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Fourth Circuit Holds 18 U.S.C. § 924(c)(3)(B) is Unconstitutional

by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit, sitting en banc, held that the definition of a “crime of violence” in 18 U.S.C. 924(c)(3)(B)—commonly referred to as the “residual clause”—is  unconstitutional for vagueness.

Joseph Decore Simms pointed a gun at the manager of a McDonald’s, demanded money, and attempted to strike another employee. After the manager gave Simms the money from the safe, Simms hit the manager with the gun and threw a cash drawer at the other employee. Simms was arrested and ultimately pleaded guilty to Count I, conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951, and Count II, brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A). At sentencing, Simms argued his conviction under Count II was unconstitutional. The district court rejected Simms’ argument and sentenced him to consecutive sentences of 115 months on Count I and 84 months on Count II.

Simms argued on appeal that 18 U.S.C. § 924 (c)(3)(B) is unconstitutional. While the case was pending on appeal to a panel of the Fourth Circuit, the Supreme Court of the United States (“SCOTUS”) decided Sessions v. Dimaya, 138 S. Ct. 1204 (2018), which struck down as unconstitutionally vague a statute containing language materially identical to that challenged by Simms. Due to the “exceptional importance and recurring nature” of Simms’ argument, the Fourth Circuit agreed to rehear the case en banc.

The Court observed that 18 U.S.C. § 924(c)(1)(A) provides that a person who uses or carries a firearm “during and in relation to any crime of violence” may be convicted of utilizing the firearm in addition to the underlying offense. 18 U.S.C. § 924(c)(3) defines crime of violence as “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 [the “force clause”], 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 [the “residual clause”].” 

Because the statute punishes a category of violent crimes, the Court is first required to use the “elements-based categorical approach” to determine if the underlying offense is a crime of violence as defined by the force clause — meaning the Court does not look at the facts of the actual crime in the case under consideration but instead examines the statutory elements of the underlying offense. United States v. McNeal, 818 F.3d 141 (4th Cir. 2016). The elements of conspiracy to commit Hobbs Act robbery require that the Government prove only that a defendant agreed with another to commit actions that, if completed, would violate the Hobbs Act. Since such an agreement does not require the actual, attempted, or threatened use of physical force, it is not a crime of violence as defined by the force clause of § 924(c)(3)(A).

To determine if the underlying offense is a crime of violence as defined by the residual clause, the Court must use the “ordinary-case categorical approach.” Again, the Court does not look at the facts of the actual crime; instead, the Court uses the statutory definition to “imagine” an “ordinary case” to determine the “nature” of the offense and then considers whether this imagined case requires a “substantial risk of force.” Dimaya. It is for these reasons the Court struck down the residual clause of § 924(c)(3)(B) as unconstitutional.

As SCOTUS explained in Dimaya, “[t]he prohibition of vagueness in criminal statutes ... is an essential of due process, required by both ordinary notions of fair play and the settled rules of law.” And vague criminal statutes “invite the exercise of arbitrary power ... by leaving people in the dark about what the law demands and allowing prosecutors and courts to make it up.” Id. The ordinary-case categorical approach does exactly that when requiring judges to first imagine a case as defined by the elements of a statute and then divining if there was a substantial risk of force in the imaginary case. In Dimaya, SCOTUS — for these same reasons — struck down 18 U.S.C § 16(b) as unconstitutionally vague, and that statute contained language virtually identical to § 924(c)(3)(b).

The Court concluded that Simms’ conviction on Count II could stand neither under the force clause nor the residual clause. Accordingly, the district court’s judgment was reversed and remanded. See: United States v. Simms, 2019 U.S. App. LEXIS 2341 (4th Cir. 2019). 

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Editor’s note: The Circuits are split on the issue of whether the U.S. Supreme Court’s analysis of the ACCA residual clause in Johnson v. United States, 135 S. Ct. 2551 (2015), applies to other statutes that are materially similar to it such as § 924(c)(3)(b). In Simms, the Fourth Circuit joins the Fifth, D.C., and Tenth Circuits in concluding that it does and have all ruled that the § 924(c)(3)(b) is unconstitutionally vague. In contrast, the First, Second, and Eleventh Circuits have upheld the constitutionality of the statute. The Supreme Court will address this issue in United States v. Davis (18-431). The Court was scheduled to hear arguments on April 17, 2019.

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