Case No. 18-431 | 5th Cir.
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In Davis, the Court will address whether the 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. Petition for Writ of Certiorari at I, United States v. Davis, No. 18-431 (U.S. filed Oct. 3, 2018). The issue is one in a line of Supreme Court cases that followed the landmark decision in Johnson v. United States. 135 S. Ct. 2551 (2015). Johnson held that the residual clause of the Armed Criminal Career Act, which defined “violent felony” to include “any felony that ‘involves conduct that presents a serious potential risk of physical injury to another,’” was unconstitutionally vague. Johnson, 135 S. Ct. at 2555, 2557 (citing 18 U.S.C. § 924(e)(2)(B) (2012)).
Since 2015, there have been several challenges to statutes with similar language to the statute struck down in Johnson. Davis presents another such challenge for the Court. In 2018, (after the convictions of United States v. Davis defendants Davis and Glover), the Court held in Sessions v. Dimaya, that language identical to Section 924(c)(3)(b) was unconstitutionally vague. 138 S. Ct. 1204, 1210 (2018).
In the original jury trial, Maurice Davis and codefendant Andre Glover were convicted of conspiracy to commit robbery and multiple counts of robbery, all in violation of the Hobbs Act, 18 U.S.C. § 1951(a). They were also convicted on two counts of “brandishing a short-barreled shotgun during a crime of violence,” in violation of 18 U.S.C. § 924(c)(1)(B)(i). Petition for Writ of Certiorari at 5, United States v. Davis, No. 18-431 (U.S. filed Oct. 3, 2018). Section 924(c)(3)(B) defines “crime of violence” to include a crime “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.” The Fifth Circuit upheld their convictions. United States v. Davis, 677 F. App’x 933, 936–37 (5th Cir. 2017), cert. granted, judgment vacated, 138 S. Ct. 1979 (2018), and cert. granted, judgment vacated sub. nom., Glover v. United States 138 S. Ct. 1979 (2018).
On appeal from the Fifth Circuit, the Supreme Court vacated the lower court’s affirmances, and remanded the case for reconsideration in light of Dimaya. Davis v. United States, 138 S. Ct. 1979. On remand, the Fifth Circuit held the clause unconstitutional, applying the “categorical approach.” Under the categorical approach applied in Dimaya, courts do not look to the particular facts underlying a conviction, but to the elements of the crime, and whether “‘the ordinary case’ of an offense poses the requisite risk.” Dimaya, 138 S. Ct. at 1207 (citing James v. United States, 550 U.S. 192, 208 (2007)). The Fifth Circuit wrote that “[b]ecause the language of the residual clause here and that in § 16(b) [the statute at issue in Dimaya] are identical, this court lacks the authority to say that, under the categorical approach, the outcome would not be the same. We hold that § 924(c)’s residual clause is unconstitutionally vague.” United States v. Davis, 903 F.3d 483, 486 (5th Cir. 2018), cert. granted, 139 S. Ct. 782 (2019).
This ruling contrasts with that of the Second Circuit, which held that the statute was not unconstitutionally vague because it “can be applied to a defendant’s case-specific conduct.” United States v. Barrett, 903 F.3d 166, 178 (2d Cir. 2018). This circuit split sets up a showdown at the Supreme Court. The government argues that the categorical approach applied by the Fifth Circuit was incorrect, and instead that the case should be assessed using a “case-specific” approach. Petition for Writ of Certiorari at 12, Davis, No. 18-431 (U.S. filed Oct. 3, 2018). Under such an approach, courts would assess the defendant’s conduct during the actual offense. Id. The defendant argues that the categorical approach should apply. Brief for Respondent at 12, Davis, No. 18-431 (U.S. filed Mar. 14, 2019).
It now falls to the Supreme Court to decide between the case-specific and the categorical approaches.