by Dale Chappell

After a remand by the U.S. Supreme Court, the U.S. Court of Appeals for the Seventh Circuit, on July 30, 2019, reaffirmed its earlier decision in two cases that the “residual clause” of 18 U.S.C. § 924(c) is unconstitutionally vague and that sex trafficking and felony kidnapping therefore are not violent felonies to support a conviction under § 924(c).

On direct appeal in 2017, Douglas Jackson and Antwon Jenkins argued that in light of the Supreme Court’s ground-breaking decision in Johnson v. United States, 135 S. Ct 2551 (2015), invalidating the “residual clause” of the Armed Career Criminal Act (“ACCA”), their convictions under § 924(c) tied to sex trafficking and kidnapping (respectively) had to be vacated. The Seventh Circuit agreed and vacated their convictions, finding Johnson applied to the similar residual clause of § 924(c).

But the Government appealed to the Supreme Court, arguing that the high court’s decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), which held that the residual clause of 18 U.S.C. § 16(b)’s definition of crime of violence was unconstitutionally vague after Johnson, nevertheless cast doubt on whether Johnson applies to § 924(c). Echoing Justice Thomas’ dissent (which was joined by Justices Kennedy and Alito), the Government argued that the residual clause of § 924(c)(3)(B) “may be amenable to a narrowing construction under the canon of constitutional avoidance” and that the statute could be “construed in a manner that preserves its constitutionality.” In other words, the Government argued that the Court could interpret § 924(c)’s residual clause differently from those it has already held to be unconstitutional and save it from being declared unconstitutional.

Without opining on the merits of the Government’s argument, the Supreme Court granted, vacated, and remanded (“GVR”) Jackson’s and Jenkins’ cases, and a slew of other cases which included Maurice Davis’ case that would later resolve the issue, for further analysis under the Government’s suggestion. Seeing a possible answer coming down the line in Davis’ case when the Supreme Court later granted certiorari after the Fifth Circuit changed course and granted Davis relief after the GVR, the Seventh Circuit consolidated Jackson’s and Jenkins’ cases and stayed the proceedings waiting on Davis.

In Davis, 139 S. Ct. 2319 (2019), the Supreme Court held that, just like the ACCA’s residual clause, the residual clause in § 924(c) was unconstitutionally vague, and that the alternative interpretation of the statute by Justice Thomas in an attempt to save it was not the proper solution. “A vague law is no law at all,” Justice Gorsuch said of the trio of residual clauses the Court found unconstitutional in Johnson, Dimaya, and finally Davis.

The Davis Court admitted that a “case-specific approach” would avoid the statute being unconstitutionally vague. But the Court concluded that “the statute simply cannot support the government’s newly-minted case-specific theory.” In argument after argument over the years, the Government had always pushed for a “categorical approach” (and not a case-specific) for analysis under the residual clauses. The Court said that the language of the residual clause itself requires the categorical approach, not the case-specific approach, and thus rejected the case-specific approach.

Finding that Davis “vindicated” its earlier decisions vacating Jackson and Jenkins’ § 924(c) convictions, the Seventh Circuit again vacated their convictions and remanded for a “full resentencing.” See:

by Dale Chappell

fter a remand by the U.S. Supreme Court, the U.S. Court of Appeals for the Seventh Circuit, on July 30, 2019, reaffirmed its earlier decision in two cases that the “residual clause” of 18 U.S.C. § 924(c) is unconstitutionally vague and that sex trafficking and felony kidnapping therefore are not violent felonies to support a conviction under § 924(c).

On direct appeal in 2017, Douglas Jackson and Antwon Jenkins argued that in light of the Supreme Court’s ground-breaking decision in Johnson v. United States, 135 S. Ct 2551 (2015), invalidating the “residual clause” of the Armed Career Criminal Act (“ACCA”), their convictions under § 924(c) tied to sex trafficking and kidnapping (respectively) had to be vacated. The Seventh Circuit agreed and vacated their convictions, finding Johnson applied to the similar residual clause of § 924(c).

But the Government appealed to the Supreme Court, arguing that the high court’s decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), which held that the residual clause of 18 U.S.C. § 16(b)’s definition of crime of violence was unconstitutionally vague after Johnson, nevertheless cast doubt on whether Johnson applies to § 924(c). Echoing Justice Thomas’ dissent (which was joined by Justices Kennedy and Alito), the Government argued that the residual clause of § 924(c)(3)(B) “may be amenable to a narrowing construction under the canon of constitutional avoidance” and that the statute could be “construed in a manner that preserves its constitutionality.” In other words, the Government argued that the Court could interpret § 924(c)’s residual clause differently from those it has already held to be unconstitutional and save it from being declared unconstitutional.

Without opining on the merits of the Government’s argument, the Supreme Court granted, vacated, and remanded (“GVR”) Jackson’s and Jenkins’ cases, and a slew of other cases which included Maurice Davis’ case that would later resolve the issue, for further analysis under the Government’s suggestion. Seeing a possible answer coming down the line in Davis’ case when the Supreme Court later granted certiorari after the Fifth Circuit changed course and granted Davis relief after the GVR, the Seventh Circuit consolidated Jackson’s and Jenkins’ cases and stayed the proceedings waiting on Davis.

In Davis, 139 S. Ct. 2319 (2019), the Supreme Court held that, just like the ACCA’s residual clause, the residual clause in § 924(c) was unconstitutionally vague, and that the alternative interpretation of the statute by Justice Thomas in an attempt to save it was not the proper solution. “A vague law is no law at all,” Justice Gorsuch said of the trio of residual clauses the Court found unconstitutional in Johnson, Dimaya, and finally Davis.

The Davis Court admitted that a “case-specific approach” would avoid the statute being unconstitutionally vague. But the Court concluded that “the statute simply cannot support the government’s newly-minted case-specific theory.” In argument after argument over the years, the Government had always pushed for a “categorical approach” (and not a case-specific) for analysis under the residual clauses. The Court said that the language of the residual clause itself requires the categorical approach, not the case-specific approach, and thus rejected the case-specific approach.

Finding that Davis “vindicated” its earlier decisions vacating Jackson and Jenkins’ § 924(c) convictions, the Seventh Circuit again vacated their convictions and remanded for a “full resentencing.” See: United States v. Jackson, 932 F.3d 556 (7th Cir. 2019).

Writer’s note: A word on the Court granting a “full resentencing.” In Dean v. United States, 137 S. Ct. 1170 (2017), the Supreme Court recognized that when a defendant’s § 924(c) conviction is vacated, courts “routinely vacate the defendant’s entire sentence on all counts so that the district court may increase the sentences for any remaining counts if such an increase is warranted.”

However, the Court also recognized in Dean that its decision in Pepper v. United States, 562 U.S. 476 (2011), allows a sentencing judge to take into consideration postconviction rehabilitation, such as classes taken and a clear disciplinary conduct record, to impose a lower sentence at resentencing. Dean held that a sentencing court may impose a lower underlying sentence to account for the harsh mandatory consecutive sentence required by § 924(c).

, 932 F.3d 556 (7th Cir. 2019).

Writer’s note: A word on the Court granting a “full resentencing.” In Dean v. United States, 137 S. Ct. 1170 (2017), the Supreme Court recognized that when a defendant’s § 924(c) conviction is vacated, courts “routinely vacate the defendant’s entire sentence on all counts so that the district court may increase the sentences for any remaining counts if such an increase is warranted.”

However, the Court also recognized in Dean that its decision in Pepper v. United States, 562 U.S. 476 (2011), allows a sentencing judge to take into consideration postconviction rehabilitation, such as classes taken and a clear disciplinary conduct record, to impose a lower sentence at resentencing. Dean held that a sentencing court may impose a lower underlying sentence to account for the harsh mandatory consecutive sentence required by § 924(c).

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