SCOTUS Announces Death of ‘Categorical Approach’ by Invalidating 18 U.S.C. § 924(c)(3)(B) as Unconstitutionally Vague
by Richard Resch
In announcing the end of 18 U.S.C. § 924(c)’s residual clause in defining certain “crimes of violence” while using or possessing a firearm for purposes of sentence enhancement, the Supreme Court of the United States (“SCOTUS”) begins its opinion by explaining: “In our constitutional order, a vague law is no law at all…. When Congress passes a vague law, the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again.” That’s precisely what Justice Gorsuch does, writing the opinion for a 5-4 majority (joined by Justices Breyer, Ginsburg, Kagan, and Sotomayor) in United States v. Davis, 2019 U.S. LEXIS 4210 (2019).
In light of SCOTUS’ opinions in Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidated the residual clause of the Armed Career Criminal Act, the text of which is materially similar to § 924(c), as being unconstitutionally vague), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (invalidated the residual clause of 18 U.S.C. § 16(b), the text of which is nearly identical to that of the residual clause in § 924(c), as being unconstitutionally vague), it has been widely expected that SCOTUS would similarly strike the residual clause in § 924(c) as unconstitutionally void for vagueness when presented with the opportunity. Davis presents that opportunity.
Maurice Davis and Andre Glover robbed several gas stations in Texas. They were charged with and convicted of multiple counts of robbery affecting interstate commerce under the Hobbs Act, 18 U.S.C. § 1951(a). The convictions authorized the court to sentence Davis up to 70 years in prison and Glover up to 100 years.
The Government also charged both men with two separate violations of § 924(c), viz., robbery and conspiracy as predicate crimes of violence, and the jury convicted them on those counts. As a result, they each faced a mandatory minimum sentence of 35 years to run consecutively to the sentences for the robbery convictions. Ultimately, the court sentenced Davis to more than 50 years in prison and Glover to more than 41 years.
They appealed, arguing that § 924(c)’s residual clause is unconstitutionally vague. Initially, the Fifth Circuit rejected that argument, but the Supreme Court vacated the judgment and remanded for further consideration in light of Dimaya. Upon reconsideration, the Fifth Circuit held the § 924(c) count for robbery as the predicate crime of violence could be sustained under the elements clause. However, the § 924(c) count for conspiracy as the predicate offense relied upon the residual clause, so the court vacated their convictions and sentences on that count. SCOTUS granted certiorari to resolve the dispute among lower courts regarding the constitutionality of § 924(c)’s residual clause.
To summarize the statutory provision at issue in Davis, § 924(c) authorizes enhanced prison sentences for using, carrying, or possessing a firearm in connection with any federal “crime of violence or drug trafficking crime.” § 924(c)(1)(A). The statute defines “crime of violence” in two subparts commonly referred to as the elements clause, § 924(c)(3)(A), and the residual clause, § 924(c)(3)(B). The latter clause is at issue in Davis.
The residual clause defines a crime of violence as a felony “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.” Violation of § 924(c) results in a mandatory minimum sentence of five years in prison, in addition to any sentence imposed for the underlying crime of violence or drug trafficking crime. The mandatory minimum increases to seven years if the firearm is brandished and to ten years if discharged. Specific types of weapons also trigger enhanced sentences, e.g., short-barreled shotgun triggers a 10-year minimum sentence. Additionally, multiple violations of § 924(c) result in a 25-year minimum sentence.
The Court begins its analysis by explaining that the prohibition against enforcement of “vague laws rests on the twin constitutional pillars of due process and separation of powers.” Criminal statutes must give people “of common intelligence” fair notice of what conduct is prohibited; vague laws violate this “first essential of due process of law.” Connally v. General Constr. Co., 269 U.S. 385 (1926). In addition, vague laws undermine the principle of separation of powers by threatening “to hand responsibility for defining crimes to relatively unaccountable police, prosecutors, and judges,” but only those elected to the legislature are authorized to criminalize particular acts, explains the Court.
The Court briefly recaps the vagueness analysis discussed in Johnson and Dimaya to invalidate materially similar residual clauses contained in the ACCA and 18 U.S.C. § 16, respectively. It then states that those decisions “teach that the imposition of criminal punishment can’t be made to depend on a judge’s estimation of the degree of risk posed by a crime’s imagined ‘ordinary case.’”
Based upon the near universal understanding of lower courts, the Government’s concession on this issue, and its discussion on various tools of statutory interpretation contained in Part III. A, B, and C of the opinion, the Court concludes that that is precisely what § 924(c)(3)(B) requires, i.e., the categorical approach in defining a crime of violence. Consequently, since § 924(c)(3)(B) requires application of the categorical approach, it “must be held unconstitutional too,” the Court announces.
The remainder of the opinion is basically devoted to rejecting various arguments put forth by the Government as well as the dissent as to why § 924(c)(3)(B) is constitutional.
Of particular note, the Government argues that application of the case-specific approach would satisfactorily address the vagueness issue, so that’s the approach the Court should adopt. The Court agrees that adoption of the case-specific approach would eliminate constitutional vagueness problems, but it declines the Government’s invitation to do so. The Court notes that “while the consequences in this case may be of constitutional dimension, the real question before us turns out to be one of pure statutory interpretation.” Upon examination of “the statute’s text, context, and history [in Part III. A, B, and C],” the Court concludes “that the statute simply cannot support the government’s newly minted case-specific theory.”
Despite the statutory evidence arrayed against the case-specific approach, the Government nevertheless argues that approach should be adopted anyway because of the canon of constitutional avoidance, which, the Government asserts, dictates that even though the case-specific approach doesn’t represent the best interpretation of the statute, it should still be adopted because it is a “fairly possible” interpretation and thus saves the statute from being held unconstitutional.
The Court flatly rejects that argument. It isn’t convinced that the case-specific approach is even a “possible” interpretation of the statute, but even if it were, it doesn’t believe the canon of constitutional avoidance is applicable in this case because its application would “expand the reach” of the statute. And the Court declares that “no one before us has identified a case in which this Court has invoked the canon to expand the reach of a criminal statute in order to save it.” Adopting that approach “would cause § 924(c)(3)(B)’s penalties to apply to conduct they have not previously been understood to reach: categorically nonviolent felonies committed in violent ways,” warns the Court. Ultimately, it reasons, utilizing the avoidance canon in this situation “would risk offending the very same due process and separation-of-powers principles on which the vagueness doctrine itself rests.”
Accordingly, the Court affirmed in part and vacated in part the Fifth Circuit’s judgment and remanded for further proceedings consistent with this opinion.
Davis undoubtedly represents a major victory for many federal prisoners. But the scope of that victory is unclear because of the many technical and procedural questions that remain in its wake. For example, some potential hurdles to Davis relief to consider include the doctrine of retroactivity, procedural default, and statute of limitations. None of these will likely bar relief for diligent and conscientious movants, but they nonetheless pose potential obstacles of which movants should be aware.
A potentially more problematic obstacle to relief lies in the structure of § 924(c) itself with its dual definitions of “crime of violence.” That is, Davis invalidates the residual clause’s definition, but the elements clause’s definition in § 924(c)(3)(A) remains valid. As has been the case for those seeking Johnson relief, the issue for many seeking Davis relief will be whether a conviction or sentence was based upon the invalid definition or the valid definition.
The Courts of Appeals are divided on how to answer this question when the sentencing court was silent or unclear on the issue. One camp is of the opinion that defendants may only be resentenced if the sentencing court expressly relied on the invalid definition, but sentencing courts typically didn’t identify which provision sentencing decisions were based upon in these types of cases with the specificity demanded of those Courts of Appeals in this camp necessary for relief. Clearly, this position significantly restricts the number of prisoners eligible for Davis relief.
Other Courts of Appeals take the opposite view and permit a claim for relief if the sentencing court didn’t expressly base the conviction or sentence on the still valid definition. Still other courts ask only whether the conviction or sentence at issue can stand under the remaining valid definition.
This issue will surely be a hotly contested battlefield in the coming months. To help readers affected by Davis kick-start their research, the following is a list of noteworthy cases in which various Courts of Appeals discuss this issue: Dimott v. United States, 881 F.3d 232 (1st Cir. 2018); United States v. Peppers, 899 F.3d 211 (3d Cir. 2018); United States v. Winston, 850 F.3d 677 (4th Cir. 2017); United States v. Clay, 921 F.3d 550 (5th Cir. 2019); Potter v. United States, 887 F.3d 785 (6th Cir. 2018); Walker v. United States, 900 F.3d 1012 (8th Cir. 2018); United States v. Geozos, 870 F.3d 890 (9th Cir. 2017); United States v. Washington, 890 F.3d 891 (10th Cir. 2018); Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017).
In addition, the Sixth Circuit in Williams v. United States, 2019 U.S. App. LEXIS 17386 (6th Cir. 2019), does a thorough job of discussing the five common sources of evidence courts consider when determining whether a sentencing judge relied on the residual clause. In doing so, the Court cites and discusses several opinions from other circuits as well as SCOTUS. Hopefully, this information will aid affected readers to gather relevant evidence in preparing their § 2255 petitions. The sources are: (1) the sentencing record; (2) the legal background, i.e., controlling law at time of sentencing; (3) informed decision makers, i.e., if the judge considering the § 2255 petition is the same judge who sentenced the defendant, then that judge presumably knows whether he or she relied on residual clause; (4) the nature of the predicate offense; and (5) later legal developments, i.e., some circuits allow after-the-fact case law to be consulted.