
have been able to follow those instructions and reach
verdict in those cases.
2. The surrounding text of Section 924(c)(3)(B) supports
submitting the substantial-risk question to the jury
As this Court has repeatedly explained, statutory
language “cannot be construed in a vacuum.” Roberts
v. Sea-Land Servs., Inc., 566 U.S. 93, 101 (2012) (quoting Davis v. Michigan Dep’t of the Treasury, 489 U.S.
803, 809 (1989)). Rather, “a fundamental canon of statutory construction” is “that the words of a statute must
be read in their context and with a view to their place in
the overall statutory scheme.” Ibid. (citation omitted).
Congress enacted Section 924(c)(3)(B)’s “crime of violence” definition “[f ]or purposes of this subsection”—
i.e., exclusively for Section 924(c). 18 U.S.C. 924(c)(3).
In that context, where the government already must
prove to the jury the conduct that constitutes the “crime
of violence,” the statutory text is best read to require
the jury also to determine whether the conduct “by its
nature, involves a substantial risk that physical force
26
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). That interpretation accords not only with
the jury-suggestive “substantial risk” language, but
also with the surrounding text.
a. Section 924(c)(3)(B) focuses its inquiry on “the
course of committing the offense.” 18 U.S.C. 924(c)(3)(B).
The conduct that constitutes “the course of committing
the offense” is part of what the jury must find in determining a defendant’s guilt or innocence. That language
naturally suggests that the same jury should determine
the “risk[iness]” of the defendant’s actual conduct, ibid.
—not that the judge should conduct the substantial-risk
inquiry based on a “judge- imagined abstraction” of “an
idealized ordinary case of the crime,” Dimaya, 138 S. Ct.
at 1216 (citation omitted).
In this context, the “offense” whose “course of
commi[ssion]” is at issue is properly understood as the
defendant’s own violation of a legal prohibition, rather
than just the legal prohibition in the abstract. As this
Court recognized in Nijhawan v. Holder, supra, “in ordinary speech words such as ‘crime,’ ‘felony,’ ‘offense,’
and the like sometimes refer to a generic crime, say, the
crime of fraud or theft in general, and sometimes refer
to the specific acts in which an offender engaged on a
specific occasion, say, the fraud that the defendant
planned and executed last month.” 557 U.S. at 33-34.
The Court in Nijhawan accordingly interpreted a provision using the term “offense,” 8 U.S.C. 1101(a)(43)(M), to
“call[] for a ‘circumstance-specific,’ not a ‘categorical,’ interpretation”—even though neighboring uses of the word
“offense” required the opposite. 557 U.S. at 36; see id.
at 37-38. Similarly, in United States v. Hayes, supra,
27
the Court interpreted the phrase “an offense * * * committed by a current or former spouse,” 555 U.S. at 420
(quoting 18 U.S.C. 921(a)(33)(A)), to contemplate a factual, rather than a categorical, inquiry, see id. at 426-429.
The circumstance-specific meaning of “offense” is
consistent with the only other use of the term in Section
924(c)(3). Section 924(c)(3) defines a “crime of violence”
as an “offense that is a felony” that satisfies either the
elements clause of Section 924(c)(3)(A) or the substantialrisk inquiry of Section 924(c)(3)(B). 18 U.S.C. 924(c)(3).
The term “felony,” like the term “offense,” can have a
circumstance-specific meaning. See Nijhawan, 557 U.S.
at 33-34. And because the circumstance-specific meaning of the term “offense” encompasses both the defendant’s acts and the law those acts violated, Section
924(c)(3) is best interpreted to classify an “offense” as a
“crime of violence” when it either has particular conduct
“as an element” or is “committ[ed]” in a particular way.
18 U.S.C. 924(c)(3)(A) and (B). This Court construed
the term “offense” that way in Hayes, which involved a
definition requiring that an “offense” simultaneously be
“ ‘a misdemeanor’ ”; have a particular type of “ ‘element’ ”;
and also circumstance-specifically be “ ‘committed’ ” by a
person with a particular relationship to the victim.
555 U.S. at 421 (quoting 18 U.S.C. 921(a)(33)(A)).
b. Section 924(c)(3)(B)’s requirement of an inquiry
into whether the commission of the offense “involves”
the substantial risk of physical force also supports a
circumstance-specific approach. 18 U.S.C. 924(c)(3)(B).
Congress has employed the term “involves” in many
provisions of the criminal code—including in other provisions enacted as part of the statute that added the
“crime of violence” language to Section 924(c)—in a
28
manner “that require[s] looking into a defendant’s underlying conduct rather than a hypothetical or idealized
offense.” Douglas, 907 F.3d at 12 (citing provisions of
the Comprehensive Crime Control Act of 1984 (Comprehensive Crime Control Act), Pub. L. No. 98-473, Tit.
II, 98 Stat. 1976)). Another provision of Section 924(c),
for example, provides an enhanced penalty for subsequent convictions under that statute “if the firearm involved is a machinegun or a destructive device.”
18 U.S.C. 924(c)(1)(C)(ii) (2012) (emphasis added).
Other statutes contain similar language in the definition
of either basic elements or sentence-enhancing facts
that a jury must find about a defendant’s conduct in the
context of a criminal prosecution.2
See, e.g., 18 U.S.C. 43(a)(1) and (2)(B) (prohibiting interference
with an “animal enterprise” “by a course of conduct involving
threats, acts of vandalism, property damage, criminal trespass, harassment, or intimidation”) (emphasis added); 18 U.S.C. 111(a)
(providing enhanced penalty for assault on federal officer that “involve[s] physical contact with the victim of that assault or the intent
to commit another felony”) (emphasis added); 18 U.S.C. 351(e)
(same for assault of Members of Congress, cabinet officials, and Supreme Court Justices “if the assault involved the use of a dangerous
weapon”) (emphasis added); 18 U.S.C. 666(b) (prohibiting theft or
bribery in connection with “Federal program[s] involving a grant,
contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance”) (emphasis added); 18 U.S.C. 670(b)(2)(A) (providing enhanced penalty for theft of medical products that “involves
the use of violence, force, or a threat of violence or force”) (emphasis
added); 18 U.S.C. 1028(b)(1)(D) (providing enhanced penalty for
identity fraud “that involves the transfer, possession, or use” of
identification to obtain $1000 or more in value) (emphasis added);
18 U.S.C. 1035(a) (prohibiting false statements “in any matter involving a health care benefit program”) (emphasis added); 18 U.S.C.
1341, 1343 (same for mail and wire fraud “involving any benefit”
provided in connection with national disasters or emergencies) (emphasis added); 18 U.S.C. 2118(a) and (e)(3) (prohibiting robberies of
2
29
Even where provisions classify prior convictions—
whose underlying facts are not already before a later
tribunal—the word “involves” can be consistent with a
circumstance-specific approach. In Taylor v. United
States, 495 U.S. 575 (1990), the Court pointed to the
word’s absence as one reason to adopt a categorical, rather than circumstance-specific, approach to determining whether a defendant had a sentencing-enhancing
prior conviction for “burglary” under the ACCA. Id. at
600. The Court also has recognized that the presence of
the word “involves” complicated its adoption of a categorical approach to the ACCA’s residual clause. See
Nijhawan, 557 U.S. at 36. And it has interpreted an
INA provision concerning the classification of a prior
conviction that “involves fraud or deceit in which the
loss to the victim or victims exceeds $10,000” to require
a categorical approach with respect to the fraud-ordeceit inquiry and a circumstance-specific approach with
respect to the amount of loss. 8 U.S.C. 1101(a)(43)(M)(i);
see Kawashima v. Holder, 565 U.S. 478, 483-485 (2012);
Nijhawan, 557 U.S. at 40. A circumstance-specific interpretation of “involves” is also consistent with other
controlled substances that result in “significant bodily injury,” defined as “bodily injury which involves a risk of death, significant
physical pain,” or other specified injuries) (emphasis added);
18 U.S.C. 2252(a)(1)(A) (prohibiting transmission of “any visual depiction” that “involves the use of a minor engaged in sexually explicit conduct”) (emphasis added); 18 U.S.C. 3592(c)(6) (authorizing
sentence of death for homicide offense upon jury finding that “[t]he
defendant committed the offense in an especially heinous, cruel, or
depraved manner in that it involved torture or serious physical
abuse to the victim”) (emphasis added).
30
criminal statutes that use the word in a circumstancespecific manner in the context of a prior offense.3
c. In the context of conduct currently before the
jury, the modifier “by its nature” further supports a
circumstance-specific approach. “[T]he word ‘nature’
as used in the phrase ‘by its nature’ is commonly understood to mean ‘the basic or inherent features, character,
or qualities of something.’ ” Barrett, 903 F.3d at 182 (quoting Oxford Dictionary of English 1183 (3d ed. 2010));
see, e.g., Webster’s Third New International Dictionary 1507 (2002) (variously defining “nature” as the “normal and characteristic quality,” “essential character,”
and “distinguishing qualities or properties of something”). In the context of Section 924(c)(3)(B), that
“something” is the defendant’s particular conduct in violation of federal law. Ovalles, 905 F.3d at 1247; see
Douglas, 907 F.3d at 11; Barrett, 903 F.3d at 182. “It is
entirely natural to use words like ‘nature’ and ‘offense’
to refer to an offender’s actual underlying conduct.” Dimaya, 138 S. Ct. at 1254 (Thomas, J., dissenting); see
id. at 1254 n.7 (listing examples); Schware v. Board of
Bar Exam’rs, 353 U.S. 232, 242-243 (1957) (describing
See, e.g., 18 U.S.C. 3592(c)(2) (authorizing sentence of death for
homicide offense upon jury finding that defendant had “previously
been convicted of a Federal or State offense * * * involving the use
or attempted or threatened use of a firearm”); 18 U.S.C. 3592(c)(4)
(same where defendant had “previously been convicted of 2 or more
Federal or State offenses * * * involving the infliction of, or attempted infliction of, serious bodily injury or death upon another
person”); see also United States v. Rodriguez, 581 F.3d 775, 805-807
(8th Cir. 2009) (rejecting argument that categorical approach should
apply to Section 3592(c)(4)), cert. denied, 562 U.S. 981 (2010);
United States v. Higgs, 353 F.3d 281, 316-317 (4th Cir. 2003) (same
for Section 3592(c)(2)), cert. denied, 543 U.S. 999 (2004).
3
31
“the nature of the offense” at issue as “recruiting persons to go overseas to aid the Loyalists in the Spanish
Civil War”); TXO Prod. Corp. v. Alliance Res. Corp.,
509 U.S. 443, 482 (1993) (O’Connor, J., dissenting) (describing “the nature of the offense at issue” as not “involving grave physical injury” but rather as a “business dispute between two companies in the oil and gas industry”).
Two violations of the same criminal statute can have
very different natures, such that one “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), and
the other does not. A conspiracy to commit arson of a
rival gang’s headquarters, for example, is “by its nature” different from a conspiracy to commit arson of
one’s own property for insurance money. See 18 U.S.C.
844(i) (defining arson to include arson of a defendant’s
own property). And the focus on the “nature” of the
crime has the practical effect of limiting the jury’s inquiry to the offense, rather than the offender, or any
other extraneous considerations. The phrase “by its nature” assures, for example, that the jury may not consider evidence of the defendant’s prior violent crimes or
acts in determining whether a “substantial risk” existed
that the defendant might have used force during the instant offense, even if that evidence is admissible for
other purposes. See, e.g., Dowling v. United States,
493 U.S. 342, 344-345 (1990) (discussing use of evidence
of prior violent crime for identification purposes). Conversely, a defendant could not seek to establish the lack
of a substantial risk by introducing evidence of his
peaceful nature or of the non-violent circumstances of
his past offenses.
32
In the context of a prior conviction, in contrast, attaching the modifier “by its nature” to the inquiry into
whether an offense “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), might suggest a categorical approach. This Court’s decision in Leocal v. Ashcroft,
543 U.S. 1 (2004), for example, focused on that modifier
as an indication that the definition of “crime of violence”
in 18 U.S.C. 16(b)—which is linguistically almost identical to Section 924(c)(3)(B) 4—requires a categorical approach in the context of an immigration proceeding that
required Section 16(b)’s application to a prior conviction. 543 U.S. at 7; see also Dimaya, 138 S. Ct. at 1217
(plurality opinion) (similar). But the “nature” of a prior
conviction and the “nature” of the offense underlying a
Section 924(c) prosecution are two different things.
See, e.g., Yates v. United States, 135 S. Ct. 1074, 1082
(2015) (plurality opinion) (noting that “the same words,
placed in different contexts, sometimes mean different
things”). Whereas the “nature” of a prior conviction
may be the legal determination reflected in the judicial
records of that conviction, cf. Shepard v. United States,
544 U.S. 13, 16 (2005), the “nature” of a current offense
is the defendant’s particular conduct. The use of the
phrase “by its nature” in the jury-trial context of Section 924(c) proceedings thus does not suggest that Congress intended for a judge to resolve the substantialrisk inquiry as an abstract question of law.
Section 16(b) sets off the phrase “by its nature” in a separate
appositive clause; Section 924(c)(3)(B) does not include a comma before the word “by.”
4
33
B. Congress’s Restriction Of Section 924(c)(3)(B) To
The Jury-Trial Context Removes The Practical And
Constitutional Concerns That Support The Categorical
Approach In The Context Of Classifying Prior Convictions
Section 924(c)(3)(B)’s limitation to the classification
of an offense already before the jury not only provides
critical context for interpreting its language, but also
eliminates the practical and constitutional concerns that
animated this Court’s adoption of the categorical approach for other statutes. The Court has only considered, and only embraced, the categorical approach in
the “singular context” of “ judicial identification of what
crimes (most often, state crimes) of prior conviction fit
federal definitions of violent crimes so as to expose a
defendant to enhanced penalties or other adverse consequences in subsequent federal proceedings.” Barrett,
903 F.3d at 181. Although the lower courts and the government previously interpreted Section 924(c)(3)(B) in
line with the Court’s decisions in the prior-conviction
context, the decisions themselves make clear that they
rest in large part on practical and constitutional considerations that do not apply in Section 924(c)(3)(B)’s jurytrial context. Douglas, 907 F.3d at 13 (observing that
the Court “fashioned and refined the categorical approach both for practical and constitutional reasons that
are specific to the consideration of a prior conviction”).
Those decisions therefore cannot support continued disregard for the best contextual interpretation of Section
924(c)(3)(B). See Dimaya, 138 S. Ct. at 1256 (Thomas,
J., dissenting) (“[T]he categorical approach was never
really about the best reading of the text.”).
34
1. Decisions adopting the categorical approach in the
prior-conviction context have anachronistically
influenced the interpretation of Section 924(c)(3)(B)
Congress intentionally separated Section 924(c)(3)(B)’s
subsection-specific definition of “crime of violence” from
other provisions that employ similar language but—
unlike Section 924(c)(3)(B)—apply in the context of
prior convictions. Before this Court’s decision in Dimaya,
however, lower courts and the government relied on this
Court’s decisions interpreting those other provisions to
adopt a categorical approach to Section 924(c)(3)(B).
a. When Congress enacted Section 924(c)(3)(B)’s
subsection-specific “crime of violence” definition in the
Firearms Owners’ Protection Act, Pub. L. No. 99-308,
§ 104(a)(2)(F), 100 Stat. 457, in 1986, this Court had
never addressed, let alone endorsed, a categorical approach to the classification of offenses at all. Congress
thus would not have anticipated a categorical approach
to the classification of a defendant’s conduct that is already before the jury, and nothing suggests that it affirmatively wanted to take the substantial-risk inquiry
out of the jury’s hands. Indeed, it deliberately isolated
Section 924(c)(3)(B) from other code provisions that
have since been construed to incorporate a categorical
approach.
As originally enacted, Section 924(c) made it a crime
for an individual to “use[] a firearm to commit any felony which may be prosecuted in a court of the United
States,” or to “carr[y] a firearm unlawfully during the
commission” of such a felony. Gun Control Act of 1968,
Pub. L. No. 90-618, Tit. I, § 102, 82 Stat. 1224 (emphasis
added). In the ensuing years, Congress considered several proposals to “refine the offense by confining it to
35
its proper and practical boundaries as a means of deterring and punishing the employment of a firearm” during
violent crimes. S. Rep. No. 307, 97th Cong., 1st Sess.
889 (1981). In 1981, for example, the Senate Judiciary
Committee reported on proposed revisions to Section
924(c) that would have limited the underlying offenses
to certain “crime[s] of violence” in a manner similar to
the current version except that it also would have included “certain misdemeanors.” Id. at 888; see id. at
888-889 & n.42. The Committee described the scope of
misdemeanor coverage in conduct-focused terms, explaining that the proposal would not cover “a ‘misdemeanor that consists solely of damage to property and
that does not place another person in danger of death
or serious bodily injury’ ”—a limitation that was “intended to exclude situations in which a person, at no risk
to human safety, uses a firearm to damage a sign or
other object on a Federal reservation or to shoot game
unlawfully.” Id. at 889. And it emphasized that Section
924(c) overall would remain focused on “dangerous
criminal conduct.” Id. at 888 (emphasis added).
In 1984, Congress revised Section 924(c) to prohibit
“us[ing] or carr[ying] a firearm” “during and in relation
to” a federal “crime of violence.” Comprehensive Crime
Control Act, Ch. X, Pt. D, § 1005(a), 98 Stat. 2138. The
1984 revision to Section 924(c) did not contain its own
definition of “crime of violence,” but instead incorporated the general definition of that term set forth in
18 U.S.C. 16, which was enacted as part of the same legislation (and which remains unchanged today). See
S. Rep. No. 225, 98th Cong., 1st Sess. 307, 313 n.9 (1983)
(1983 Senate Report); see also Comprehensive Crime
Control Act, Pt. A, § 1001(a), 98 Stat. 2136. The Senate
Judiciary Committee explained that the “essence” of
36
the “crime of violence” definition, as applied to Section
924(c), was that it limited the statute’s application to
“offenses in which the use of physical force is an element,” as well as to “any felony which carries a substantial risk of such force,” 1983 Senate Report 313 n.9
(emphasis added)—not one that ordinarily (or necessarily) requires such a risk in the abstract.
At the time that amendment was enacted, and for
several years thereafter, the “substantial risk” inquiry
required under 18 U.S.C. 16(b) was not uniformly understood to require a categorical approach. The government, for example, argued in several Section 924(c)
cases that Section 16(b) required a circumstancespecific approach to determining whether drug trafficking offenses qualified as “crime[s] of violence” for purposes of Section 924(c). See, e.g., United States v. Cruz,
805 F.2d 1464, 1469 (11th Cir. 1986) (noting that the
government “asks us to inquire whether the crime, as
committed, actually created a substantial risk of harm.”),
cert. denied, 481 U.S. 1006, and 482 U.S. 930 (1987);
United States v. Bushey, 617 F. Supp. 292, 299 (D. Vt.
1985) (describing government’s argument that court
should consider whether crime, as committed with a firearm, constitutes a crime of violence). And the Sentencing
Commission interpreted Section 16 to cover not only certain categories of offenses (e.g., “murder,” “aggravated
assault,” “robbery”) that would invariably meet its requirements, but also “[o]ther offenses * * * if the conduct for which the defendant was specifically convicted
meets the [statutory] definition.” Sentencing Guidelines
§ 4B1.2, comment. (n.1) (1987) (emphasis added).
After courts began to settle instead on a categorical
approach that excluded drug trafficking (which can be
committed through nonviolent consensual sales), see,
37
e.g., United States v. Diaz, 778 F.2d 86, 88 (2d Cir. 1985)
(per curiam), Congress amended Section 924(c) to abrogate those decisions. The Firearms Owners’ Protection
Act both defined “drug trafficking crime[s]” as underlying offenses under Section 924(c) and decoupled Section 924(c)’s definition of a “crime of violence” from Section 16 by enacting a new definition of that term in Section 924(c)(3) that applied only “[f ]or purposes of this
subsection.” § 104(a)(2)(B), (C), and (F), 100 Stat. 457;
see, e.g., H.R. Rep. No. 495, 99th Cong., 2d Sess. 2 (1986).
The decision to give Section 924(c)(3) its own, freestanding crime-of-violence definition contrasted with congressional action regarding other provisions. Congress simultaneously amended 18 U.S.C. 929, which prohibits the
possession of armor-piercing ammunition in connection
with certain crimes, to include drug-trafficking crimes;
but it did not disturb Section 929’s incorporation of Section 16’s definition of “crime of violence.” See Firearms
Owners’ Protection Act § 108, 100 Stat. 460. The addition of a self-contained, subsection-specific “crime of violence” definition in Section 924(c) thus demonstrates
Congress’s intention for Section 924(c)(3)(B) to stand
apart from the more broadly applicable definition in
Section 16(b).
b. Any development of a circumstance-specific approach to Section 924(c)(3)(B) tailored to its particular
language and context, however, was effectively forestalled by reliance on this Court’s developing categoricalapproach jurisprudence. Although that jurisprudence
arose in the context of prior convictions, it came to predominate the landscape of offense-classification provisions.
The watershed was this Court’s 1990 decision in Taylor v. United States, supra. Relying in part on practical
38
considerations and Sixth Amendment concerns, the
Court in Taylor held that to determine whether a
defendant’s prior conviction constitutes the enumerated
crime of “burglary” under the ACCA, 18 U.S.C.
924(e)(2)(B)(ii), courts generally must “look only to the
fact of conviction and the statutory definition of the
prior offense.” 495 U.S. at 602; see id. at 601-602;
pp. 40-44, infra. The ordinary-case categorical approach
is a close relative of Taylor’s. See Dimaya, 138 S. Ct.
at 1211 & n.1.
Noting that it was not the first court to do so, this
Court in James v. United States, 550 U.S. 192 (2007),
overruled by Johnson v. United States, supra, applied
the ordinary-case categorical approach in the context of
the ACCA’s residual clause, which encompassed prior
convictions for an offense that “otherwise involves conduct that presents a serious potential risk of physical
injury to another,” 18 U.S.C. 924(e)(2)(B)(ii). See James,
550 U.S. at 208 (citing United States v. Thomas, 361 F.3d
653, 659 (D.C. Cir. 2004), vacated, 543 U.S. 111 (2005)).
The Court explained that application of the ACCA’s residual clause requires an analysis of “whether the conduct encompassed by the elements of the offense, in the
ordinary case” posed such a risk. Ibid. The Court in
Leocal had taken a similar approach, without much discussion, to the application of Section 16(b) to classify a
prior conviction in the context of a civil immigration
proceeding. See 543 U.S. at 7. And the plurality in Dimaya explicitly took the view that Section 16(b) incorporates James’s ordinary-case categorical approach.
See 138 S. Ct. at 1217-1218. But at the time that James
was decided, the application of the categorical approach
was not understood to raise any serious constitutional
concerns. See Johnson, 135 S. Ct. at 2556; Sykes v.
39
United States, 564 U.S. 1, 13 (2011), overruled by Johnson v. United States, supra; James, 550 U.S. at 210 n.6;
p. 45, infra.
In the absence of specific guidance from this Court,
or reason to think that the categorical approach presented constitutional concerns, the government and the
lower courts generally treated Section 924(c)(3)(B)
analogously to similarly worded provisions in the
ACCA’s residual clause and Section 16(b), despite the
provisions’ different contexts. Courts of appeals regularly cited Taylor when applying the categorical approach to Section 924(c), including when applying Section 924(c)(3)(B). See, e.g., United States v. Taylor,
176 F.3d 331, 337-338 (6th Cir. 1999); United States v.
Kennedy, 133 F.3d 53, 56 (D.C. Cir. 1998); United States
v. Moore, 38 F.3d 977, 979-981 & n.6 (8th Cir. 1994);
United States v. Mendez, 992 F.2d 1488, 1489-1490
(9th Cir.), cert. denied, 510 U.S. 896 (1993). Courts also
continued to treat precedents under Section 924(c)(3)
and Section 16 as interchangeable. See, e.g., United
States v. Benally, 843 F.3d 350, 354 (9th Cir. 2016);
United States v. Williams, 343 F.3d 423, 431 (5th Cir.),
cert. denied, 540 U.S. 1093 (2003); Park v. INS, 252 F.3d
1018, 1022 (9th Cir. 2001), overruled by FernandezRuiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006); see also,
e.g., United States v. Amparo, 68 F.3d 1222, 1225 (9th Cir.
1995) (relying on Section 16(b)’s legislative history to
reject defendant’s proposal for a circumstance-specific
approach to Section 924(c)(3)(B)), cert. denied, 516 U.S.
1164 (1996).
40
2. The adoption of the categorical approach in the priorconviction context reflects practical and constitutional
concerns that are irrelevant to Section 924(c)(3)(B)
The cross-pollination of circuit law had the unfortunate effect of losing sight of Congress’s deliberate isolation of Section 924(c)(3). As several courts of appeals have
recognized since Dimaya, because Section 924(c)(3)(B)
is subsection-specific and never applies to the classification of prior convictions, much of the rationale underlying the categorical approach is absent. Indeed, the
practical and constitutional concerns that favored a categorical approach to provisions that classify prior convictions support a circumstance-specific approach to
Section 924(c)(3)(B).
a. This Court has made clear that the adoption of the
categorical approach for classifying prior convictions
rests in part on a practical concern—avoiding “the relitigation of past convictions in minitrials conducted long after the fact,” Moncrieffe v. Holder, 569 U.S. 184, 200201 (2013)—that does not exist in the Section 924(c)(3)(B)
context. A circumstance-specific approach to prior convictions has the “daunting” practical obstacle of requiring a determination—potentially many years later—
how a defendant’s prior offense actually occurred. Taylor, 495 U.S. at 601; see ibid. (noting the related “potential unfairness” to defendants from a factual approach
to past convictions); see also Mathis v. United States,
136 S. Ct. 2243, 2253 (2016) (similar); Shepard, 544 U.S. at
20 (describing the categorical approach as a “pragmatic”
way to “avoid[] subsequent evidentiary enquiries”).
Surmounting that obstacle would be a considerable
challenge. Convictions underlying an ACCA enhancement are often “adjudicated by different courts in pro-
41
ceedings that occurred long before the defendant’s present sentencing.” Douglas, 907 F.3d at 14 (citation omitted); see Taylor, 495 U.S. at 578 & n.1 (addressing
ACCA classification of two prior burglary convictions
adjudicated in Missouri state courts 17 and 25 years
earlier). The same is true for many statutes that incorporate Section 16(b) in the context of classifying prior
convictions, including the INA provision at issue in
Leocal and Dimaya. See Dimaya, 138 S. Ct. at 1218
(plurality opinion) (discussing the “utter impracticability” of a circumstance-specific approach to classifying
prior convictions under Section 16(b)) (quoting Johnson,
135 S. Ct. at 2562). Although Congress has nonetheless
sometimes required a circumstance-specific approach
to prior convictions, see Nijhawan, 557 U.S. at 32; Hayes,
555 U.S. at 426, the categorical approach “serves a purpose when evaluating prior state convictions committed
long ago in fifty state jurisdictions with divergent laws,”
United States v. St. Hubert, 883 F.3d 1319, 1336
(11th Cir.), cert. denied, 139 S. Ct. 246, vacated, 909 F.3d
335, 337 (11th Cir. 2018); see Douglas, 907 F.3d at 13.
The categorical approach would serve no such purpose
in the context of Section 924(c)(3)(B). As discussed, the
application of Section 924(c)(3)(B) does not depend on a
historical conviction, but rather on “a crime of pending
prosecution.” Barrett, 903 F.3d at 169; see also, e.g.,
Shuti v. Lynch, 828 F.3d 400, 449-450 (6th Cir. 2016),
cert. denied, 138 S. Ct. 1977 (2018). A Section 924(c) prosecution necessarily involves a “developed factual record”
about the underlying crime. St. Hubert, 883 F.3d at 1335.
Because “the predicate offense and the § 924(c)(3)(B) enhancement are considered at the same time,” Douglas,
907 F.3d at 13, the practical concerns that favored the
adoption of a categorical approach in the context of prior
42
convictions do not arise in prosecutions under Section
924(c)(3)(B). In fact, in the context of Section 924(c)(3)(B),
a circumstance-specific approach is more workable and
fair than a categorical one.
This Court has characterized the “ ‘ordinary case’ ”
approach as “an excessively ‘speculative,’ essentially inscrutable thing” that “ ‘offers significantly less predictability than one that deals with the actual facts.’ ” Dimaya, 138 S. Ct. at 1214-1215 (quoting Johnson, 135 S. Ct.
at 2558, 2561) (ellipsis omitted). Cf. Ovalles, 905 F.3d
at 1253 (W. Pryor, J., concurring) (“How did we ever
reach the point where this Court, sitting en banc, 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.”). Where “the facts concerning the relevant predicate crime * * * will [already] be in front of
a jury,” Douglas, 907 F.3d at 14, it is far more sensible
for the jury to conduct a circumstance-specific inquiry
based on the existing factual record than it would be for
a judge “to ‘imagine’ an ‘idealized ordinary case of the
crime,’ ” Dimaya, 138 S. Ct. at 1214 (quoting Johnson,
135 S. Ct. at 2557-2558). As previously discussed, see
pp. 20-25, supra, juries have long been called upon to
make determinations of risk based on the facts of particular cases, with no apparent difficulty, and a jury
hearing a Section 924(c) case could easily do the same.
See, e.g., Johnson, 135 S. Ct. at 2561; United States v.
Simms, No. 15-4640, 2019 WL 311906, at *26-*27 (4th Cir.
Jan. 24, 2019) (Wilkinson, J., dissenting).
b. In addition to practical considerations, “this Court
adopted the categorical approach in part to ‘avoid[] the
Sixth Amendment concerns that would arise from sentencing courts’ making findings of fact’ ” regarding
43
prior convictions “ ‘that properly belong to juries.’ ” Dimaya, 138 S. Ct. at 1217 (plurality opinion) (quoting
Descamps v. United States, 570 U.S. 254, 267 (2013))
(brackets in the original); see id. at 1253 (Thomas, J.,
dissenting) (describing Sixth Amendment concerns as
the “heart of the decision” to adopt the categorical approach in Taylor) (citation omitted). Those Sixth Amendment concerns do not exist in the context of Section
924(c)(3)(B), where it is the jury itself that would make
the requisite finding.
For example, a plurality of the Court in Shepard v.
United States, supra, suggested that a judge’s resolution of the disputed facts underlying a defendant’s prior
conviction at sentencing would be “too much like” the
kind of factfinding that the Sixth Amendment requires
the jury to conduct. 544 U.S. at 25; see Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000) (holding that, “[o]ther
than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt”). The plurality in
Shepard thus indicated that, in the context of the ACCA’s
residual clause—which increases certain defendants’
statutory sentencing range based on qualifying prior
convictions—the categorical approach is supported by
the “rule of reading statutes to avoid serious risks of
unconstitutionality.” 544 U.S. at 25. And in Dimaya, a
plurality of this Court observed that the same Sixth
Amendment concerns counseled against adopting a
circumstance-specific approach to Section 16(b), which
is incorporated not only into the INA, but also into certain criminal-sentencing provisions, for the purpose of
classifying prior convictions. 138 S. Ct. at 1217.
44
Section 924(c)(3)(B), in contrast, never applies to the
classification of prior convictions or to criminal sentencing. It instead provides a subsection-specific definition
of “crime of violence” that applies only in the context of
a criminal prosecution in which a defendant would enjoy
the full protection of the Sixth Amendment’s jury-trial
right. As a result, “[t]he Sixth Amendment concern is
avoided because the trial jury, in deciding whether a defendant is guilty of using a firearm ‘during and in relation
to any crime of violence,’ 18 U.S.C. § 924(c)(1)(A), can decide whether the charged predicate offense is a crime of
violence as defined in § 924(c)(3)(B).” Barrett, 903 F.3d at
182. In other words, the circumstance-specific approach
would result in more jury findings, not fewer. Douglas,
907 F.3d at 15. Thus, far from potentially denying defendants their jury-trial right, submitting the Section
924(c)(3)(B) inquiry to the jury fully respects it.
C. The Constitutional-Avoidance Canon Requires That
Section 924(c)(3)(B) Be Construed To Incorporate A
Circumstance-Specific Approach
Stripped of the practical and constitutional concerns
that animated this Court’s adoption of the categorical
approach in the context of prior convictions, this Court
should, instead, adopt the circumstance-specific approach for Section 924(c)(3)(B), which, for the reasons
explained, reflects the best contextual interpretation of
Section 924(c)(3)(B). Indeed, were there any doubt on
this score, the same constitutional-avoidance rule that
favored the ordinary-case categorical approach in the
context of classifying prior convictions militates against
that approach here. As this Court has repeatedly explained, “if an otherwise acceptable construction of a
statute would raise serious constitutional problems, and
where an alternative interpretation of the statute is
45
‘fairly possible,’ we are obligated to construe the statute
to avoid such problems.” INS v. St. Cyr, 533 U.S. 289,
299-300 (2001) (citation omitted); see also, e.g., Jennings
v. Rodriguez, 138 S. Ct. 830, 836 (2018); United States ex
rel. Attorney Gen. of U.S. v. Delaware & Hudson Co.,
213 U.S. 366, 407 (1909). It is now clear that construing
Section 924(c)(3)(B) to incorporate an ordinary-case
categorical approach would render it unconstitutional.
Thus, even if the circumstance-specific approach were
not the best reading of the statutory text, but see pp.
20-32, supra, it should be adopted because it is, at a minimum, “ ‘fairly possible.’ ” St. Cyr, 533 U.S. at 300.
1. Before 2015, neither courts nor the government
had reason to suspect that applying an ordinary-case
categorical approach to Section 924(c)(3)(B) created any
constitutional doubt. After endorsing that approach under the ACCA’s residual clause in James, 550 U.S. at
208, the Court proceeded to apply it in a series of additional cases involving the classification of prior convictions under that clause. See Begay v. United States,
553 U.S. 137, 141 (2008); Chambers v. United States,
555 U.S. 122, 125 (2009); Sykes, 564 U.S. at 3-4. In two
of its decisions, including James itself, “the Court rejected suggestions by dissenting Justices that the residual clause violates the Constitution’s prohibition of vague
criminal laws.” Johnson, 135 S. Ct. at 2556; see Sykes,
564 U.S. at 13; James, 550 U.S. at 210 n.6.
The Court then granted certiorari in Johnson to apply the ordinary-case categorical approach under the
ACCA’s residual clause to yet another type of offense.
See 135 S. Ct. at 2256. But it subsequently ordered supplemental briefing and reargument, and it then struck
down the ACCA’s residual clause on Fifth Amendment
vagueness grounds. Ibid. The Court concluded that
46
“[t]wo features of the residual clause conspire to make
it unconstitutionally vague.” Id. at 2257. The first was
its incorporation of the ordinary-case categorical approach, which “leaves grave uncertainty about how to
estimate the risk posed by a crime” by tying “the judicial assessment of risk to a judicially imagined ‘ordinary
case’ of a crime, not to real-world facts or statutory elements.” Ibid. The second was “uncertainty about how
much risk it takes for a crime to qualify” as categorically risky. Id. at 2558. “It is one thing,” the Court explained, “to apply an imprecise ‘serious potential risk’
standard to real-world facts; it is quite another to apply
it to a judge-imagined abstraction.” Ibid.
Soon after holding for the first time that the ordinarycase categorical approach has vagueness implications,
the Court granted certiorari in Dimaya to address the
constitutionality of the “crime of violence” definition in
Section 16(b), as incorporated into an INA provision assigning immigration consequences to a particular type
of prior conviction. 138 S. Ct. at 1210. The government
did not dispute that Section 16(b), which is also incorporated into numerous provisions that require the classification of prior convictions in the criminal sentencing
context—and thus, in those contexts, raises the same
practical and constitutional considerations as the ACCA’s
residual clause—invites an ordinary-case categorical
approach. See id. at 1217 (plurality opinion) (“Perhaps
one reason for the Government’s reluctance [to advocate a circumstance-specific approach] is that such an
approach would generate its own constitutional questions.”). And notwithstanding some textual differences
between the ACCA’s residual clause and Section 16(b),
the Court held Section 16(b) to likewise be unconstitutionally vague because it “has the same two features as
47
ACCA’s, combined in the same constitutionally problematic way.” Id. at 1213 (majority opinion).
Although courts and the government previously construed Section 924(c)(3)(B) in line with Section 16(b), in
light of Johnson and Dimaya, the canon of constitutional avoidance compels a construction of Section
924(c)(3)(B) that adopts the circumstance-specific approach. Such a construction avoids the vagueness concerns that led this Court to invalidate the ACCA’s residual clause and Section 16(b), as incorporated into the
INA. As the Court emphasized in both Johnson and
Dimaya, applying a “substantial risk” standard “to
real-world conduct” is constitutionally unproblematic.
Dimaya, 138 S. Ct. at 1215 (quoting Johnson, 135 S. Ct.
at 2561); see id. at 1241 (Roberts, C.J., dissenting); id.
at 1257 (Thomas, J., dissenting). By contrast, an interpretation of Section 924(c)(3)(B) that steers straight
into the teeth of Johnson and Dimaya—despite the
availability of a textually sound alternative interpretation that raises no constitutional doubts—cannot be reconciled with the rule that “[a] statute should be interpreted in a way that avoids placing its constitutionality
in doubt,” Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts 247 (2012) (emphasis omitted).
The Dimaya plurality’s reasons for declining to
apply the canon of constitutional avoidance to adopt a
circumstance-specific reading of Section 16(b) are inapposite here. Emphasizing the Sixth Amendment concerns that had motivated the categorical approach in the
first place, the plurality reasoned that the constitutionalavoidance canon could not “serve * * * as the interpretive tie breaker” for Section 16(b) because it “would
merely ping-pong [the Court] from one constitutional
48
issue to another.” Dimaya, 138 S. Ct. at 1217. But to
the extent that “avoid[ing] the Scylla of the Sixth Amendment[’s]” jury-trial right for Section 16(b) necessitated
“steer[ing] * * * straight into the Charybdis of the
Fifth” Amendment’s vagueness concerns, id. at 1254
(Thomas, J., dissenting), that is not the case with
respect to Section 924(c)(3)(B), where the jury would
have a greater role under a circumstance-specific approach. See pp. 42-44, supra.
And to the extent that the plurality’s statement that
Section 16(b)’s text is “[b]est read” to “demand[] a categorical approach” suggested its view that no circumstancespecific construction of Section 16(b) was plausible, Dimaya, 138 S. Ct. at 1217, Section 924(c)(3)(B)’s limitation to the jury-trial context provides ample support for
reading its text differently. See pp. 20-32, supra; see
also, e.g., Curtis Johnson v. United States, 559 U.S. 133,
139 (2010) (“Ultimately, context determines meaning.”).
Indeed, the Dimaya plurality’s interpretation of Section 16(b) was informed by the “utter impracticability”
of a circumstance-specific approach to Section 16(b)’s
classification of prior convictions. 138 S. Ct. at 1218 (citation omitted). But such an approach is, if anything,
the more practical one here.
2. The longstanding rule that “where a statute is
susceptible of two constructions, by one of which grave
and doubtful constitutional questions arise and by the
other of which such questions are avoided, [the Court’s]
duty is to adopt the latter,” Jones v. United States,
526 U.S. 227, 239 (1999) (citation omitted), is therefore
controlling here. Adhering to it would also further the
underlying separation-of-powers rationale for the rule,
49
which arises “out of respect for Congress, which we assume legislates in the light of constitutional limitations.” Id. at 239-240 (citation omitted).
It is clear from the face of Section 924(c)(3)(B) that
Congress intended to punish offenders who employ firearms in the course of committing violent crimes. As the
courts’ repeated difficulties applying the ACCA’s residual clause made clear, see Johnson, 135 S. Ct. at 25582559, Congress has struggled to develop a form of
words that captures that intent in a precise enough way
in the abstract. But the language it enacted in Section
924(c)(3)(B) is sufficiently precise for circumstancespecific application by a jury. See Dimaya, 138 S. Ct.
at 1215; Johnson, 135 S. Ct. at 2561. Unnecessarily construing that language to refer to an abstraction—and
thereby rendering it unconstitutional—would inappropriately undermine Congress’s law-enforcement efforts,
with severe practical consequences.
In the 12-month period ending June 30, 2018, more
than 3000 defendants were charged with a Section
924(c) violation. U.S. Courts, Table D-2—U.S. District
Courts—Criminal Statistical Tables For The Federal
Judiciary (June 30, 2018), http://www.uscourts.gov/
statistics/table/d-2/statistical-tables-federal-judiciary/
2018/06/30 (Row 68). Invalidating Section 924(c)(3)(B)
would impede the enforcement of federal criminal law
by effectively immunizing from Section 924(c) prosecution many defendants who commit offenses that do not
technically fit within Section 924(c)(3)(A), but that are
plainly violent. As the facts of this case illustrate, defendants whose prosecution requires application of Section 924(c)(3)(B) include some of the most violent criminals on the federal docket.
50
Conspiracy to commit the sort of violent robbery
spree at issue here—involving takeover-style armed robberies in which respondents threatened to injure or kill
store employees with a loaded short-barreled shotgun—
indisputably “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); see pp. 3-6, supra (detailing respondents’ crimes). A Hobbs Act conspiracy need
not, however, lead to the commission of the planned robbery, see Callanan v. United States, 364 U.S. 587, 593594 (1961), and thus such a conspiracy does not “ha[ve]
as an element the use, attempted use, or threatened use
of physical force against the person or property of another,” so as to qualify as a “crime of violence” under
18 U.S.C. 924(c)(3)(A).5
If Section 924(c)(3)(B) were invalidated, individuals
who plan to—or, like respondents, actually do—use a
gun in furtherance of a conspiracy that results in a substantial risk of force could escape prosecution under
Section 924(c). See Simms, 2019 WL 311906, at *1
(vacating Section 924(c) conviction where underlying
crime was conspiracy to commit Hobbs Act robbery in
which defendant robbed a McDonald’s restaurant,
“struck the manager with [a] gun, [and] threw a cash
drawer at [another] employee”); United States v. Eshetu,
The Fifth Circuit has determined that Hobbs Act conspiracy requires proof of at least one “overt act by one of the conspirators to
further the conspiracy.” United States v. Stephens, 964 F.2d 424,
427 (1992); see ROA 15-16 (indictment); ROA 1357 (jury instructions). Under general principles of conspiracy law, however, an
overt act need not be violent or even “be itself a crime.” Braverman
v. United States, 317 U.S. 49, 53 (1942); see 2 Wayne R. LaFave,
Substantive Criminal Law § 12.2(b), at 372-377 (3d ed. 2018).
5
51
898 F.3d 36, 36-38 (D.C. Cir.) (per curiam) (vacating Section 924(c) conviction where underlying crime was conspiracy to commit Hobbs Act robbery in which the defendants planned to rob a liquor store using knives and
guns), petition for reh’g pending, No. 15-3020 (D.C. Cir.
filed Aug. 31, 2018).
Other violent crimes might likewise be excluded. In
United States v. Salas, 889 F.3d 681, petition for cert.
pending, No. 18-428 (filed Oct. 3, 2018), for example, the
Tenth Circuit held that Section 924(c)(3)(B) is unconstitutionally vague and that federal arson, 18 U.S.C. 844(i),
does not qualify as a “crime of violence” under Section
924(c)(3)(A) because it could be committed by setting
fire to one’s own property, and thus does not have “as
an element” the use of force “against the person or
property of another.” 18 U.S.C. 924(c)(3)(A) (emphasis
added); see 889 F.3d at 683-684, 687-688. The court accordingly vacated the Section 924(c) conviction of a defendant who firebombed a business with a Molotov
cocktail. Salas, 889 F.3d at 683, 688.
Similarly, in United States v. Jenkins, 849 F.3d 390
(2017), vacated, 138 S. Ct. 1980 (2018), the Seventh Circuit determined that Section 924(c)(3)(B) is unconstitutionally vague, id. at 394, and that federal kidnapping
under 18 U.S.C. 1201(a) does not qualify as a crime of
violence under Section 924(c)(3)(A) because holding a
person “for ransom or reward or otherwise,” 18 U.S.C.
1201(a), “can be accomplished without physical force”
(e.g., by tricking the victim), 849 F.3d at 393. It therefore vacated a Section 924(c) conviction where the underlying crime was a kidnapping in which the defendant
held the victim at gunpoint, beat him, doused him in gasoline, placed a firework in his mouth, and threatened to
52
shoot him execution-style. Id. at 395; Gov’t C.A. Br. at
5-7, Jenkins, supra (No. 14-2898).
Cases in which defendants are challenging Section
924(c) convictions involving equally violent underlying
crimes are currently pending in other courts of appeals.
See, e.g., Gov’t C.A. Br. at 3-4, 11, Knight v. United
States, No. 17-6370 (6th Cir. Nov. 28, 2018) (assault and
robbery of a postal employee, in violation of 18 U.S.C.
2114(a), involving the gunpoint robbery, abduction, and
threatened murder of a postmaster); Gov’t C.A. Br. at
3-5, 11-14, Eizember v. United States, No. 17-1406
(8th Cir. Oct. 29, 2018) (kidnapping, in violation of
18 U.S.C. 1201, during which the victims, who had stopped
to help the defendant with his disabled car, were pistol
whipped and threatened with death); Gov’t C.A. Br. at
5-8, 46, United States v. Cruz-Ramirez, No. 11-10632
(9th Cir. Nov. 17, 2017) (racketeering conspiracies, in
violation of 18 U.S.C. 1959(a) and 1962(d), involving
multiple gang-related murders). This Court should not
adopt an interpretation of Section 924(c)(3)(B) that requires its invalidation, and thus permits defendants who
have planned to engage in, or actually committed, such
violent acts to escape liability under Section 924(c).
In addition to limiting current and future prosecutions,
striking down Section 924(c)(3)(B) would allow currently
incarcerated violent criminals back on the streets. A holding of this Court that Section 924(c)(3)(B) requires an
ordinary-case categorical approach—and thus is unconstitutionally vague—would be a retroactive substantive
rule applicable on collateral review. See Welch v. United
States, 136 S. Ct. 1257, 1264 (2016). Defendants who
committed violent crimes like those described above
could thus be immediately released from prison, on the
53
theory that the criminality of their conduct under Section 924(c) was in fact constitutionally indeterminate.
Under a circumstance-specific construction of Section
924(c)(3)(B), in contrast, the only prisoners who might
be eligible for collateral relief would be those who could
show actual innocence under the statute as so construed.
See Bousley v. United States, 523 U.S. 614, 623-624
(1998). Both retrospectively and prospectively, an interpretation of Section 924(c)(3)(B) tailored to punish defendants whose conduct was or is actually violent is the
most respectful of Congress’s efforts.
II. RESPONDENTS’ SECTION 924(c) CONVICTIONS ARE
VALID BECAUSE A JURY NECESSARILY WOULD
HAVE FOUND THAT THEIR CONDUCT INVOLVED A
“SUBSTANTIAL RISK” OF PHYSICAL FORCE
Properly construed, Section 924(c)(3)(B) requires a
jury to determine (or a defendant to admit through a
plea) that his conduct “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.” 18 U.S.C. 924(c)(3)(B). Although
the district court in this case did not instruct the jury to
make that determination, that error was harmless beyond a reasonable doubt. See Neder v. United States,
527 U.S. 1, 8-13 (1999) (holding that a jury instruction
that omits an element of the offense may be harmless);
Barrett, 903 F.3d at 184 (applying harmless-error analysis
to uphold Section 924(c)(3)(B) conviction where jury had
not been instructed on substantial-risk inquiry).
As the government argued in the court of appeals
(Gov’t C.A. Br. 27-29; Gov’t Second Supp. C.A. Letter
Br. 23-25), on the facts of this case, no reasonable doubt
exists that a properly instructed jury would have found
that respondents’ conduct involved a substantial risk of
54
the use of physical force against the person or property
of another. See Fed. R. Crim. P. 52(a). Respondents’
conspiracy offense involved the planning and execution
of a string of violent armed robberies during which they
used a loaded short-barreled shotgun to threaten and
immobilize their victims in an effort to force the victims
to comply with their demands to hand over merchandise
and money. Respondents did not deny their involvement in two of the violent robberies, see ROA 828-831
(Glover); ROA 840-841 (Davis), both of which effectuated and furthered their continuing conspiracy. In addition, in an effort to escape apprehension for the robberies they conspired to commit, respondents engaged
police in a high-speed chase on a wet highway that culminated in a crash. Cf. United States v. Reid, 517 F.2d
953, 965 (2d Cir. 1975) (Friendly, J.) (“The escape phase
of a crime is not * * * an event occurring ‘after the robbery.’ It is part of the robbery.”) (citation omitted).
Accordingly, had the issue been submitted to the jury,
it would have found that respondents engaged in conduct
that posed a substantial risk of the use of physical force.
As this Court recently explained, in the context of the
ACCA’s elements clause, the term “ ‘physical force’ ” includes force that could “lead[] to relatively minor forms of
injury,” including “ ‘hitting, slapping, shoving, grabbing,
pinching, biting, and hair pulling.’ ” Stokeling, 139 S. Ct.
at 554 (interpreting 18 U.S.C. 924(e)(2)(B)(i)) (citation
omitted). Respondents’ conduct posed a substantial risk
of force that far exceeded that threshold. Cf. United
States v. Parkes, 497 F.3d 220, 232 (2d Cir. 2007) (noting
that injury or death “is a natural consequence of a robbery which is premised on the use of overmastering
force and violent armed confrontation”), cert. denied,
552 U.S. 1220 (2008). In light of respondents’ actual
55
conduct during the course of their conspiracy, the jury
would necessarily have found that the offense was a
“crime of violence” under Section 924(c)(3)(B). Their
convictions under Section 924(c)(3) should therefore be
reinstated. At a minimum, the case should be remanded
so that the government may retry respondents under
proper jury instructions.
CONCLUSION
The judgment of the court of appeals should be
reversed, or, alternatively, vacated and remanded with
instructions to permit a retrial.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
BRIAN A. BENCZKOWSKI
Assistant Attorney General
ERIC J. FEIGIN
ERICA L. ROSS
Assistants to the Solicitor
General
ROBERT A. PARKER
JOHN P. TADDEI
Attorneys
FEBRUARY 2019
APPENDIX
1.
U.S. Const. Amend. V provides:
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in
the land or naval forces, or in the Militia, when in actual
service in time of War or public danger; nor shall any
person be subject for the same offence to be twice put in
jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process of law; nor shall private property be taken for
public use, without just compensation.
2.
18 U.S.C. 16 provides:
Crime of violence defined
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.
(1a)
2a
3.
18 U.S.C. 922(g) provides in pertinent part:
Unlawful acts
(g)
It shall be unlawful for any person—
(1) who has been convicted in any court of, a
crime punishable by imprisonment for a term exceeding one year;
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to ship or transport in interstate or foreign commerce,
or possess in or affecting commerce, any firearm or
ammunition; or to receive any firearm or ammunition
which has been shipped or transported in interstate or
foreign commerce.
4.
18 U.S.C. 924 (2012) provides in pertinent part:
Penalties
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(c)(1)(A) 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—
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(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.
(B) If the firearm possessed by a person convicted
of a violation of this subsection—
(i) is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, the person
shall be sentenced to a term of imprisonment of not
less than 10 years; or
(ii) is a machinegun or a destructive device, or
is equipped with a firearm silencer or firearm muffler, the person shall be sentenced to a term of imprisonment of not less than 30 years.
(C) In the case of a second or subsequent conviction under this subsection, the person shall—
(i) be sentenced to a term of imprisonment of
not less than 25 years; and
(ii) if the firearm involved is a machinegun or a
destructive device, or is equipped with a firearm silencer or firearm muffler, be sentenced to imprisonment for life.
(D)
Notwithstanding any other provision of law—
(i) a court shall not place on probation any person convicted of a violation of this subsection; and
(ii) no term of imprisonment imposed on a person under this subsection shall run concurrently with
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any other term of imprisonment imposed on the person, including any term of imprisonment imposed for
the crime of violence or drug trafficking crime during which the firearm was used, carried, or possessed.
(2) For purposes of this subsection, the term “drug
trafficking crime” means any felony punishable under
the Controlled Substances Act (21 U.S.C. 801 et seq.), the
Controlled Substances Import and Export Act (21 U.S.C.
951 et seq.), or chapter 705 of title 46.
(3) 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.
(4) For purposes of this subsection, the term
“brandish” means, with respect to a firearm, to display
all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order
to intimidate that person, regardless of whether the
firearm is directly visible to that person.
(5) Except to the extent that a greater minimum
sentence is otherwise provided under 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 prose-
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cuted in a court of the United States, uses or carries
armor piercing ammunition, or who, in furtherance of
any such crime, possesses armor piercing ammunition,
shall, in addition to the punishment provided for such
crime of violence or drug trafficking crime or conviction under this section—
(A) be sentenced to a term of imprisonment of
not less than 15 years; and
(B) if death results from the use of such
ammunition—
(i) if the killing is murder (as defined in section 1111), be punished by death or sentenced to
a term of imprisonment for any term of years or
for life; and
(ii) if the killing is manslaughter (as defined
in section 1112), be punished as provided in section 1112.
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(e)(1) In the case of a person who violates section
922(g) of this title and has three previous convictions
by any court referred to in section 922(g)(1) of this title
for a violent felony or a serious drug offense, or both,
committed on occasions different from one another, such
person shall be fined under this title and imprisoned not
less than fifteen years, and, notwithstanding any other
provision of law, the court shall not suspend the sentence
of, or grant a probationary sentence to, such person
with respect to the conviction under section 922(g).
(2)
As used in this subsection—
(A) the term “serious drug offense” means—
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(i) an offense under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled
Substances Import and Export Act (21 U.S.C.
951 et seq.), or chapter 705 of title 46 for which a
maximum term of imprisonment of ten years or
more is prescribed by law; or
(ii) an offense under State law, involving
manufacturing, distributing, or possessing with
intent to manufacture or distribute, a controlled
substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which
a maximum term of imprisonment of ten years or
more is prescribed by law;
(B) the term “violent felony” means any crime
punishable by imprisonment for a term exceeding
one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that—
(i) has as an element the use, attempted use,
or threatened use of physical force against the
person of another; or
(ii) is burglary, arson, or extortion, involves
use of explosives, or otherwise involves conduct
that presents a serious potential risk of physical
injury to another; and
(C) the term “conviction” includes a finding that
a person has committed an act of juvenile delinquency involving a violent felony.
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5.
18 U.S.C. 1951 provides:
Interference with commerce by threats or violence
(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion
or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.
(b)
As used in this section—
(1) The term “robbery” means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will,
by means of actual or threatened force, or violence,
or fear of injury, immediate or future, to his person
or property, or property in his custody or possession, or the person or property of a relative or
member of his family or of anyone in his company at
the time of the taking or obtaining.
(2) The term “extortion” means the obtaining
of property from another, with his consent, induced
by wrongful use of actual or threatened force, violence, or fear, or under color of official right.
(3) The term “commerce” means commerce
within the District of Columbia, or any Territory or
Possession of the United States; all commerce between any point in a State, Territory, Possession, or
the District of Columbia and any point outside thereof; all commerce between points within the same
State through any place outside such State; and all
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other commerce over which the United States has
jurisdiction.
(c) This section shall not be construed to repeal,
modify or affect section 17 of Title 15, sections 52, 101115, 151-166 of Title 29 or sections 151-188 of Title 45.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.