Does the phrase a “crime of violence” render 18 U.S.C. § 924(c)’s residual clause unconstitutionally vague?
This case asks the Supreme Court to determine the meaning of the residual clause of 18 U.S.C. § 924(c)(3)(B), which defines Hobbs Act robbery, and whether the statute is constitutional. In 2015, Davis and Glover were convicted of several robberies under the Hobbs Act robbery statute. The two appealed their convictions to the Supreme Court after the Court in Sessions v. Dimaya held that the similarly worded “crime of violence” definition in the Immigration and Nationality Act was unconstitutional because the text was too vague. The United States government argues that the “crime of violence” language is constitutionally valid because the most appropriate reading of the statute implies analyzing an individual’s case and particularized facts, and not a “categorical approach” which looks at the ordinary expectations of the crime. The government further asserts that constitutional avoidance implies a categorical approach in conformity with congressional intent and the Constitution. Davis and Glover counter that the correct reading of Section 924(c)(3)(B) is a categorical approach as suggested by the text and placement within the statute. They further maintain that upholding the subsection under the doctrine of constitutional avoidance would upset the rule of lenity. The outcome of this case will determine the scope of the judiciary’s power to construe statute construction based on constitutionality and the occurrence of possible conviction reconsiderations for currently incarcerated individuals.
Questions as Framed for the Court by the Parties
Whether the subsection-specific definition of “crime of violence” in 18 U.S.C. § 924(c)(3)(B), which applies only in the limited context of a federal criminal prosecution for possessing, using or carrying a firearm in connection with acts comprising such a crime, is unconstitutionally vague.
Beginning on June 16, 2014, Respondents Maurice Davis and Andre Levon Glover (“Davis and Glover”) conducted four robberies in and around Dallas, Texas over the course of several days. In every robbery, the two concealed their identities with bandanas and stole cash and cigarettes at gun point. Subsequently, the two men escaped in a gold SUV. After the fourth robbery on June 22, local law enforcement tracked down Davis and Glover and engaged in a high-speed chase that led to Davis and Glover’s arrest.
On November 19, 2015, a grand jury found Davis and Glover guilty on multiple counts in relation to a series of gas station burglaries. These counts included conspiracy to commit robbery, multiple counts of Hobbs Act robbery and two 18 U.S.C. § 924(c) violations involving the illegal use of a firearm in furtherance of a crime of violence or a conspiracy to commit a crime of violence. Section 924(c)(3) defines “crime of violence” through an “elements clause” (§ 924(c)(3)(A)) and a “residual clause” (§ 924(c)(3)(B)). Before the trial, Davis and Glover unsuccessfully sought to dismiss the § 924(c) charges because the residual clause of § 924(c)(3) was similar to the residual clause in the Armed Career Criminal Act of 1984 (“ACCA”) which the Court, in Johnson v. United States, determined to be unconstitutionally vague because it took a “categorical approach.” The government argued that, unlike the unconstitutional residual clause in the ACCA, the residual clause in § 924(c)(3) was narrower because it is limited to the elements of the offense. The court then accepted a government-proposed jury instruction and instructed the jury that robbery and conspiracy were “crimes of violence.” Subsequently, the jury convicted Davis to 50 years of imprisonment and two years of supervised release, and Glover to 41 years of imprisonment and two years of supervised release. Davis and Glover appealed to the United States Court of Appeals for the Fifth Circuit claiming that the residual clause of § 924(c)(3)’s “crime of violence” definition was unconstitutionally vague. The Fifth Circuit affirmed Davis and Glover’s convictions and sentences.
Consequently, Davis and Glover petitioned the Supreme Court of the United States. In light of Sessions v. Dimaya, where the Court struck the residual clause of a “crime of violence” definition incorporated by the Immigration and Nationality Act (“INA”)—identically worded as the residual clause of § 924(c)(3)—as unconstitutionally vague, the Court remanded Davis and Glover’s case back to the Fifth Circuit “for further consideration.” Upon remand, the Fifth Circuit held that Dimaya did not affect Davis and Glover’s convictions for Hobbs Act robbery because Hobbs Act robbery can be classified as a “crime of violence” under § 924(c)(3)’s elements clause and Dimaya only invalidated a residual clause. Following the same reasoning, however, the Fifth Circuit vacated Davis and Glover’s convictions for conspiracy to commit robbery because conspiracy to commit robbery can be classified as a “crime of violence” only under § 924(c)(3)’s residual clause and Dimaya had invalidated an identically worded residual clause.
The Supreme Court granted certiorari on January 4, 2019.
FORM OF ANALYSIS FOR 18 U.S.C. § 924(c)
Petitioner the United States argues that, to prosecute a defendant under 18 U.S.C. § 924(c), a jury must make a fact-specific finding on whether a defendant’s specific conduct meets (1) the statutory definition of a “drug trafficking crime,” (2) a “crime of violence” as defined by § 924(c)(3)(A), the elements clause, or (3) a “crime of violence” as defined by § 924(c)(3)(B), the residual clause. For all three categories of crimes, the United States claims, the jury must determine whether the defendant’s conduct satisfies “elements of a separate federal felony” and whether the defendant used or possessed a firearm during or in furtherance of the crime. To prosecute a defendant under § 924(c) through the third category of crime, the United States asserts, the jury must further determine whether the defendant’s conduct “involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense” (§ 924(c)(3)(B)). The United States points out that, traditionally, however, courts do not involve the jury in determining whether a defendant’s conduct satisfies this third category of crime. The United States continues that courts traditionally follow a categorical approach where a judge assesses whether a hypothetical, “ordinary” conduct based on the “elements” of the “separate federal felony” would involve a “substantial risk” as required by § 924(c)(3)(B). The United States acknowledges that without deference to a jury, the residual clause is unconstitutionally vague. The United States returns to its position against such categorical approach by arguing that a textual analysis of § 924(c), in totality, points to holding juries responsible for findings of “substantial risk.”
The United States contends that the text “course of committing the offense” located in § 924(c)(3)(B) represents the defendant’s “own violation” and not an abstraction of conduct (emphasis in original). The United States claims that words such as “offense” can refer to both generic criminal activity and a defendant’s specific act, but, when read in the context of § 924, these words refer to a defendant’s specific act as opposed to generic criminal activity. The United States maintains that the word “involves” also suggests a “fact-specific” inquiry as it has been employed by Congress in statutory provisions which look into a defendant’s actual conduct. This applies to prior convictions also, claims the United States, as the court in Taylor v. United States noted the absence of “involves” as the reason to adopt a categorical approach. The United States claims that the use of “by its nature” in the statute defines the essential character or qualities of a defendant’s conduct. Furthermore, the United States claims that the categorical approach was never an intended interpretation of the law until the 1990s.
Conversely, Davis and Glover argue that application of 18 U.S.C. § 924(c)(3)(B) requires a categorical approach and should therefore be struck down for its unconstitutional vagueness. Davis and Glover reason that, based on a natural reading, “offense that is a felony”—language used in the residual clause—should refer to the statutory definition of a crime and not to a defendant’s specific conduct. Furthermore, Davis and Glover point out that the elements clause and the residual clause both use the language—“offense that is a felony.” Davis and Glover continues that, because the elements clause is applied using a categorical approach, which the United States agrees with, the residual clause should also be applied using a categorical approach. Otherwise, Davis and Glover explain, it would contravene traditional statutory interpretation because identical phrases in the same statute—§ 924(c)(3)—should not have different meanings.
Davis and Glover further argue that the phrase “by its nature” suggests that the natural reading of the statute supports a categorical approach. Like the United States’ ordinary reading of “nature,” Davis and Glover agree that the reading requires a look into the “basic or inherent features” of an offense and requires an inquiry into what the offense ordinarily entails. Davis and Glover assert that the nature of a crime cannot change based on the circumstances and has been read by the courts as the intrinsic nature of a criminal act. Moreover, Davis and Glover maintain that the word “involves” is not determinative, and that in James v. United States and Leocal v. Ashcroft, the inclusion of the word did not sway the Court from a categorical approach. The inclusion of “may be” along with “involves,” Davis and Glover argue, suggests a categorical approach as well given the fact that a bill is currently pending in Congress to replace such language to make the statute fact specific. Additionally, Davis and Glover contend that the language of the INA’s residual clause is identical to that of § 924(c)(3) and both were enacted around the same time with the same purpose, and therefore both should be construed to require the same analytical approach––categorical. Davis and Glover contend that the government’s proposed change in § 924(c)(3)(B)’s analytical approach extends § 924(c) beyond Congress’s intended scope because a prosecutor would have been able to convince a jury that any felony could be a “crime of violence” because of the specific way the crime was committed.
CONSTITUTIONAL AVOIDANCE PRINCIPLES AND FAIR-NOTICE
The United States argues that practical and constitutional concerns necessitate adoption of a fact-specific approach for applying § 924(c)(3)(B). The United States claims that when an otherwise unconstitutional statute has an alternative reading that would pass constitutional muster, the constitutional interpretation should take precedence. In this case, the United States maintains, reading § 924(c)(3)(B) to require a categorical approach would render the statute’s language unconstitutionally vague under Johnson and Dimaya; thus, a reading that uses the narrower fact-specific approach should be adopted to avoid the vagueness concerns. The United States asserts that although a categorical approach may be appropriate in the context of prior convictions, the “nature” of a prior conviction and that of the current offense are different. The United States adds that the nature of prior convictions can be taken from the judicial records of those convictions, while the nature of a current offense is the defendant’s particularized conduct in relation to the crime. This is why the current statute suggests a fact-specific approach, contends the United States, while other similarly worded statutes—which refer to prior convictions—were held to require a categorical approach.
Davis and Glover contend that the government’s constitutional concerns are flawed because they would disregard the rule of lenity. Davis and Glover claim that lenity prevents expansive statutory interpretations that create uncertain application, and rests the defining authority with Congress and not the courts. Further, Davis and Glover maintain that avoidance guards against separation-of-power concerns by presuming that Congress passes legislation that adheres to the Constitution. Davis and Glover also claim that the rule of lenity imposes a fair-warning requirement, as mandated by the Constitution. Applying this principle of fair-warning, argue Davis and Glover, would require the court to apply a narrower categorical reading over a broader fact-based reading unless the statute clearly requires a fact-specific approach. Davis and Glover assert that a categorical approach puts the public on notice about which actions constitute statutory offenses. Finally, Davis and Glover maintain that in lieu of a different interpretation, avoidance is not applicable because it violates the separation of powers by having the court subvert Congress’s intent and infringe on Congress’s exclusive authority to determine crimes and punishments.
VALIDITY OF RESPONDENTS’ § 924(c) CONVICTIONS
The United States argues that although the jury instructions did not ask the jury to determine whether the defendants’ conduct “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 lack thereof was a harmless error. The defendants’ conduct, the United States asserts, of using a short-barreled shotgun while threatening victims to comply with demands satisfied the substantial risk requirement beyond a reasonable doubt. The United States maintains that “physical force” includes relatively minor forms of injury such as slapping, and the defendants in this case exhibited far greater force. At a minimum, the United States posits, the case should be remanded so the jury can receive different instructions.
Davis and Glover argue that, in the event the court adopts a fact-specific inquiry, the convictions should not be reinstated. Davis and Glover claim that the incorrect instructions do not constitute a simple harmless error because they were not given the opportunity to contest to a jury whether their conduct presented a “substantial risk” of force. Going further, Davis and Glover contend that reinstating the convictions under the new analysis would constructively amend those indictments which can only be reinstated by the jury itself and not the court. According to Ashton v. Kentucky, Davis and Glover assert that convictions made under “an unconstitutional interpretation of a statute” cannot be sustained under a correct interpretation on appeal. Finally, Davis and Glover claim that the inquiry under the fact-specific approach requires a showing that the criminal conspiracy act always involves “a substantial risk of physical force”––which the conduct in question does not.
THE ROLE OF JURIES IN DECIDING § 924(c)’S RESIDUAL CLAUSE CLAIMS
Federal statutes require recognition of substantial risk of conduct “on a particular occasion,” the United States argues, and the jury is especially well-situated to make such determinations because they analyze the same evidence to find the elements described in a statute. The United States claims that a fact-specific approach increases the fairness of the trial by allowing another opportunity for jury determination. The United States also posits that juries have a long history of making risk determinations on the facts and that a jury would be well equipped to do the same under § 924(c).
Writing in support of Davis and Glover, the National Association of Federal Defenders (“NAFD”) argues that the jury is not the proper judicial vehicle to determine whether the defendant’s conduct constitutes a “crime of violence.” The NAFD maintains that juries should not make determinations as to what constitutes a “crime of violence” because definitions are determinations of law. The NAFD further asserts that if the residual clause is to be changed to a factual element for the jury, then many prisoners will likely bring a collateral review of their claims based on the new construction.
SEPARATION OF POWERS BETWEEN CONGRESS AND THE COURTS
The United States argues that adhering to the doctrine of constitutional avoidance and holding the statute valid would maintain separation of powers. The United States further notes that Congress revised the scope of the statute in 1984 to reach “any felony which carries a substantial risk of [physical] force.” The United States maintains that a categorical approach would be a judicial repeal of the 1984 amendment because such an approach would limit the eligible felony offenses.
The National Association of Criminal Defense Lawyers (“NACDL”), writing in support of Davis and Glover, claims that a court, confronted with identical statutory language, may adjust the meaning of the statute instead of presuming Congress’s intent to use the same meaning. The NACDL further asserts that threats of reinterpretation of statutes for repeat litigants may cause Congress to fashion laws that are extensively vague and allow courts or administrative agencies the ability to interpret the law seriatim.
INVALIDATION IMPLICATIONS ON CURRENT AND POTENTIAL CONVICTIONS
The United States argues that the invalidation of § 924(c)(3)(B) would hinder proper enforcement of federal criminal law and would immunize criminals whose conduct does not fall under subsection (A) of the statute. This would include, the United States asserts, criminals who commit arson or kidnapping—crimes which have been held by lower courts to be outside the elements clause’s definition of a “crime of violence.” Further, the United States maintains that if § 924(c)(3)(B) were invalidated, then individuals who intend to use firearms in furtherance of a conspiracy with a “substantial risk” of force might escape liability. The United States also warns that invalidation would lead to currently incarcerated individuals being placed back into the community. The United States posits that striking down the residual clause would allow defendants who committed “crime[s] of violence” to challenge their convictions and potentially be released.
The NAFD counters that individuals are normally immunized in instances of unconstitutional statutes such as those in Johnson and Dimaya, and if there were an injustice in doing so, the court would employ a scheme like that suggested by the government. Additionally, concerns about unprosecuted individuals are misplaced, the NAFD maintains, because such individuals can still be held culpable under § 924(c)(3)(A) or other federal statutes. The NAFD also argues that a fact-specific approach would enable prosecutors to engage in arbitrary and racially-discriminatory enforcement. Further, the NAFD asserts, section 924(c) indictments are often used as methods to induce guilty pleas, employing the threat of exorbitant jail time.