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January 4, 2019

Supreme Court grants cert on vagueness challenges to 924(c) provision in wake of Johnson and Dimaya

As detailed in this new order list, the US Supreme Court today granted certiorari in a number of new cases.  The cases involving Maryland and North Carolina partisan-gerrymandering are sure to get the most attention, but criminal law fans should be excited about the grant in US v. Davis, No. 18-431, in which the feds petitioned for review of this question:

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

This paragraph from the government's petition for cert explains why and how federal prosecutors are eager to distinguish the statutory provision at issue in this case from those struck down in Sessions v. Dimaya, 138 S. Ct. 1204 (2018) and Johnson v. United States, 135 S. Ct. 2551 (2015):

Although the government has previously advocated an ordinary-case categorical approach to the determination whether an offense constitutes a “crime of violence” under Section 924(c)(3)(B), nothing in the statute or the decisions of this Court requires such an approach.  Section 924(c)(3)(B)’s subsection-specific “crime of violence” definition is applicable only to the conduct for which the defendant is currently being prosecuted, not to any conduct for which the defendant may have been convicted in the past.  It can naturally be read as inviting a case-specific determination as to whether that currently at issue conduct — not the hypothetical conduct of an “ordinary case” — satisfies the substantial-risk test in 18 U.S.C. 924(c)(3)(B).  And, so construed, Section 924(c)(3)(B) does not implicate the constitutional infirmity with the ordinary-case approach that was identified in Dimaya and Johnson v. United States, 135 S. Ct. 2551, 2561 (2015).  Indeed, the Court in those cases “d[id] not doubt” that such a case-specific approach, involving a jury finding beyond a reasonable doubt about the “real-world conduct” proved in the case, would be fully constitutional.  Dimaya, 138 S. Ct. at 1215 (quoting Johnson, 135 S. Ct. at 2561).

Got that? Simple stuff here, and simply fascinating to think about whether the Dimaya five (perhaps joined by the new guy) could be prepared to continue its vagueness movement through the bowels of federal law.

January 4, 2019 at 04:57 PM | Permalink


The same words in the same order were held unconstitutionally vague in Dimaya. It ought to be simple

Posted by: RW | Jan 4, 2019 6:21:32 PM

The government is hoping Gorsuch changes his vote due to what he said in his Dimaya concurrence. And they're then also hoping "the new guy" (who liked beer and still likes beer) agrees with the Dimaya dissent.

The government is now trying to say that Dimaya is different because in Dimaya, in order to determine whether the statutory language was satisfied, all agreed a general "categorical approach" applied, which would only examine what an "ordinary case" for that offense would cause. The defendant's actual conduct was entirely irrelevant. Put another way, the statute in Dimaya required a court to ask "whether 'the ordinary case' of an offense" would involve the requisite risk, ignoring what actually occurred in the defendant's specific offense. That is what was held to be unconstitutionally vague.

In a concurrence, Gorsuch pointed out that “no party” in Dimaya had argued against a categorical approach and, therefore he “proceeded on the premise” that a categorical approach needed to be applied when determining whether an offense was a crime of violence under Section 16(b). He stated that he “remain[ed] open to different arguments” in a future case.

Well, Davis is that future case. In Davis, the government is trying to say that 924(c) does not require a categorical approach when determining whether an offense is a crime of violence under Section 924(c). Instead, the government argues that 924(c) should be read to require a “case-specific approach” that would allow an examination into the defendant's actual conduct.

Therefore, in my view, the argument in Davis will NOT be over vagueness issues. It will be over statutory interpretation issues as to whether the statutory language requires a "categorial approach" or a "case-specific approach."

Notably, the 3 dissenting Justices in Dimaya (Thomas, Kennedy, Alito) felt Section 16(b) did not required a categorical approach.

Posted by: DJ | Jan 5, 2019 1:54:41 PM

And my understanding is that the categorical approach was adopted because trying to examine the particulars of prior convictions is fraught with difficulties (missing or contested records being just one example). That should be much less pertinent when the government already has to marshal evidence regarding the current offense before the court.

Posted by: Soronel Haetir | Jan 5, 2019 4:03:50 PM

On additional thought, I think the first argument is going to be statutory interpretation. But, even still, why does a "case-specific" approach solve the vagueness problem?

Could a legislature pass a statute that states: "No person shall engage in an act 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 that act."

Would that pass constitutional muster? Does that put people on notice of what is prohibited? I think not.

Posted by: DJ | Jan 5, 2019 5:36:10 PM

Doug, thanks for the heads up. will definitely follow Davis, not for the "crime of violence" issue in federal court, but for the state cases I am working on where the only aggravating factor is suspect on vagueness grounds.

For example, suppose the only aggravator sought by the state is "victim was very young, or very old, or an amount of drugs possessed was "unusually large." Or, the biggest one of all,
the killing was especially heinous, atrocious, or cruel."

If there is only one ag by which the State seeks to expose a defendant to a more severe punishment, Alleyene says that the ag is an "element" of a "greater and separate aggravated crime."

If Thomas is right, I think he is, in his opinion for the majority in Alleyene, then I think single aggravators like the ones described above, can't pass vagueness muster when used as part of a definition of a crime.



Posted by: bruce cunningham | Jan 6, 2019 2:29:06 PM

The big news here is that if the Government loses in Stokeling, as it may this morning, a win in Davis will mean that crimes that don’t qualify under section 924(c)(3)(A) —such as Hobbs Act robberies or conspiracy to commit such robbieres— will still count as a crime of violence under section 924(c)(3)(B). So the court may take with one hand and give with the other.

Posted by: Demon | Jan 8, 2019 9:26:12 AM

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