Amicus Curiae Brief — United States, Petitioner v. Justin Eugene Taylor

No. 20-1459

IN THE

Supreme Court of the United States

___________

UNITED STATES,

v.

JUSTIN EUGENE TAYLOR,

___________

Petitioner,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

___________

BRIEF OF AMICI CURIAE ON BEHALF OF THE

NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS AND FAMM IN SUPPORT

OF RESPONDENT

___________

MARY PRICE

General Counsel

FAMM

1100 H Street, N.W.

Washington, D.C. 20005

(202) 822-6700

JEFFREY T. GREEN*

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

jgreen@sidley.com

XIAO WANG

JOSHUA KLEINFELD

NORTHWESTERN SUPREME

COURT PRACTICUM

375 E. Chicago Avenue

(312) 503-1486

Counsel for Amici Curiae

October 29, 2021

* Counsel of Record

TABLE OF CONTENTS

Page

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

iii

INTEREST OF AMICI CURIAE ..........................

1

SUMMARY OF ARGUMENT ..............................

2

ARGUMENT .........................................................

3

I. THE GOVERNMENT ATTEMPTS TO

FLOUT THIS COURT’S HOLDING IN DAVIS AND REVIVE THE UNCONSTITUTIONAL RESIDUAL CLAUSE ....................

3

A. The categorical approach applied to §

924(c)’s elements clause looks solely to

what proof a statute of conviction necessitates.......................................................

4

B. The government’s “legal imagination” aspersion has no place in applying the categorical approach to § 924(c)’s elements

clause .......................................................

6

C. The government’s argument by anecdote

bears a fatal resemblance to “ordinary

case” analysis ..........................................

8

II. THE RULE OF LENITY REQUIRES

HOLDING THAT ATTEMPTED HOBBS

ACT ROBBERY IS NOT A “CRIME OF VIOLENCE” ......................................................

11

A. Section 924 is at best ambiguous about

what constitutes a valid predicate offense.

...................................................................

11

B. The rule of lenity’s purposes apply with

force here. ..................................................

13

(i)

TABLE OF CONTENTS—continued

C. Application of lenity is particularly important for mandatory minimum sentences.. .......................................................

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

ii

Page

14

19

iii

TABLE OF AUTHORITIES

CASES

Page

Begay v. United States, 553 U.S. 137

(2008), abrogated by Johnson v.

United States, 576 U.S. 591 (2015)............

14

Bifulco v. United States,

447 U.S. 381 (1980) ....................................

14

Borden v. United States,

141 S. Ct. 1817 (2021) ............................ passim

Busic v. United States,

446 U.S. 398 (1980) ....................................

16

Chapman v. United States,

500 U.S. 453, 463 (1991) ...........................

11

Descamps v. United States,

570 U.S. 254 (2013) ....................................

3

Gonzales v. Duenas-Alvarez,

549 U.S. 183 (2007) ....................................

7

Harris v. United States, 536 U.S.

545 (2002), overruled by Alleyne v.

United States, 570 U.S. 99 (2013)..............

16

Holloway v. United States,

526 U.S. 1, 21 (1999) .................................

12

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

208 (2007), overruled by Johnson

v. United States, 576 U.S. 591 (2015)........

5

Johnson v. United States,

559 U.S. 133 (2010) ....................................

5

Johnson v. United States,

576 U.S. 591 (2015) ............................... 5, 6, 8, 9

Lamb’s Chapel v. Ctr. Moriches

Union Free Sch. Dist.,

508 U.S. 384 (1993) ....................................

10

Moncrieffe v. Holder,

7

569 U.S. 184 (2013) ....................................

Neal v. United States,

516 U.S. 284 (1996) ....................................

17

TABLE OF AUTHORITIES—continued

Page

Shular v. United States,

140 S. Ct. 779 (2020) ............................. 5, 11, 12

Taylor v. United States,

495 U.S. 575 (1990) ....................................

4

Toussie v. United States,

397 U.S. 112 (1970) ....................................

12

United States v. Bass,

404 U.S. 336 (1971) ................................... 13, 18

United States v. Castleman,

572 U.S. 157 (2014) .................................... 4, 6

United States v. Davis,

139 S. Ct. 2319 (2019) ............................ passim

United States v. Dean, 556 U.S.

568 (2009) ..................................................

17

United States v. Granderson,

511 U.S. 39(1994) ......................................

15

United States v. Lanier,

520 U.S. 259 (1997) .............................. 12, 13, 15

United States v. O’Brien,

560 U.S. 218 (2010) ....................................

15

United States v. R.L.C.,

503 U.S. 291 (1992) .................................. 15, 18

United States v. Rentz, 777 F.3d

1105 (10th Cir. 2015) .................................

14

United States v. Santos,

553 U.S. 507 (2008) ...................................

18

United States v. Taylor,

979 F.3d 203 (4th Cir. 2020) ......................

8

United States v. Wiltberger,

15

18 U.S. 76 (1820) ........................................

STATUTES AND ACTS

18 U.S.C. § 924(c) ..........................................

18 U.S.C. § 924(c)(1) ......................................

iv

3

14

TABLE OF AUTHORITIES—continued

Page

18 U.S.C. § 924(c)(3) ................................ 2, 4, 5, 13

18 U.S.C. § 3553(a)(1) ...................................

16

Sentencing Reform Act..................................

17

OTHER AUTHORITIES

Rachel E. Barkow, Categorical Mistakes,

133 Harv. L. Rev. 200 (2019). ....................

v

14

INTEREST OF AMICI CURIAE 1

The National Association of Criminal Defense Lawyers (NACDL) is a nonprofit voluntary professional

bar association that works on behalf of criminal defense attorneys to ensure justice and due process for

those accused of crime or misconduct. NACDL was

founded in 1958 and boasts a nationwide membership

of many thousands of direct members and up to 40,000

with affiliates. NACDL’s members include private

criminal defense lawyers, public defenders, military

defense counsel, law professors, and judges. It is the

only nationwide professional bar association for public

defenders and private criminal defense lawyers.

NACDL is dedicated to advancing the proper, efficient,

and just administration of justice.

NACDL and its members have an important interest

in ensuring that the government does not ignore the

Supreme Court’s recent instructions to sentencing

courts on how to determine what constitutes a “crime

of violence” and, instead, attempt to resuscitate nowdefunct methods of sentencing that subject individuals

to mandatory minimum sentences.

Amicus FAMM, previously known as “Families

Against Mandatory Minimums,” is a national, nonprofit, nonpartisan organization whose primary mission is to promote fair and rational criminal justice pol-

1Pursuant to Supreme Court Rule 37, amici state that no counsel for any party authored this brief in whole or in part, and that

no entity or person other than amici and their counsel made any

monetary contribution toward the preparation and submission of

this brief. Both of the parties have consented to the filing of this

brief, and undersigned amici have transmitted those consents to

the Clerk of the Court in the course of filing this brief.

2

icies and to challenge inflexible and excessive penalties required by mandatory and extreme sentencing

laws. Founded in 1991, FAMM currently has more

than 75,000 members around the country. By mobilizing currently and formerly incarcerated people and

their families who have been adversely affected by unjust sentences, FAMM illuminates the human face of

sentencing as it advocates for state and federal sentencing reform. FAMM advances its charitable purposes in part through education of the general public

and through selected amicus filings in important

cases.

FAMM submits this brief cognizant of the toll mandatory minimums, including those contained in 18

U.S.C. § 924(c)(3), exact on its members in prison,

their loved ones, and our communities. In light of the

grave harm these sentences wreak, FAMM is keenly

interested in ensuring they be used sparingly and only

to the extent Congress intended. In the event there is

any ambiguity in congressional intent with respect to

the requirements of any sentencing law, the rule of

lenity resolves it in favor of the defendant.

SUMMARY OF ARGUMENT

In its opening brief, the government makes a startling proposal that the Court resuscitate the now-defunct “ordinary case” analysis that was used only when

applying the categorical approach to the unconstitutional residual clause. Anything less, the government

contends, would require an exercise of “legal imagination,” Br. U.S. 13, as opposed to a purportedly more

concrete examination of “realistic probabilit[ies],” Br.

U.S. 37, “actual litigated case[s],” Br. U.S. 35, “archetypical conduct,” Br. U.S. 19, and “real-world examples,” Br. U.S. 12. But the government’s admonition

about “legal imagination” is taken from cases that

3

have no bearing on this one. It also ignores the holding

in Descamps v. United States, 570 U.S. 254, 261 (2013)

in which the Court held, once again, that a proper

analysis focuses on “elements, not facts.” See also

United States v. Davis, 139 S. Ct. 2319 (2019) (same).

If Descamps, Davis, and other opinions taking the

same approach are to have any authority, and if there

is to be any distinction between the elements clause

and the unconstitutional residual clause, this recrudescence of ordinary case analysis warrants rejection.

Even if the Court finds that attempted Hobbs Act

robbery does not unambiguously fall outside the scope

of 18 U.S.C. § 924(c), the Court should apply the rule

of lenity because “ambiguities about the breadth of a

criminal statute should be resolved in the defendant’s

favor.” Davis, 139 S. Ct. at 2333. That is especially true

where, as here, mandatory minimum penalties are imposed under statutes that have vexed courts and litigants for nearly two decades.

ARGUMENT

I. THE GOVERNMENT ATTEMPTS TO FLOUT

THIS COURT’S HOLDING IN DAVIS AND

REVIVE THE UNCONSTITUTIONAL RESIDUAL CLAUSE.

Amici write to address the government’s flawed argument that lower courts, when analyzing elements

clauses, should ignore supposedly unlikely factual scenarios. Following this Court’s ruling in Davis, which

struck down § 924(c)’s residual clause as void for

vagueness, the categorical approach to the elements

clause provides the only way for a crime to constitute

a “crime of violence” under § 924(c)(3). A categorical

approach requires examining whether the elements of

a crime necessarily—that is, always—entail physical

force. That approach cannot be squared with ignoring

4

scenarios in which the elements of a crime could be

satisfied without physical force.

Rather than directly contend with the fact that the

elements of attempted Hobbs Act robbery do not necessarily require physical force, the government tries to

appeal to the likelihood of such a scenario. See Br. U.S.

36. This argument misapplies the law and skirts Davis

by attempting to use the ordinary case analysis when

applying the categorical approach to the elements

clause. The Court should reject the government’s backdoor attempt to reanimate the unconstitutional residual clause and uphold the Fourth Circuit’s ruling.

A. The categorical approach applied to §

924(c)’s elements clause looks solely to

what proof a statute of conviction necessitates.

Both parties agree that the touchstone for § 924(c)’s

elements clause is the categorical approach. That approach involves straightforward statutory interpretation. It requires courts “to look only to the fact of conviction and the statutory definition of the prior offense” to determine if it is a valid predicate. Taylor v.

United States, 495 U.S. 575, 602 (1990). When applied

to an elements clause, the approach asks “whether [a]

conviction necessarily ‘had, as an element,’” one of the

options specified in the relevant elements clause.

United States v. Castleman, 572 U.S. 157, 168 (2014)

(emphasis added); see also Borden v. United States,

141 S. Ct. 1817, 1820–22 (2021) (plurality opinion).

Here, those options are “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).

The inquiry thus centers on a potential predicate “offense’s elements, not the facts of the case” at hand—

or, for that matter, any other instance of the predicate

5

offense. Shular v. United States, 140 S. Ct. 779, 784

(2020). “If any—even the least culpable—of the acts

criminalized do not entail th[e] kind of force” specified

in the elements clause, “the statute of conviction does

not categorically match the” clause, and the offense of

conviction does not qualify as a valid predicate. Borden, 141 S. Ct. at 1822 (plurality opinion); see also

Johnson v. United States, 559 U.S. 133, 137 (2010)

(“[N]othing in the record of Johnson’s 2003 battery

conviction permitted the District Court to conclude

that it rested upon anything more than the least of

these acts.”).

Contrast the categorical approach to the elements

clause with the same approach to § 924(c)’s now-defunct residual clause. An offense qualified as a valid

predicate under the residual clause if it was a felony

and, “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). Applying the categorical approach to this clause in turn yielded what this

Court called an “ordinary case” analysis. See James v.

United States, 550 U.S. 192, 208 (2007), overruled by

Johnson v. United States, 576 U.S. 591 (2015).

“[J]udges had to disregard how the defendant actually

committed [the] crime. Instead, they were required to

imagine the idealized ‘ordinary case’ of the defendant’s

crime and then guess whether a ‘serious potential risk

of physical injury to another’ would attend its commission.” Davis, 139 S. Ct. at 2326 (cleaned up); see also

Johnson, 576 U.S. at 596 (noting the analysis “requires

a court to picture the kind of conduct that the crime

involves in ‘the ordinary case,’ and to judge whether

that abstraction presents a serious potential risk of

physical injury” (citation omitted)).

6

“Ordinary case” analysis in cases like this one, however, proved unworkable. It came to an end when the

Court held in Davis that § 924(c)’s residual clause was

void for vagueness. See 139 S. Ct. at 2336. The Court

reasoned that the “imposition of criminal punishment

can’t be made to depend on a judge’s estimation of the

degree of risk posed by a crime’s imagined ‘ordinary

case.’” Id. at 2326; see also Johnson, 576 U.S. at 600–

04 (invalidating the residual clause of the Armed Career Criminal Act (ACCA) on similar grounds). Section

924(c)(3)’s elements clause, therefore, now provides

the only criteria for an offense to qualify as a “crime of

violence.”

B. The government’s “legal imagination” aspersion has no place in applying the categorical approach to § 924(c)’s elements

clause.

The government concedes that the categorical approach applied to the elements clause “focus[es] on the

minimum conduct criminalized by a statute.” Br. U.S.

36 (citation omitted). But the concession comes with a

catch. Citing Gonzales v. Duenas-Alvarez, 549 U.S. 183

(2007), and Moncrieffe v. Holder, 569 U.S. 184 (2013),

the government asserts that analyzing potential predicate offenses under the elements clause “‘is not an invitation to apply “legal imagination,”’ but instead requires ‘a realistic probability, not a theoretical possibility,’ that the statute ‘would apply to conduct that

falls outside’ the relevant category of offenses.” Br.

U.S. 36–37 (cleaned up). Under this view, there is a

threshold “probability” below which potential factual

scenarios do not count for determining whether an offense “necessarily involves the defendant’s ‘use, attempted use, or threatened use of physical force.’” Borden, 141 S. Ct. at 1822 (plurality opinion); see also Castleman, 572 U.S. at 168.

7

But both Duenas-Alvarez and Moncrieffe (which

quotes Duenas-Alvarez) arose in different contexts

than the one here. Neither of those cases applied the

categorical approach to a federal crime as a potential

predicate offense. They instead applied it to: (1)

whether a state criminal offense; (2) necessarily falls

within a “generic” offense under federal law; (3) sufficient to result in immigration law consequences.

In Duenas-Alvarez, the issue was “whether the term

‘theft offense’”—a term the Court considered in the

“generic” sense—“includes the crime of ‘aiding and

abetting’ a theft offense.” 549 U.S. at 185. And in

Moncrieffe, in determining whether a conviction under

state law “qualifie[d] as an ‘aggravated felony’ under”

immigration law, the Court considered “whether ‘the

state statute defining the crime of conviction’ categorically fits within the ‘generic’ federal definition of a corresponding aggravated felony.” 569 U.S. at 190 (citation omitted). In both cases, the Court looked to state

court interpretations of the statutes at issue for definitive constructions—an exercise unnecessary where

the potential predicate is a federal crime. This Court

has thus never incorporated the “realistic probability”

and “legal imagination” language into: (1) an elements

clause analysis; (2) of a federal criminal offense; (3) resulting in a mandatory minimum sentence.

More fundamentally, however, the government’s

condemnation of “legal imagination” is no more than a

negative label for the logical reasoning that the categorical approach to the elements clause demands. The

government, in invoking Duenas-Alvarez and

Moncrieffe, asks this Court in essence to require a

criminal defendant to adduce the facts from his or her

case or from other cases. See Duenas-Alvarez, 549 U.S.

at 193 (“[H]e must at least point to his own case or

other cases in which the state courts in fact did apply

8

the statute in the special (nongeneric) manner for

which he argues.”).

The government’s proposal does not square with the

categorical approach’s instruction to consider only

what an offense “necessarily involves,” Borden, 141 S.

Ct. at 1822 (plurality opinion) (emphasis added), and

“to disregard how the defendant actually committed

his crime,” or any other defendant for that matter, Davis, 139 S. Ct. at 2326. That would invite judges to “reconstruct,” perhaps “long after the original conviction,

the conduct underlying” not just this defendant’s conviction but also an indefinite number of others. Johnson, 576 U.S. at 604. The Court rejected that notion as

“impracticab[le]” in the past and should do so now as

well. Id.

C. The government’s argument by anecdote

bears a fatal resemblance to “ordinary

case” analysis.

Faithful application of the categorical approach to

§ 924(c)’s elements clause can yield only one conclusion: Attempted Hobbs Act robbery is not categorically

a “crime of violence.” As the Fourth Circuit reasoned

below, because Hobbs Act robbery can be completed by

threats alone, attempted Hobbs Act robbery can be

completed with mere attempted threats, and attempted threats do not necessarily require proof of either “the use, attempted use, or threatened use of

physical force.” See United States v. Taylor, 979 F.3d

203, 208 (4th Cir. 2020).

Rather than deal head-on with non-violent attempted-threat robbery, however, the government’s

argument resurrects “ordinary case” analysis under

the residual clause by disguising it as a true elementsclause analysis. This evasion of controlling precedent

cannot succeed.

9

The government’s argument contains two of the distinctive features of “ordinary case” analysis, which illustrate the government’s attempt to revive the nowdefunct residual clause: (1) the idealization of an offense and (2) risk analysis. See, e.g., Johnson, 576 U.S.

at 604. (“The residual clause . . . requires application

of the ‘serious potential risk’ standard to an idealized

ordinary case of the crime.”).

First, the government claims that “much archetypical conduct in either completed or attempted robbery—e.g., rushing into a convenience store armed to

the teeth, or discharging a gun into the air—could easily be described as involving any or all of ‘the use,’ ‘attempted use,’ or ‘threatened use’ of force.” Br. U.S. 19

(emphasis added). It argues that the Fourth Circuit’s

analysis of “pure ‘attempted threat’ cases” should be

rejected because “the court of appeals failed to identify

any actual litigated case fitting that description. And

given the requirements of Hobbs Act robbery and attempt liability, the pure ‘attempted threat’ cases envisioned by the Fourth Circuit are implausible at best.”

Id. at 35 (emphasis added). It also marches out a litany

of “real-world examples,” id. at 28, and various hypotheticals to show how attempted robbery could include

the use of force. Id. at 12.

When courts idealized the “ordinary case” of an offense under the residual clause, they might have considered “archetypal conduct.” They might have considered the frequencies of the different ways the offense

has been and might be committed. But when applying

the categorical approach to the elements clause, these

considerations are “neither here nor there.” Borden,

141 S. Ct. at 1832 (plurality opinion). Elements-clause

analysis requires considering solely whether a conviction necessarily entails “the use, attempted use, or

threatened use of physical force.” Again, “[i]f any—

10

even the least culpable” or, amici posit, even the least

likely—“of the acts criminalized do not entail that kind

of force, the statute of conviction does not categorically” constitute a valid predicate. Id. at 1822. Logical

reasoning and attention to statutory text are not improper exercises of “legal imagination” and are certainly preferable to the government’s suggestion that

courts allow “cherry picking” instead.

Second, the government argues that “attempts to

commit certain felonies are often more violent than the

completed felonies.” Br. U.S. 27. A court might have

considered how “often” an offense was more or less violent when performing risk analysis under the residual clause. But again, that clause is dead, and the government’s assertion is no answer to whether a conviction for an offense necessarily entails “the use, attempted use, or threatened use of physical force.”

The Court should not tolerate this attempt to skirt

the consequences of Davis. If Davis is to have any consequence, and if there is to be any distinction between

the elements clause and the now-defunct residual

clause, it must reject the government’s arguments.

The Court expressly acknowledged Congress’s power

to amend the residual clause to address its vagueness

flaw or mandate something other than the categorical

approach. See Davis, 139 S. Ct. at 2336 (stating that

“[o]f course, too, Congress always remains free to adopt

a” new approach by amending the statute). In the

meantime, the government here repackages and proffers a residual-clause analysis like a “ghoul in a latenight horror movie that repeatedly sits up in its grave

and shuffles abroad, after being repeatedly killed and

buried,” frightening defendants with the threat of

mandatory minimum sentences. Lamb’s Chapel v. Ctr.

Moriches Union Free Sch. Dist., 508 U.S. 384, 398

11

(1993) (Scalia, J., concurring). Its resurrection conveniently permits the government to depict for sentencing

courts what is “archetypal,” “real-world” and “realistically probable.” Legal imagination indeed.

II. THE RULE OF LENITY REQUIRES HOLDING THAT ATTEMPTED HOBBS ACT ROBBERY IS NOT A “CRIME OF VIOLENCE”

The lack of daylight between the government’s argument and “ordinary case” analysis under the now-defunct residual clause is reason enough to reject its position—to say nothing of the reasons that the respondent and other amici offer. Regardless of the merits of

those arguments, it is at minimum ambiguous

whether “crime of violence” encompasses attempted

Hobbs Act robbery, or, indeed, the attempt to commit

any object offense that may be completed by threats

alone. Certainly this case, if any, is an instance where

the rule of lenity should apply, given that the competing analytical approaches here are far from the understanding of a lay person. Both lenity’s plain directive

and its underlying purposes require that the Court reject the government’s argument.

A. Section 924 is at best ambiguous about

what constitutes a valid predicate offense.

The rule of lenity applies where there are “ambiguities about the breadth of a criminal statute.” Davis,

139 S. Ct. at 2333. 2 Here, each of the elements clause’s

2Occasionally, this Court has required a criminal statute to possess “grievous ambiguity” before the rule of lenity applies. Shular, 140 S. Ct. at 788 (Kavanaugh, J., concurring). This idea is a

deeply flawed and recent judicial creation. While the ambiguity

standard for the rule of lenity dates back centuries, the idea of

“grievous ambiguity” arose in Chapman v. United States, 500

U.S. 453, 463 (1991) (quoting from Huddleston v. United States,

12

three components suffers from ambiguity. The government first argues that “the phrase ‘use of physical force

. . . ’” includes “inchoate or indirect uses, as well as direct applications, of physical force.” Br. U.S. 20 (citations omitted). The respondent replies that “use” entails only “the actual deployment of force,” whereas the

other two components of the clause cover inchoate and

communicated intents to use force. Br. Resp. 20. The

government then contends that “threatened use of

force” means an “objective manifestation” that “conveys the notion of an intent to inflict harm,” including

the requisite substantial step in any attempt charge.

Br. U.S. 11, 23 (citation omitted). The respondent answers that “threatened” means something else: “a communicated intent to inflict harm.’” Br. Resp. 22 (emphasis added). Finally, the government posits that “attempted use” “includes all attempts to commit crimes

otherwise covered by the elements clause.” Br. U.S. 21.

The respondent in turn notes that the statute speaks

not of “attempts to commit a crime of violence” but of

the “attempted use . . . of physical force.” Br. Resp. 28

(quoting 18 U.S.C. § 924(c)(3)(A)).

At best, attempted Hobbs Act robbery falls short of

“conduct clearly covered” by the elements clause.

United States v. Lanier, 520 U.S. 259, 266 (1997); see

also Toussie v. United States, 397 U.S. 112, 122 (1970)

(“[I]t is appropriate, before we choose the harsher alternative, to require that Congress should have spoken

415 U.S. 814, 831 (1974)). Justice Scalia cautioned that, without

careful application, the rule of lenity could transform from a “presupposition of our law” to “a historical curiosity.” Holloway v.

United States, 526 U.S. 1, 21 (1999) (Scalia, J., dissenting). If the

rule of lenity does not apply in a case like this one—where attempts to construe and apply the statutory phrase “violent felony”

have so vexed the courts, the Bar and scholars—then it really has

been relegated to the status of an “historical curiosity.” Shular,

140 S. Ct. at 786 (Kavanaugh, J., concurring).

13

in language that is clear and definite.” (citation omitted)). Straightforward application of the rule of lenity

therefore requires concluding that the offense is categorically not a “crime of violence.”

B. The rule of lenity’s purposes apply with

force here.

Lenity is founded on two rationales: “‘the tenderness

of the law for the rights of individuals’ to fair notice of

the law” and “the plain principle that the power of punishment is vested in the legislative, not in the judicial

department.” Davis, 139 S. Ct. at 2333 (quoting United

States v. Wiltberger, 18 U.S. 76, 95 (1820)); see also Lanier, 520 U.S. at 265–66, n.5.

Each is implicated here. The government’s expansive interpretation of § 924(c)(3)’s elements clause

does not give fair notice to would-be defendants of the

law’s limits. It would permit the government to tack

on an extra charge for an attempt to commit a “crime

of violence,” even where the attempt itself does not

strictly involve, as the text of the statute demands,

“the use, attempted use, or threatened use of physical

force.” 18 U.S.C. § 924(c)(3)(A).

That outcome is unfaithful to the idea of notice.

“[F]air warning,” after all, “should be given to the

world in language that the common world will understand, of what the law intends to do if a certain line is

passed.” United States v. Bass, 404 U.S. 336, 348

(1971) (quoting McBoyle v. United States, 283 U.S. 25,

27 (1931).

Nor does the government’s proffered interpretation

respect the separation-of-powers principle undergirding the rule of lenity. When this Court held just two

years ago in Davis that § 924(c)(3)’s residual clause

was unconstitutionally vague, it observed that Congress could revise the statute in any number of ways—

14

but the Court was resolute that it “is not in the business of writing new statutes” itself. 139 S. Ct. at 2336;

see also United States v. Rentz, 777 F.3d 1105, 1113

(10th Cir. 2015) (Gorsuch, J.) (“Congress is free . . . to

amend § 924(c)(1)(A) . . . [b]ut unless and until it does,

we will not relegate men and women to prison . . . because they did something that might—or might not—

have amounted to a violation of the law as enacted.”).

Congress has yet to act.

C. Application of lenity is particularly important for mandatory minimum sentences.

The Court has consistently cautioned against adopting expansive interpretations of criminal statutes carrying significant mandatory minimum sentences, like

§ 924(c). See Davis, 139 S. Ct. at 2323–24; Begay v.

United States, 553 U.S. 137, 146–47 (2008), abrogated

by Johnson v. United States, 576 U.S. 591 (2015); see

also Bifulco v. United States, 447 U.S. 381, 387 (1980)

(“[The rule of lenity] applies not only to interpretations

of the substantive ambit of criminal prohibitions, but

also to the penalties they impose.”). And caution is

warranted here: § 924(c)’s “crime of violence” offense

carries with it a minimum sentence ranging from five

years to as much as thirty years, depending on the type

of firearm used, the degree of its involvement, and the

existence of prior convictions. See 18 U.S.C.

§ 924(c)(1).

The mandatory minimum context presents a toxic

combination of high cost and less-than-artfully drafted

statutes. Mandatory minimum sentencing statutes often use “sweeping and imprecise language” that “set[s]

up a host of vexing constitutional and statutory interpretation questions for the court.” Rachel E. Barkow,

Categorical Mistakes, 133 Harv. L. Rev. 200, 202

15

(2019). Besides the residual clauses found unconstitutionally vague in Davis and Johnson described above,

this Court has described as “unclear” a different portion of § 924(c) that imposed a 30-year mandatory minimum sentence for possessing a machinegun while

committing certain crimes. United States v. O’Brien,

560 U.S. 218, 227, 229 (2010). In United States v.

Granderson, the Court found another mandatory minimum provision did not “appear[] … to have received

Congress’ careful attention.” 511 U.S. 39, 42 (1994).

The rule of lenity, “as a sort of ‘junior version of the

vagueness doctrine,’” Lanier, 520 U.S. at 266 (quoting

H. Packer, The Limits of the Criminal Sanction at 95),

is a useful tool for ensuring the Court does not enforce

Congress’s linguistic errors on a presumptively free

people.

Further, mandatory minimum provisions often are

said to reflect (at least in theory) the moral judgment

of the community that particular conduct deserves

harsher punishment. In our system of government,

that judgment is reserved to the legislature. The rule

of lenity ensures that criminal sentences actually reflect legislative judgment, rather than guesswork by

the courts about what the legislature meant. See

Granderson, 511 U.S. at 69 (Kennedy, J., concurring

in the judgment) (“[B]ecause criminal punishment

usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity, and set the punishments therefor.”)

(quoting Bass, 404 U.S. at 348) (citation omitted);

United States v. R.L.C., 503 U.S. 291, 309 (1992)

(Scalia, J., concurring in part and concurring in the

judgment) (describing one of “the rule of lenity’s . . . purpose[s]” as “assuring that the society,

through its representatives, has genuinely called for

the punishment to be meted out”); United States v.

16

Wiltberger, 18 U.S. 76, 95 (1820) (explaining that

“[t]he rule that penal laws are to be construed strictly”

is founded not merely on “tenderness of the law for the

rights of individuals” but also on the “plain principle

that the power of punishment is vested in the legislative, not in the judicial department”). Any criminal

statute presents these concerns, but mandatory minimum provisions make them particularly weighty.

Unlike other criminal laws, mandatory minimums

are exceptions to the principle that courts should “impose a sentence sufficient, but not greater than necessary,” to accomplish the goals of criminal punishment

after considering “the nature and circumstances of the

offense and the history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). A mandatory minimum is a congressional directive to subordinate justice

in individual cases to a perceived need for greater deterrence or incapacitation generally. Congress may

choose to make that tradeoff (within constitutional

bounds), but the courts should ensure that Congress

has actually made that choice before imposing needlessly harsh punishments. Cf. Busic v. United States,

446 U.S. 398, 409 (1980) (interpreting a sentencing enhancement; rejecting the “assumption that . . . Congress’ sole objective was to increase the penalties . . . to the maximum extent possible”).

The adverse consequences of erroneously expanding

mandatory sentencing beyond the limits of the statutory language affect more than just individual defendants. Such errors strike at the foundations of the sentencing system by undermining “sentencing proportionality—a key element of sentencing fairness.” Harris v. United States, 536 U.S. 545, 571 (2002) (Breyer,

J., concurring in part and concurring in the judgment),

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

(2013). As the Sentencing Commission—quoted with

17

approval by this Court—has explained: “‘The ‘cliffs’

that result from mandatory minimums compromise

proportionality, a fundamental premise for just punishment, and a primary goal of the Sentencing Reform

Act.’” Neal v. United States, 516 U.S. 284, 292 (1996)

(quoting United States Sentencing Commission, Special Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System 26 (Aug.

1991)).

By contrast, the costs of erroneously construing a

mandatory minimum provision too narrowly are relatively low, both for individual cases and for the criminal justice system as a whole. In cases that fall outside

the scope of a mandatory minimum, but that nevertheless feature aggravating circumstances similar to

those that moved Congress to impose the minimum, a

sentencing judge still has discretion (guided by

§ 3553(a) and the sentencing guidelines) to impose a

more severe sentence. As Justice Breyer explained in

United States v. Dean, “an interpretive error on the

side of leniency[] still permits the sentencing judge to

impose a sentence similar to, perhaps close to, the statutory sentence even if that sentence . . . is not legislatively required.” 556 U.S. 568, 584 (2009) (Breyer, J.,

dissenting).

Moreover, “an error that excludes (erroneously) a set

of instances Congress meant to include . . . could lead

the Sentencing Commission to focus on those cases . .

. [and] make available to Congress a body of evidence

and analysis that will help it reconsider the statute.”

Id. at 585. Those who bring actions under the criminal

laws (the executive branch) have far greater access to

those who create them (the legislative branch) than do

those who defend against such actions (potential criminal defendants). In light of this practical reality, the

rule of lenity “places the weight of inertia upon the

18

party that can best induce Congress to speak more

clearly.” United States v. Santos, 553 U.S. 507, 514

(2008) (plurality opinion).

The penalties that people like Justin Eugene Taylor

face are “serious[]” and reflect “the moral condemnation of the community.” Bass, 404 U.S. at 348. Lenity

demands that the Court select a harsher interpretation of § 924(c) only if Congress has spoken “plainly

and unmistakably.” Id. (citation omitted). This principle “embodies ‘the instinctive distastes against men

languishing in prison unless the lawmaker has clearly

said they should.’” Id (citation omitted). Here, Congress has not. Due process demands “language that

the common world will understand.” Bass, 404 U.S. at

348 (quoting McBoyle, 283 U.S. at 27 (Holmes, J.)). If

the rule of lenity, a “venerable” canon of statutory construction, R.L.C., 503 U.S. at 305 (plurality opinion),

is ever to protect laypeople from the leviathan of the

law, it is in this case. The Court should therefore hold

that attempted Hobbs Act robbery is not a “crime of

violence.”

19

CONCLUSION

For the foregoing reasons the judgment of the court

of appeals should be affirmed.

Respectfully submitted,

MARY PRICE

General Counsel

FAMM

1100 H Street, N.W.

Washington, D.C. 20005

(202) 822-6700

JEFFREY T. GREEN*

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

jgreen@sidley.com

XIAO WANG

JOSHUA KLEINFELD

NORTHWESTERN SUPREME

COURT PRACTICUM

375 E. Chicago Avenue

(312) 503-1486

Counsel for Amici Curiae

October 29, 2021

* Counsel of Record