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January 24, 2019

En banc Fourth Circuit, splitting 8-7, finds key clause of § 924(c) mandatory-minimum statute unconstitutionally vague

A helpful reader made sure I did not miss the Fourth Circuit delivery today of over 100 pages of debate over vagueness challenges to the application of “crime of violence” as set forth in 18 U.S.C. § 924(c)(3)(B) in the form of an en banc ruling in US v. Simms, No. 15-4640 (4th Cir. Jan. 24, 2019) (available here). Here is the start of the majority opinion:

Joseph Decore Simms was convicted of brandishing a firearm in connection with a “crime of violence,” as defined in 18 U.S.C. § 924(c)(3)(B).  He appeals, contending that § 924(c)(3)(B), as long understood, is unconstitutionally vague. The Government concedes this point but urges us to abandon the settled meaning of the statute and employ a new definition of “crime of violence.”

We cannot do so. Neither the statutory language nor controlling precedent offer any support for the Government’s proposed reinterpretation.  Rather, the text and structure of § 924(c)(3)(B) plainly set forth a definition of “crime of violence” that fails to comport with due process.  Accordingly, we reverse and remand for further proceedings consistent with this opinion.

The majority needs about 40 pages to explain its conclusions, and then we get a lengthy concurrence and a series of dissents. Judge Wilkinson's dissent has this notable starting paragraph:

Once upon a time, now seemingly a geologic age ago, the federal judiciary appeared sold on the inherent advantages that trial courts and trial juries bring to fact-finding in our criminal justice system.  No longer.  My colleagues in the majority ably demonstrate that application of the categorical approach to 18 U.S.C. § 924(c)(3)(B) saddles that statute with a fatal constitutional infirmity.  My colleagues in dissent — whom I join — ably demonstrate why that infirmity need not exist; the better reading of the statute avoids it by applying the case-specific approach in place of the categorical.  I write separately to further explain how application of the categorical approach here is part of a troubling trend: the gratuitous conversion of issues of fact into questions of law; the usurpation of authority by appellate courts and the resultant atrophy of trial courts’ fact-finding function.

Notably, the issue in this case is now before SCOTUS after its grant three weeks ago in US v. Davis.  So, if you are not content with 100 pages on this issue today (coming a few months after the Eleventh Circuit gave us 150 pages coming out the other way), you can look forward to full SCOTUS briefing and more in the months ahead.

January 24, 2019 at 09:24 PM | Permalink


My understanding of statutory interpretation in criminal matters is that if a criminal statute is found to be unConstitutional, then it was unConstitutional from the beginning, from the day the statute was enacted into law. This new rule clearly applies to other pipeline cases that are pending on appeal in the Fourth Circuit now. In addition, other defendants convicted of the same crime may be able to file 2255 motions or 2241 petitions for habeas corpus, attacking their convictions as being based upon an unConstitutionally vague statute. And former inmates, who have completely served out their sentences might also be able to file Petitions for Writs of Error Coram Nobis, to have their convictions vacated and set aside. It will certainly be interesting to see what the Supremes do with this issue. The ramifications are large.

Posted by: James Gormley | Jan 24, 2019 9:43:49 PM

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