Petitioners Briefpp — United States v. Davis, 139 S. Ct. 1238 (2019) (No. 18-431)

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No. 18-431

In the Supreme Court of the Anited States

UNITED STATES OF AMERICA, PETITIONER

uv.

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. BENCZKOWSKEI

Assistant Attorney General

ERIC J. FEIGIN

ERICA L. Ross

Assistants to the Solicitor

General

ROBERT A. PARKER

JOHN P. TADDE!

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@ usdo)j. gov

202) 514-2217

QUESTION PRESENTED

Whether the subsection-specific definition of “crime

of violence” in 18 U.S.C. 924(¢)(3)(B), which applies only

in the limited context of a federal criminal prosecution

for possessing, using, or carrying a firearm in connec-

tion with acts comprising such a crime, is unconstitu-

tionally vague.

(I)

TABLE OF CONTENTS

Page

I I caseessccscnissivensionetiiinsbitniisicsanidivenenimmatianminaeniintion |

ll ciinniiccsinsrinaierecinmrcsmsiabiitamsdatasinceinaiaiaiemnteiniesamminnneaminetans 1

Constitutional and statutory provisions involved 1

Statement:

A Respondents’ offense CONdUCt ...........000scereeeereeees 3

B. Respondents’ criminal prosecution...............0++ 6

C. Respondents’ initial appeal and petitions

Sai PRED GE Gai aceoccntscscicsnesensennesnpsccecesennsseenses 9

D. The court of appeals’ decision on remand........... 13

I OE CII, cnsccnsenccececsressncentereneseprareseinacsacesesnneceneenncee 14

I cescnsiestrctttiornminnssnnsinasmnsnmaneanmimeneisresseesesie 18

I. The definition of a “crime of violence” in

18 U.S.C. 924(c)(8)(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)........cssseresersssesessessseeees 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

nO 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 .........0000e0seeeereees 33

1. Decisions adopting the categorical

approach in the prior-conviction context

have anachronistically influenced the

interpretation of Section 924(c)(3)(B)........... 34

(IIT)

Table of Contents—Continued: Page

2. The adoption of the categorical approach

in the prior-conviction context reflects

practical and constitutionai 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 cireumstance-specific approach ... 44

Il. Respondents’ Section 924(c) convictions are valid

because a jury necessarily would have found that

their conduct involved a “substantial risk” of

ES TOTO scircccsnissetaitninnsnnnticsnmnsntmnenntniinnmnnene 53

CORNERED, ccconmssnensinestacpessvtsucssssesangencenseeieuisasenseenianinscamensseneeies 55

Appendix — Constitutional and statutory provisions .......... la

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,

ls ee ED ccncariteineteecnsanitastivintbittinnsnasncceneennceneneees 45

Bousley v. United States, 523 U.S. 614 (1998)... 53

Braverman v. United States, 317 U.S. 49 (1942) «0.0... 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,

es a ne Ie erteiietctctpnreniecnetnertecersensntcomen scenes 45

Curtis Johnson v. United States, 559 U.S. 133 (2010)....... 48

Davis v. Michigan Dep't of the Treasury,

a ee Se ettterintnieertnenitimnnmncnnen 25

Deal v. United States, 508 U.S. 129 (1998) ......ccccceeseeenees 9

DePierre v. United States, 564 U.S. 70 (2011)... 22

Descamps v. United States, 570 U.S. 254 (2013).......00000 43

Cases—Continued: Page

Dowling v. United States, 493 U.S. 342 (1990) .......cccccceeeee 31

INS v. St. Cyr, 533 U.S. 289 (2001) ......esssecsessssessssesnereensees 45

James v. United States, 550 U.S. 192 (2007),

overruled by Johnson v. United States,

Es Ce Bae ee crc scesenenctnnsvtscsnsstpesssernccremese 38, 39, 45

Jennings v. Rodriguez, 138 8. Ct. 830 (2018) ........cccccceeeee 45

Johnson v. United States, 135 8S. Ct. 2551 (2015)...... passim

Jones v. United States, 526 U.S. 227 (1999)......0e0 48, 49

Kawashima v. Holder, 565 U.S. 478 (2012) .....cccccccceeseeeeees 29

Leocal v. Ashcroft, 543 U.S. 1 (2004) ......ccccccceceeseesenseeees 32, 38

Mathis v. United States, 136 S. Ct. 2243 (2016) .........00000 40

Moncrieffe v. Holder, 569 U.S. 184 (2013) ........cccccccceeeeees 40

Neder v. United States, 527 U.S. 1 (1999) ......ccccccesecseeeeees 58

Nijhawan v. Holder, 557 U.S. 29

ee cccnscencacunsnnsianpnessstnipstnceinisncesstonemane 16, 20, 26, 27, 29, 41

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

CORR Ce, Fa csccecscsssnnscessemncescesesencsceet 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 (Gth Cir. 2006) ..........sssesssssrseseseeesenseseseeees 39

Roberts v. Sea-Land Servs., Inc., 566 U.S. 93 (2012)......... 25

Schware v. Board of Bar Exam’rs, 353 U.S. 232

SERRE er erise =n Se aan a 30

Sessions v. Dimaya, 138 8. Ct. 1204 (2018)... passim

Shepard v. United States, 544 U.S. 13 (2005)......... 32, 40, 43

Shuti v. Lynch, F.3d 440 (6th Cir. 2016),

cert. denied, 138 S. Ct. 1977 (2018) .......cccccccseeseesereesesenees 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,

ee es ee IRIE setteieccceccctinsccssenstntnsensetrcorseresntes 38, 45

Cases —Continued: Page

TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443

CRIED coccsccsensecssscrcsesussassinnbuanicentintesntentunnnenesienniinannetin 31

Taylor v. United States, 495 U.S. 575

(BIE ccorsossvecemessrennscsneseeenanssenienniiiiipsenses 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

nS Te, Bi i iovsntesccnsatanctecenssasentnctsensincsnccsiccveitnn passim

United States v. Benally, 843 F.3d 350

aa Gy Fre scncceictncenrtsctanrnicnenbisiitintienitcnnmenncnininiiins 39

United States v. Bushey, 617 F. Supp. 292

CBD. FR, Be ecesnsnsennsanstennsinsnsinetpsnaisnsacsinatnpiniatenphiernitanis 36

United States v. Credit, 95 F.3d 362 (5th Cir. 1996),

cert. denied, 519 U.S. 1138 (1997) ......csssseseesnsersesseeeseneees 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) ........0 37

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

(1st Cir. 2018), petition for cert. pending,

No. 18-7331 (filed Jan. 7, 2019) ......csceseeseesereeeeneens 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).......ssssssssssssssssrsesseesensesees 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) .......ssssesensenerseereneenens 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

CEI, GRR. BFE cxsecscnseserinsensevnsscttnctncecetscenesvennienenninitianiesiti 39

Vil

Cases—Continued: Page

United States v. Mendez, 992 F.2d 1488 (9th Cir.),

cert. denied, 510 U.S. 896 (1998) ........ccccccceseeesereerneeeeeeee 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) .........ccccccceeseeeereensernennes 54

United States v. Reid, 517 F.2d (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

Freie etrasetenanscnesasenstesnenescsesrececnnsasosseceanscesesecevssscssesesesces 19, 20

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

petition for cert. pending, No. 18-428

a ith STEED cictcrsinsscenesiecnasesesnsnsennsosvsessccesecnsescsnesecsseeeess 51

United States v. Simms, No. 15-4640,

2019 WL 311906 (4th Cir. Jan. 24, 2019) «0.0.0.0... 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) .........cccccccccreerseeeeseeeeeereeneneeees 41

United States v. Stephens, 964 F.2d 424

GE I : ciccesiescenanseccucsenivnssnensnensconscnesceccsscscescsnescessensees 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 (2008) ............... 38

United States v. Williams, 343 F.3d 423 (5th Cir.),

cert. denied, 540 U.S. 1098 (2008) .0.......ccccccccceseeeeeeeeeennens 39

United States ex rel. Attorney Gen. of U.S. v.

Delaware & Hudson Co., 213 U.S. 366 (1909) «00.0.0... 45

Welch v. United States, 136 8. Ct. 1257 (2016) ................. 52

Yates v. United States, 135 8. Ct. 1074 (2015) ......cccceceeseeees 32

Vill

Constitution, statutes, guideline, and rule: Page

U.S. Const.:

FS a eee 45, 48, la

PS, .11, 38, 42, 43, 44, 47

Armed Career Criminal Act of 1984,

18 U.S.C. 924e):

Cg 54, 6a

18 U.S.C. G24(e)2)(B) (i) .......-0-eeceserenesrnenennes 8, 16, 38, Ga

Comprehensive Crime Control Act of 1984,

Pub. L. No. 98-473, Tit. 11, 98 Stat. 1976 ..............cccccccceee 28

Ch. X:

(G3) —_—EU 35

Pt. D, § 1006(a), 98 Stat. 2138 .0..........eccecceeceesseeeeees 35

Firearms Owners’ Protection Act,

Pub. L. No. 99-308, 100 Stat. 449:

Po es 37

§ 104(aN2KC), 100 Stat. 457 ............cccccccersensscereessenesenes 37

§ 104(aX(2)(F’), 100 Stat. 467 2... ce ccccceesceeseeeneeneee 34, 37

§ 108, 100 Stat. 460 37

First Step Act of 2018, Pub. L. No. 115-391

(Dee. 21, 2018) a y

§ 403(a)-(b) 9

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

Tit. 1, § 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

a 3, 6,7

a 16, 35, 36, 37, 39, la

ee passim, la

Statutes, guideline, and rule—Continued: Page

Be te Ge crennspecseseecimnceseneasessemensenensnscseeunes 28

BB UTES, GERD occecnscsccnsscczccssescenssecesnensesnensscsnssscsenessene 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. GT0(D)(2)(A) ...2--..cecececeenenenenenees 28

BB UBB. BOGED cccccsessncsvssescsescsnscsncercavessesnsnacssessessnssesseneses 31, 51

18 U.S.C. G21 aNBB)A) ......-.-rececenenenenensnentnensennnnnennnennee 27

I Se ic centencercnscreicecsennsscsnennesmsensessmusenion 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(e)(1)(A)...... weedy 1, 20, 21, 2a

18 U.S.C. 924(e)(1 (Ai) 2, 3a

18 U.S.C, 924(e) 1 (Ai) 2, 8, 3a

18 U.S.C. 924(e)(1 (Ail) 2, 3a

18 U.S.C. 924(e)(1)(B(i) 3, 7, 8, 3a

18 U.S.C. 924(e)(1 (Ci) (2012) 3, 7, 8, 3a

18 U.S.C. 924(e)(1)(Cii) (2012) 28, 3a

18 U.S.C. 924(e)(2) 21, 4a

18 U.S.C. 924(e)(3) -passim, 4a

18 U.S.C. 924(e(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. 1085(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. 1969(a) .......0-0ces-0evenees 52

Statutes, guideline, and rule—Continued: Page

III ii iciinisesatitbnedseneinbileienbibiatainamemndansmenaiiasniias 52

ET ee ee Seen 52

I iat oictnrrncsiicanaillteinniinentiialieiteensitial 28

aan NN 28

| ETC eae EN aR TET: 29

fk een Ter 22

CREME 30

18 U.S.C. 3592(e)(4) .........-..++- = 30

18 U.S.C. B692(C)(G) ...........c.cceeeee silicaainhciinidsiaitaatiiampdial 29

21 U.S.C. 841(a) sansitiiiiendinnicagaa 21

Be irate ininiteerceneninisieniatagnnrinmneinenemnntiieattinventanties 24

Ala. Code § 13A-6-24(a) (LexisNexis 2015).............ccccc000 23

Alaska Stat. § 11.41.250(a) (2016) ...0.......cccccccccceceeseeeeeeeeenenes 23

Ariz. Rev. Stat. Ann. § 13-1201(A) (2010) 23

Ark. Code Ann. § 5-13-205(a)(1) (2013) 23

Conn. Gen. Stat. Ann. § 58a-111(a)(4) (West 2012)............ 24

Ind. Code Ann. § 35-43-4-2(a)(2)

(LexisNexis Supp. 2018) .............c.csssssesessesessensseeeseeseenes 24

lowa Code Ann. § 709.3(1)(a) (West 2016) .............0ceeeeees 24

Md. Code Ann., Crim. Law § 3-1001(c)

(LexisNexis Supp. 2018) ..........ccsssssssecsssersesssseeseesseseeeenees 24

Mass. Ann. Laws ch. 265, § 13L (LexisNexis 2010)........... 24

N.D. Cent. Code § 12.1-17-O08 (2012) ............cccceeesersenseeerees 23

N.Y. Penal Law § 120.20 (McKinney 2009) 23

Utah Code Ann. § 76-5-301(1)(b) (Lexis Nexis 2017).......... 24

United States Sentencing Guidelines § 4B1.2,

comment. (n.1) (1987) 36

PN: Ci, Ss GE hnienarerentnrceeernnicnpneninmnsemmenssotituiccnstbie 54

Miscellaneous: Page

H.R. Rep. No. 495, 99th Cong., 2d Sess. (1986)............000 37

2 Wayne R. LaFave, Substantive Criminal Law

CBE 6b. BIBI ocacccccecccscscavesvssscssesrenscenessenscessenesecsooszssscsocssecoces 50

Oxford Dictionary of English (3d ed. 2010) ........cceee 30

S. 756, 115th Cong., 2d Sess. (2018) ...........crrreenenensnensesenees 9

S. Rep. No. 307, 97th Cong., Ist Sess. (1981)..........ce0 35

S. Rep. No. 225, 98th Cong., Ist 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-federal-

Judiciarry/2018/06/30 ............c.ccscsssssscsessesessersssnesseessesensneeneees 49

Webster’s Third New International Distinaty

In the Supreme Court of the United States

No. 18-431

UNITED STATES OF AMERICA, PETITIONER

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 juris-

diction 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)

(c)(1)A) Except to the extent that a greater min-

imum sentence is otherwise provided by this subsec-

tion 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 dan-

gerous 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 sen-

tenced 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.

“fe eK

Other pertinent constitutional and statutory provi-

sions are reproduced in the appendix to this brief. See

App., infra, la-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 shot-

gun during a crime of violence, in violation of 18 U.S.C.

924(c)(1)(B)(i), 2, and 18 U.S.C. 924(e)(1)(C)(i) (2012).

C.A. ROA (ROA) 269; Davis Am. Judgment 1. The dis-

trict court sentenced Glover to 498 months of imprison-

ment, 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 af-

firmed. Pet. App. 10a-17a. This Court granted respond-

ents’ petitions for writs of certiorari, vacated the judg-

ment of the court of appeals, and remanded for further

consideration in light of Sessions vy. Dimaya, 138 S. Ct.

1204 (2018). Pet. App. la-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 la-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

(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 short-

barreled 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 en-

tered 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

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.” /bid. The rob-

ber 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 conven-

ience store in Mansfield, Texas. ROA 433-438; Gov't

C.A. Br. 5. One of the robbers got out, pointed a short-

barreled shotgun at an employee, Olivia Gaytan, and or-

dered her to go into the store’s storage room. ROA 432-

433, 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 rob-

ber 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

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 re-

spondents, 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 danger-

ous 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 eash. 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 shoty .1, several shotgun

shells, the bank deposit bag with c. sh from the fourth

robbery, and articles of clothing that matched items

worn by the robbers. ROA 571, 576-579, 585-590, 592-

599. Davis later admitted his involvement in the third

and fourth robberies but claimed that “[anJother per-

son” had carried the gun. ROA 634; see ROA 630, 683-

636. 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

during a crime of violence, in violation of 18 U.S.C.

924(c)(1)(B)(i), 2, and 18 U.S.C. 924(¢)(1)(C)(i) (22).

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 Sec-

tion 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 ap-

plicable only “(flor 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 ele-

ment the use, attempted use, or threatened use of phys-

ical foree against the person or property of another.”

18 U.S.C. 924(e)(3)(A). Section 924(c)(3)(B) alternatively

includes any offense “that by its nature, involves a sub-

stantial risk that physical force against the person or

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

ting the offense.” 18 U.S.C. 924(¢)(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 vio-

lence, 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,

135 S. Ct. 2551 (2015). See ROA 87-94. In Johnson, the

Court had invalidated on vagueness grounds the resid-

ual 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 in-

volves 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 1368-

1370. For the Section 924(c) charges, the jury made

special findings that respondents brandished (or aided

and abetted the brandishing of) a short-barreled shot-

gun during each crime of violence. /bid.; see 18 U.S.C.

924(c)(1)(A)(ii) and (B)(i) (enhanced penalties for bran-

dishing a firearm and possessing a short-barreled shot-

gun). 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 imprison-

ment. Davis Am. Judgment 2.’

' At the time of respondents’ sentencing, Section 924(c) provided

for enhanced minimum penalties for defendants convicted of multi-

ple violations in a single proceeding. See 18 U.S.C. 924(e)(1)(C)(i)

C. Respondents’ Initial Appeal And Petitions For Writs Of

Certiorari

1. The court of appeals affirmed respondents’ con-

victions and sentences. Pet. App. 10a-17a. The court

rejected respondents’ renewed constitutional challenge

to Section 924(c)(3)(B). Jd. 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 lin-

guistically 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 ques-

tion 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 govern-

ment’s appellate brief, in addition to noting that Glover's

proposed construction was foreclosed by circuit prece-

dent, 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 8. 756, 115th Cong., 2d Sess. (2018)), Congress limited the ap-

plieability of the enhanced minimum penalties, in cases where a sen-

tence “ha[d] not been imposed” before the Act’s enactment, to vio-

lations of Section 924(c) that “occur|] after a prior conviction under

[Section 924(c)] has become final.” § 403(a)-(b).

or threatened use of force or posed a substantial risk

that foree 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.” /d.

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. la. While respondents’ petitions

were pending, this Court decided Sessions v. Dimaya,

supra, which held that the definition of a “crime of vio-

lence” in 18 U.S.C. 16(b), as incorporated into the re-

movability provisions of the Immigration and National-

ity 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 of-

fense 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 cireum-

stances that include the classification of prior convic-

tions (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

two features,” “combined in the same constitutionally

problematic way,” that had led the Court to find the

ACCA’s residual clause unconstitutionally vague in John-

son. Dimaya, 138 8. Ct. at 1213. The first feature was

a “categorical approach” to the crime-of-violence in-

quiry, 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. /d. at 1211, 1215. The

second feature was “uncertainty about the level of risk

that makes a crime ‘violent.’” /d. 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 real-

world conduct,’” rather than to “‘a judge-imagined ab-

straction.’” Jd. at 1215-1216 (quoting Johnson, 135 S. Ct.

at 2558, 2561).

Although the Court’s holding in Dimaya was prem-

ised 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.” /d. at 1216 (citations omitted).

But it concluded that, in the context of Section 16(b), the

canon did not counsel a cireumstance-specific approach

that would examine “the risk posed by a particular de-

fendant’s particular conduct,” because such an approach

“would merely ping-pong us from one constitutional is-

sue to another.” /d. at 1216-1217. The plurality ex-

plained that the categorical approach was itself de-

signed in part to avoid Sixth Amendment concerns that

would arise from judicial factfinding about the details of

prior convictions in certain sentencing contexts to which

Section 16(b) applies. /bid. The plurality also took the

view that, “[iJn any event,” Section 16(b)’s text is “[bJest

read” to “demand|] a categorical approach.” /bid.

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” Sec-

tion 16(b), employs a categorical approach because “no

party” had argued against that approach; precedent

“seemingly require[d]” it; and the government had “re-

peatedly” acknowledged the propriety of such an ap-

proach. /bid. 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. /d. 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 un-

derlying, real-world conduct of the alien’s prior offense.

Dimaya, 138 S. Ct. at 1254-1259. Justice Thomas ex-

plained 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 cate-

gorical 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.

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 cat-

egorical 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 interpre-

tation “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 clas-

sification 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) prosecu-

tion. Jd. at 6. The government pointed out that Section

924(c)(3)(B), unlike Section 16(b) or the ACCA’s resid-

ual clause, is never applied to classify prior convictions

and is instead confined only to the conduct for which a

defendant is currently being prosecuted. /d. at 10-11.

And the government explained that the failure to sub-

mit 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 in-

volved a substantial risk that force may be used during

commission of the conspiracy” to commit Hobbs Act

robbery. /d. 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 in-

stead struck down Section 924(c)(3)(B) as impermissi-

bly vague. Pet. App. 5a. The court adhered to circuit

precedent applying an ordinary-case categorical ap-

proach to Section 924(c)(3)(B) and concluded that the pro-

vision, so construed, is unconstitutional in light of Di-

maya. Id. at 4a-5ba. 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. /d. at 4a, 6a. Judge Hig-

ginbotham concurred in the vacatur of the convictions, but

wrote separately to object to the court’s failure to remand

for a full resentencing. /d. 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 unconstitu-

tionally vague under Sessions v. Dimaya, 138 8. Ct.

1204 (2018). Section 924(c)(3)(B)’s subsection-specific

definition of “crime of violence” applies only to the con-

duct for which the defendant is currently being prose-

cuted, 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 circumstance-

specific determination about whether that actwal of-

fense conduct—not the conduct of a hypothetical de-

fendant in an “ordinary case”—-satisfies the substantial-

risk 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 ap-

proach would raise serious constitutional questions un-

der 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

would have found that respondents’ armed-robbery con-

spiracy “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(¢)(3)(B), their vacated convictions should

be reinstated.

I. This Court’s decisions in Dimaya and Johnson

“dlid] not doubt” that a provision requiring a jury find-

ing beyond a reasonable doubt about the “substantial

risk” created by a defendant’s own “real-world conduct,”

would be fully constitutional. Dimaya, 138 8S. Ct. at 1215

(quoting Johnson, 135 S. Ct. at 2561). As the govern-

ment and several courts of appeals have recognized af-

ter Dimaya, Section 924(c)(3)(B) is best construed to

require precisely that sort of commonplace circumstance-

specific 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

wsing, 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 ju-

ries are regularly called upon to make. A categorical

approach that instead substitutes a judicial conjecture

about the risk presented by the “judge-imagined abstrac-

tion” of “an idealized ordinary case of the crime,” Di-

maya, 138 S. Ct. at 1216 (citation omitted), would incon-

gruously wrest authority away from the jury.

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 ap-

proach, rather than a categorical one. Section 924(c)(3)(B)

looks to the “course of committing the offense” —4.e.,

the same conduct that the government already must

prove to the jury in order to satisfy the other require-

ments of the statute. 18 U.S.C. 924(c)(3)(B). The provi-

sion uses the words “offense,” “felony,” and “involves,”

each of which this Court already has recognized to be

consistent with a cireumstance-specific inquiry. See

Nijhawan v. Holder, 557 U.S. 29, 33-40 (2009). And the

“nature” of the offense that the defendant has commit-

ted in a particular case is not an abstraction, but instead

the conduct itself, stripped of any extraneous consider-

ations such as the defendant’s own subjective predilec-

tions 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-specifie 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 categor-

ical 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

clause, but not with Section 924(c)(3)(B). Because Sec-

tion 924(c)(3)(B) is limited to conduct already before a

jury, a categorical approach is not necessary to avoid ei-

ther 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, there-

fore, 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 defend-

ant’s jury-trial rights, a cireumstance-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 uncon-

stitutional would forestall current and future prosecutions

of clearly dangerous criminals under Section 924(c)(3)

and allow already-incarcerated ones back on the streets.

Il. Applying governing circuit precedent, the dis-

trict court in this case concluded that respondents’ con-

spiracy to commit Hobbs Act robbery categorically quali-

fied as a crime of violence under Section 924(c)(3)(B).

Although the court therefore did not instruct the jury

to determine whether the conduct involved in respond-

ents’ own conspiracy “by its nature, involve[d] a sub-

stantial risk that physical foree against the person or

property of another may be used in the course of com-

mitting 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 gun-

point, and threatened to injure them if they did not com-

ply with respondents’ demands for cigarettes and cash.

Under the constitutionally valid cireumstance-specific

approach to Section 924(c)(3)(B), a jury would unques-

tionably 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 “iiot doubt{ed] the

constitutionality of laws that call for the application of a

qualitative standard such as ‘substantial risk’ to real-

world conduct.” Sessions v. Dimaya, 138 S. Ct. 1204, 1214

(2018) (quoting Johnson v. United States, 135 8S. 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 foree against the person or property of

another may be used in the course of committing the

offense.” /bid. That cireumstance-specific approach is

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 cate-

gorical approach that doomed the provisions at issue in

Johnson and Dimaya. And it comports with Congress’s

evident intent to punish violent offenders like respond-

ents, whose conspiracy to serially terrorize convenience-

store clerks to obtain cigarettes and money was unques-

tionably a “crime of violence.”

I. THE DEFINITION OF A “CRIME OF VIOLENCE” IN

18 U.S.C. 924(¢)(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 punish-

ment 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 mak-

ing 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

cireumstance-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 of-

fense conduct, readily embraces a cireumstance-specific

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 re-

quire a “‘cireumstance-specific’” determination, based

on “the facts and circumstances,” of whether “the spe-

cific 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 ex-

amples); 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 fo-

cuses on what the defendant actually did. The jury must

find conduct that meets the elements of a separate fed-

eral felony—e.g., kidnapping—whether or not the de-

fendant also is prosecuted for that underlying crime.

See Rodriguez-Moreno, 526 U.S. at 280. And the jury

must inquire into the specifies 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(¢)(1)(A). All

of those findings depend “exclusively” on the evidence

before the jury about the circumstances of the defend-

ant’s own case. Ovalles v. United States, 905 F.3d 1231,

1248 (11th Cir. 2018) (en bance).

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 “erime of violence.” 18 U.S.C. 924(¢)(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 cer-

tain federal laws, see 18 U.S.C. 924(¢)(2), the jury’s find-

ing 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 de-

fendant 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 fel-

ony” 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 foree-related element, without any fur-

ther 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 pro-

scription “has” (as with Section 924(c)(3)(A)’s “crime of

violence” definition). Instead, it includes any felony of-

fense “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(¢)(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) (de-

scribing principle that different provisions of a statute

are presumed to have different meanings). But follow-

ing this Court’s decision in Dimaya, courts have diverged

about how to determine whether a defendant’s conduct

is a “erime of violence” under Section 924(¢c)(3)(B).

The court below adhered to circuit precedent inter-

preting 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, imagi-

nes 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 sub-

stantial risk that Section 924(c)(3)(B) requires. Jd. at

5a. Under that approach, a particular Section 924(c) de-

‘endant’s own conduct is irrelevant. If, for example, a

judge concludes that the “ordinary” case of transport-

ing 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. Notwithstand-

ing that the ordinary-case categorical approach com-

pletely 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.

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 tra-

ditional 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 well-

positioned 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 hypo-

thetical, judicially imagined “ordinary case” of the crime.

Johnson, 135 S. Ct. at 2561. As this Court has rec-

ognized, “dozens of federal and state criminal laws use

terms like ‘substantial risk,’ ‘grave risk,’ and ‘unrea-

sonable risk,’” and “almost all” of them “require gaug-

ing the riskiness of conduct in which an individual de-

fendant engages on a particular occasion.” Ibid.

For example, a typical reckless-endangerment or

criminal-recklessness offense is defined as “recklessly

engagling] 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

homicide, and kidnapping—use comparable risk-based

forrnulations to define the crime or aggravating ele-

ments. See, e.g., 21 U.S.C. 858; Conn. Gen. Stat. Ann.

§ 58a-111(a)(4) (West 2012); Ind. Code Ann. § 35-43-4-2(a)(2)

(LexisNexis Supp. 2018); lowa Code Ann. § 709.3(1)(a)

(West 2016); Md. Code Ann., Crim. Law § 3-1001(c)

(Lexis Nexis Supp. 2018); Mass. Ann. Laws ch. 265, § 13L

(LexisNexis 2010); Utah Code Ann. § 76-5-301(1)(b)

(Lexis Nexis 2017); see also Ovalles, 905 F.3d at 1250 n.8

(providing additional examples); Gov’t Supp. Br. App. at

la-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 sub-

stantial 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.” /d. at 1250 n.8; see

Dimaya, 138 S. Ct. at 1215; Johnson, 135 S. Ct. at 2561.

Since Dimaya, several courts of appeals have adopted,

at the government’s urging, a circumstance-specific ap-

proach 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 vio-

lence” 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-er-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-er-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) (quot-

ing Davis v. Michigan Dep't of the Treasury, 489 U.S.

803, 809 (1989)). Rather, “a fundamental canon of stat-

utory 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.” /bid. (citation omitted).

Congress enacted Section 924(c)(3)(B)’s “crime of vio-

lence” definition “[fjor 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

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 deter-

mining 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

commission)” 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 or-

dinary 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 Niyhawan accordingly interpreted a provi-

sion using the term “offense,” 8 U.S.C. 1101(a)(43)(M), to

“call{} for a ‘cireumstance-specific,’ not a ‘categorical,’ in-

terpretation”—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,

the Court interpreted the phrase “an offense * * * com-

mitted by a current or former spouse,” 555 U.S. at 420

(quoting 18 U.S.C. 921(a)(33)(A)), to contemplate a fac-

tual, rather than a categorical, inquiry, see id. at 426-429.

The cireumstance-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 substantial-

risk 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 Niyjhawan, 557 U.S.

at 33-34. And because the circumstance-specific mean-

ing of the term “offense” encompasses both the defend-

ant’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 pro-

visions enacted as part of the statute that added the

“erime of violence” language to Section 924(c)—in a

manner “that require[s] looking into a defendant’s un-

derlying conduct rather than a hypothetical or idealized

offense.” Douglas, 907 F.3d at 12 (citing provisions of

the Comprehensive Crime Control Act of 1984 (Com-

prehensive Crime Control Act), Pub. L. No. 98-473, Tit.

I1, 98 Stat. 1976)). Another provision of Section 924(c),

for example, provides an enhanced penalty for subse-

quent convictions under that statute “if the firearm in-

volved 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.”

® 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, har-

assment, or intimidation”) (emphasis added); 18 U.S.C. 111(a)

(providing enhanced penalty for assault on federal officer that “in-

volve[{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 Su-

preme 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 Fed-

eral assistance”) (emphasis added); 18 U.S.C. 670(b)(2)(A) (provid-

ing 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 in-

volving 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) (em-

phasis added); 18 U.S.C. 2118(a) and (e)(3) (prohibiting robberies of

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-specifie 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, ra-

ther than circumstance-specific, approach to determin-

ing whether a defendant had a sentencing-enhancing

prior conviction for “burglary” under the ACCA. /d. at

600. The Court also has recognized that the presence of

the word “involves” complicated its adoption of a cate-

gorical 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-or-

deceit 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-specifie inter-

pretation of “involves” is also consistent with other

controlled substances that result in “significant bodily injury,” de-

fined 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 de-

piction” that “involves the use of a minor engaged in sexually ex-

plicit 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).

criminal statutes that use the word in a circumstance-

specific manner in the context of a prior offense.’

c. In the context of conduct currently before the

jury, the modifier “by its nature” further supports a

cireumstance-specific approach. “{(T|]he word ‘nature’

as used in the phrase ‘by its nature’ is commonly under-

stood to mean ‘the basic or inherent features, character,

or qualities of something.’” Barrett, 903 F.3d at 182 (quot-

ing Oxford Dictionary of English 1183 (3d ed. 2010));

see, e.g., Webster’s Third New International Diction-

ary 1507 (2002) (variously defining “nature” as the “nor-

mal and characteristic quality,” “essential character,”

and “distinguishing qualities or properties of some-

thing”). In the context of Section 924(c)(3)(B), that

“something” is the defendant’s particular conduct in vi-

olation 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.” (i-

maya, 138 8. 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, ¢.g., 18 U.S.C. 3592(¢)(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 at-

tempted 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).

“the nature of the offense” at issue as “recruiting per-

sons 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) (de-

scribing “the nature of the offense at issue” as not “involv-

ing grave physical injury” but rather as a “business dis-

pute 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, in-

volves 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 na-

ture” 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 in-

quiry to the offense, rather than the offender, or any

other extraneous considerations. The phrase “by its na-

ture” assures, for example, that the jury may not con-

sider 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 in-

stant 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). Con-

versely, 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.

In the context of a prior conviction, in contrast, at-

taching 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 ap-

proach. 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 iden-

tical to Section 924(c)(3)(B)‘—requires a categorical ap-

proach in the context of an immigration proceeding that

required Section 16(b)’s application to a prior convic-

tion. 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 Sec-

tion 924(c) proceedings thus does not suggest that Con-

gress intended for a judge to resolve the substantial-

risk 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 be-

fore the word “by.”

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 ap-

proach for other statutes. The Court has only consid-

ered, 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 con-

sequences in subsequent federal proceedings.” Barrett,

903 F.3d at 181. Although the lower courts and the gov-

ernment 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 consid-

erations that do not apply in Section 924(c)(3)(B)’s jury-

trial context. Douglas, 907 F.3d at 13 (observing that

the Court “fashioned and refined the categorical ap-

proach both for practical and constitutional reasons that

are specific to the consideration of a prior conviction”).

Those decisions therefore cannot support continued dis-

regard 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.”).

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 ap-

proach 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 al-

ready before the jury, and nothing suggests that it af-

firmatively 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 fel-

ony 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 sev-

eral proposals to “refine the offense by confining it to

its proper and practical boundaries as a means of deter-

ring and punishing the employment of a firearm” during

violent crimes. S. Rep. No. 307, 97th Cong., Ist 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 in-

cluded “certain misdemeanors.” /d. at 888; see id. at

888-889 & n.42. The Committee described the scope of

misdemeanor coverage in conduct-focused terms, ex-

plaining that the proposal would not cover “a ‘misde-

meanor 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 “in-

tended 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.” Jd. 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] 2 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 incorpo-

rated the general definition of that term set forth in

18 U.S.C. 16, which was enacted as part of the same leg-

islation (and which remains unchanged today). See

S. Rep. No. 225, 98th Cong., Ist 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

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 ele-

ment,” as well as to “any felony which carries a sub-

stantial risk of such force,” 1983 Senate Report 313 n.9

(emphasis added)—not one that ordinarily (or neces-

sarily) 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 un-

derstood to require a categorical approach. The gov-

ernment, for example, argued in several Section 924(c)

cases that Section 16(b) required a circumstance-

specific approach to determining whether drug traffick-

ing offenses qualified as “crime[s] of violence” for pur-

poses 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 fire-

arm, constitutes a crime of violence). And the Sentencing

Commission interpreted Section 16 to cover not only cer-

tain categories of offenses (e.g., “murder,” “aggravated

assault,” “robbery”) that would invariably meet its re-

quirements, but also “{o]ther offenses *** if the con-

duct 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,

e.g., United States v. Diaz, 778 F.2d 86, 88 (2d Cir. 1985)

(per curiam), Congress amended Section 924(c) to abro-

gate those decisions. The Firearms Owners’ Protection

Act both defined “drug trafficking crime[s]” as under-

lying offenses under Section 924(c) and decoupled Sec-

tion 924(c)’s definition of a “crime of violence” from Sec-

tion 16 by enacting a new definition of that term in Sec-

tion 924(c)(3) that applied only “[fJor 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, freestand-

ing crime-of-violence definition contrasted with congres-

sional action regarding other provisions. Congress sim-

ultaneously 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 Sec-

tion 16’s definition of “crime of violence.” See Firearms

Owners’ Protection Act § 108, 100 Stat. 460. The addi-

tion of a self-contained, subsection-specific “crime of vi-

olence” 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 ap-

proach to Section 924(c)(3)(B) tailored to its particular

language and context, however, was effectively fore-

stalled by reliance on this Court’s developing categorical-

approach jurisprudence. Although that jurisprudence

arose in the context of prior convictions, it came to pre-

dominate the landscape of offense-classification provi-

sions.

The watershed was this Court’s 1990 decision in Tay-

lor v. United States, supra. Relying in part on practical

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 con-

duct 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 re-

sidual clause requires an analysis of “whether the con-

duct encompassed by the elements of the offense, in the

ordinary case” posed such a risk. Jbid. The Court in

Leocal had taken a similar approach, without much dis-

cussion, 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 Di-

maya explicitly took the view that Section 16(b) incor-

porates 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 8. Ct. at 2556; Sykes v.

United States, 564 U.S. 1, 13 (2011), overruled by John-

son Vv. 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 pre-

sented 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 regu-

larly cited Taylor when applying the categorical ap-

proach to Section 924(c), including when applying Sec-

tion 924(c)(3)(B). See, eg., 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 Fernandez-

Ruiz 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 cireumstance-specific

approach to Section 924(c)(3)(B)), cert. denied, 516 U.S.

1164 (1996).

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)

The cross-pollination of circuit law had the unfortu-

nate effect of losing sight of Congress’s deliberate isola-

tion 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 classifi-

cation of prior convictions, much of the rationale under-

lying the categorical approach is absent. Indeed, the

practical and constitutional concerns that favored a cat-

egorical approach to provisions that classify prior con-

victions 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 relit-

igation of past convictions in minitrials conducted long af-

ter the fact,” Moncrieffe v. Holder, 569 U.S. 184, 200-

201 (2013)—that does not exist in the Section 924(c)(3)(B)

context. A cireumstance-specific approach to prior con-

victions has the “daunting” practical obstacle of requir-

ing a determination—potentially many years later—

how a defendant’s prior offense actually occurred. Tay-

lor, 495 U.S. at 601; see ibid. (noting the related “poten-

tial 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 enhance-

ment are often “adjudicated by different courts in pro-

ceedings that occurred long before the defendant’s pre-

sent sentencing.” Douglas, 907 F.3d at 14 (citation omit-

ted); 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 incor-

porate 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 impracticabil-

ity” of a cireumstance-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 pur-

pose 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) pros-

ecution 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) en-

hancement 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

convictions do not arise in prosecutions under Section

924(c)(3)(B). In fact, in the context of Section 924(c)(3)(B),

a cireumstance-specific approach is more workable and

fair than a categorical one.

This Court has characterized the “‘ordinary case’”

approach as “an excessively ‘speculative,’ essentially in-

scrutable thing” that “‘offers significantly less predict-

ability than one that deals with the actual facts.’” Di-

maya, 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 vio-

lence? It’s nuts.”). Where “the facts concerning the rel-

evant 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 8S. 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 par-

ticular 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 sen-

tencing courts’ making findings of fact’” regarding

prior convictions “‘that properly belong to juries.’” Di-

maya, 138 $8. 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 ap-

proach in Taylor) (citation omitted). Those Sixth Amend-

ment 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 resolu-

tion 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 in-

creases 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 cer-

tain criminal-sentencing provisions, for the purpose of

classifying prior convictions. 138 S. Ct. at 1217.

Section 924(c)(3)(B), in contrast, never applies to the

classification of prior convictions or to criminal sente~c-

ing. 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 de-

fendant is guilty of using a firearm ‘during and in relation

to any crime of violence,’ 18 U.S.C. § 924(c)(1)(A), can de-

cide 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 de-

fendants 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(¢)(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 ap-

proach 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 ex-

plained, “if an otherwise acceptable construction of a

statute would raise serious constitutional problems, and

where an alternative interpretation of the statute is

‘fairly possible,’ we are obligated to construe the statute

to avoid such problems.” JNS 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 min-

imum, “‘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 un-

der the ACCA’s residual clause in James, 550 U.S. at

208, the Court proceeded to apply it in a series of addi-

tional cases involving the classification of prior convic-

tions 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 re-

jected suggestions by dissenting Justices that the resid-

ual 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 ap-

ply 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 sup-

plemental briefing and reargument, and it then struck

down the ACCA’s residual clause on Fifth Amendment

vagueness grounds. /bid. The Court concluded that

“[t}wo features of the residual clause conspire to make

it unconstitutionally vague.” /d. at 2257. The first was

its incorporation of the ordinary-case categorical ap-

proach, which “leaves grave uncertainty about how to

estimate the risk posed by a crime” by tying “the judi-

cial assessment of risk to a judicially imagined ‘ordinary

case’ of a crime, not to real-world facts or statutory ele-

ments.” Jbid. The second was “uncertainty about how

much risk it takes for a crime to qualify” as categori-

cally risky. Jd. at 2558. “It is one thing,” the Court ex-

plained, “to apply an imprecise ‘serious potential risk’

standard to real-world facts; it is quite another to apply

it to a judge-imagined abstraction.” /bid.

Soon after holding for the first time that the ordinary-

case 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 as-

signing immigration consequences to a particular type

of prior conviction. 1388. Ct. at 1210. The government

did not dispute that Section 16(b), which is also incorpo-

rated into numerous provisions that require the classi-

fication 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 advo-

cate a circumstance-specific approach] is that such an

approach would generate its own constitutional ques-

tions.”). And notwithstanding some textual differences

between the ACCA’s residual clause and Section 16(b),

the Court held Section 16(b) to likewise be unconstitu-

tionally vague because it “has the same two features as

ACCA’s, combined in the same constitutionally prob-

lematie way.” /d. at 1213 (majority opinion).

Although courts and the government previously con-

strued Section 924(c)(3)(B) in line with Section 16(b), in

light of Johnson and Dimaya, the canon of constitu-

tional avoidance compels a construction of Section

924(c)(3)(B) that adopts the circumstance-specific ap-

proach. Such a construction avoids the vagueness cun-

cerns that led this Court to invalidate the ACCA’s re-

sidual 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 inter-

pretation of Section 924(c)(3)(B) that steers straight

into the teeth of Johnson and Dimaya—despite the

availability of a textually sound alternative interpreta-

tion that raises no constitutional doubts—cannot be rec-

onciled with the rule that “[a] statute should be inter-

preted in a way that avoids placing its constitutionality

in doubt,” Antonin Sealia & Bryan A. Garner, Reading

Law: The Interpretation of Legal Texts 247 (2012) (em-

phasis 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 ina-

pposite here. Emphasizing the Sixth Amendment con-

cerns that had motivated the categorical approach in the

first place, the plurality reasoned that the constitutional-

avoidance canon could not “serve *** as the inter-

pretive tie breaker” for Section 16(b) because it “would

merely ping-pong [the Court] from one constitutional

issue to another.” Dimaya, 138 S. Ct. at 1217. But to

the extent that “avoid[{ing] the Scylla of the Sixth Amend-

ment[’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 ap-

proach. See pp. 42-44, supra.

And to the extent that the plurality’s statement that

Section 16(b)’s text is “[bJest read” to “demand|] a catego-

rical approach” suggested its view that no circumstance-

specific construction of Section 16(b) was plausible, Di-

maya, 138 §. Ct. at 1217, Section 924(c)(3)(B)’s limita-

tion to the jury-trial context provides ample support for

reading its text differently. See pp. 20-32, swpra; 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 Sec-

tion 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 (ci-

tation 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,

which arises “out of respect for Congress, which we as-

sume legislates in the light of constitutional limita-

tions.” Jd. 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 fire-

arms in the course of committing violent crimes. As the

courts’ repeated difficulties applying the ACCA’s resid-

ual clause made clear, see Johnson, 135 S. Ct. at 2558-

2559, 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 circumstance-

specific application by a jury. See Dimaya, 138 S. Ct.

at 1215; Johnson, 135 S. Ct. at 2561. Unnecessarily con-

struing that language to refer to an abstraction—and

thereby rendering it unconstitutional—would inappro-

priately 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) prosecu-

tion 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, de-

fendants whose prosecution requires application of Sec-

tion 924(c)(3)(B) include some of the most violent crim-

inals on the federal docket.

Conspiracy to commit the sort of violent robbery

spree at issue here—involving takeover-style armed rob-

beries 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 an-

other may be used in the course of committing the of-

fense,” 18 U.S.C. 924(c)(3)(B); see pp. 3-6, supra (detail-

ing respondents’ crimes). A Hobbs Act conspiracy need

not, however, lead to the commission of the planned rob-

bery, see Callanan v. United States, 364 U.S. 587, 593-

594 (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 an-

other,” so as to qualify as a “crime of violence” under

18 U.S.C. 924(c)(3)(A).°

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 sub-

stantial 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 re-

quires 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 instruc-

tions). 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).

898 F.3d 36, 36-38 (D.C. Cir.) (per curiam) (vacating Sec-

tion 924(c) conviction where underlying crime was con-

spiracy to commit Hobbs Act robbery in which the de-

fendants 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 unconsti-

tutionally 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 ac-

cordingly vacated the Section 924(c) conviction of a de-

fendant 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 Cir-

cuit determined that Section 924(c)(3)(B) is unconstitu-

tionally 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 there-

fore vacated a Section 924(c) conviction where the un-

derlying crime was a kidnapping in which the defendant

held the victim at gunpoint, beat him, doused him in gas-

oline, placed a firework in his mouth, and threatened to

shoot him execution-style. /d. 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, Hizember 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 pisto!

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 re-

quires 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 hold-

ing of this Court that Section 924(c)(3)(B) requires an

ordinary-case categorical approach—and thus is uncon-

stitutionally 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

theory that the criminality of cheir conduct under Sec-

tion 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 inter-

pretation of Section 924(c)(3)(B) tailored to punish de-

fendants whose conduct was or is actwally violent is the

most respectful of Congress’s efforts.

Il. 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 sub-

stantial risk that physica! force against the person or

property of another may be used in the course of com-

mitting 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 be-

yond 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

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 involve-

ment in two of the violent robberies, see ROA 828-831

(Glover); ROA 840-841 (Davis), both of which effectu-

ated and furthered their continuing conspiracy. In ad-

dition, in an effort to escape apprehension for the rob-

beries they conspired to commit, respondents engaged

police in a high-speed chase on a wet highway that cul-

minated 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 rob-

bery.’ 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’” in-

cludes 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 rob-

bery 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

conduct during the course of their conspiracy, the jury

would necessarily have found that the offense was a

“erime 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

ErRIc J. FEIGIN

ERICA L. Ross

Assistants to the Solicitor

General

ROBERT A. PARKER

JOHN P. TADDE!I

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 pro-

cess of law; nor shall private property be taken for

publie 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.

(la)

3. 18 U.S.C. 922(g) provides in pertinent part:

Unlawful acts

(g) Itshall be unlawful for any person—

(1) who has been convicted in any court of, a

crime punishable by imprisonment for a term ex-

ceeding one year;

* * * * *

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. 180U.S.C. 924 (2012) provides in pertinent part:

Penalties

* * * * *

(c)(1)(A) Except to the extent that a greater mini-

mum 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 traffick-

ing crime (including a crime of violence or drug traf-

ficking 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 fire-

arm, 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.

(B) If the firearm possessed by a person convicted

of a violation of this subsection—

(i) is a short-barreled rifle, short-barreled shot-

gun, 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 muf-

fler, the person shall be sentenced to a term of im-

prisonment of not less than 30 years.

tion 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 si-

lencer or firearm muffler, be sentenced to imprison-

ment for life.

(D) Notwithstanding any other provision of law—

(i) a court shall not place on probation any per-

son convicted of a violation of this subsection; and

(ii) no term of imprisonment imposed on a per-

son under this subsection shall run concurrently with

any other term of imprisonment imposed on the per-

son, including any term of imprisonment imposed for

the crime of violence or drug trafficking crime dur-

ing 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 per-

son or property of another, or

(B) that by its nature, involves a substantial

risk that physical force against the person or prop-

erty of another may be used in the course of com-

mitting 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 pres-

ence 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, dur-

ing 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 pun-

ishment if committed by the use of a deadly or dangerous

weapon or device) for which the person may be prose-

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 convic-

tion 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 sec-

tion 1111), be punished by death or sentenced to

a term of imprisonment for any term of years or

for life; and

(ii) ifthe killing is manslaughter (as defined

in section 1112), be punished as provided in sec-

tion 1112.

* * * * *

(e)(1) In the ease 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—

(i) ¢ offense under the Controlled Sub-

stances 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 Con-

trolled 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 involv-

ing the use or carrying of a firearm, knife, or destruc-

tive device that would be punishable by imprison-

ment 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

a person has committed an act of juvenile delin-

quency involving a violent felony.

* * * * *

5. 18 U.S.C. 1951 provides:

Interference with commerce by threats or violence

(a) Whoever in any way or degree obstructs, de-

lays, or affects commerce or the movement of any arti-

cle or commodity in commerce, by robbery or extortion

or attempts or conspires so to do, or commits or threat-

ens physical violence to any person or property in fur-

therance of a plan or purpose to do anything in viola-

tion of this section shall be fined under this title or im-

prisoned not more than twenty years, or both.

(b) As used in this section—

(1) The term “robbery” means the unlawful tak-

ing or obtaining of personal property from the ver-

son or in the presence of another, against his will,

by means of actual or threatened force, or vivlence,

or fear of injury, immediate or future, to his person

or property, or property in his custody or posses-

sion, 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, vio-

lence, 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 be-

tween any point in a State, Territory, Possession, or

the District of Columbia and any point outside there-

of; all commerce between points within the same

State through any place outside such State; and all

other commerce over which the United States has

jurisdiction.

(ce) This section shall not be construed to repeal,

modify or affect section 17 of Title 15, sections 52, 101-

115, 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.