In United States v. Davis, No. 18-431 (June 24, 2019), the United States Supreme Court held that 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague. Justice Gorsuch wrote the 5 to 4 opinion of the Court, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Kavanaugh dissented, joined by Justices Thomas and Alito, and by Chief Justice Roberts as to all but Part II-C.
Respondents Maurice Davis and Andre Glover were each convicted after jury trial on one count of conspiracy to commit Hobbs Act robbery; three counts of Hobbs Act robbery; and two counts of brandishing a firearm during a “crime of violence,” a violation of 18 U.S.C. § 924(c)(1)(B)(i). Section 924(c) authorizes heightened criminal penalties for using, carrying or possession a firearm in connection with a “crime of violence or drug trafficking crime.” “Crime of violence” is defined in two subparts: (1) the elements clause, § 924(c)(3)(A); and (2) the residual clause, § 924(c)(3)(B) (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”).
Prior to trial, respondents moved to dismiss their § 924(c) counts. They argued that Hobbs Act robbery and conspiracy to commit Hobbs Act robbery did not qualify as crimes of violence under § 924(c)(3)(A)’s elements clause and that § 924(c)(3)(B)’s residual clause definition of “crime of violence” is unconstitutionally vague. The district court denied the motions and imposed a consecutive term of 120 months imprisonment on the first § 924(c) count, and a consecutive term of 300 months on the second § 924(c) count, to run consecutive to each respondents’ term of imprisonment for the other counts.
After the court of appeals affirmed, the Supreme Court decided Sessions v. Dimaya, 138 S.Ct. 1204 (2018) (holding the residual clause of “crime of violence” definition in 18 U.S.C. § 16(b) is unconstitutionally vague). The Court granted respondents’ then-pending petitions for certiorari, vacated the judgements of the court of appeals, and remanded for further consideration in light of Dimaya. The court of appeals struck down § 924(c)(3)(B) as unconstitutionally vague and concluded that conspiracy to commit Hobbs Act robbery could only qualify as a “crime of violence” under § 924(c)(3)(B).
The residual clause definition of “crime of violence” in § 924(c) is substantially similar to the residual clause definition of “violent felony” in the Armed Career Criminal Act, and nearly identical to the residual clause definition of “crime of violence” in 18 U.S.C. § 16(b), which the Court found unconstitutionally vague in Johnson v. United States, 135 S. Ct. 2551 (2015) and Dimaya, respectively. In each of those cases, judges were required to use a “categorical approach” to determine whether an offense qualified as a violent felony or crime of violence—meaning that judges had to disregard how the defendant actually committed the offense and instead imagine the degree of risk that would attend the idealized “ordinary case” of the offense.
In Davis, although the courts and government had long understood § 924(c)(3)(B) to require the same categorical approach, the government urged the Court to instead require a “case-specific approach” which looks to the actual conduct of the defendant for which the defendant is being prosecuted and let the jury decide it (or defendant admit to it in his plea). The Court rejected the government’s invitation to abandon the categorical approach, finding no support for the government’s alternative “case specific” approach in § 924(c)s text, context, and history.
What’s more, the Court repudiated the government’s reliance on the canon of constitutional avoidance, explaining:
With all this statutory evidence now arrayed against it, the government answers that it should prevail anyway because of the canon of constitutional avoidance. Maybe the case-specific approach doesn’t represent the best reading of the statute—but, the government insists, it is our duty to adopt any “‘fairly possible’” reading of a statute to save it from being held unconstitutional. Brief for United States 45.6 We doubt, however, the canon could play a proper role in this case even if the government’s reading were “possible.” True, when presented with two “fair alternatives,” this Court has sometimes adopted the narrower construction of a criminal statute to avoid having to hold it unconstitutional if it were construed more broadly. (citations omitted). But 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. Yet tha is exactly what the government seeks here. Its case-specific reading 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. (citation omitted)
Employing the avoidance canon to expand a criminal statute’s scope would risk offending the very same due process and separation-of-powers principles on which the vagueness doctrine itself rests. . . .
Merits briefing is available on the Supreme Court’s website, here. The Training Division provides resource materials for defending federal firearm cases.