Irma Ovalles v. United States
Opinion
NEWSOM, Circuit Judge:
The question before us is whether one of the key provisions of an important federal criminal statute,
This case is in some respects a successor to
Johnson v. United States
, --- U.S. ----,
On the flip side,
Johnson
and
Dimaya
also make clear-and it is common ground here-that if § 924(c)(3)'s residual clause is instead interpreted to incorporate what we'll call a "conduct-based approach" to the crime-of-violence determination, then the provision is
not
unconstitutionally vague. As its name suggests, the conduct-based approach, in stark contrast to the categorical, focuses not on formal legal definitions and hypothetical "ordinary case[s]," but rather on the real-world facts of the defendant's offense-
i.e.
, how the defendant actually went about committing the crime in question. And as the Supreme
Court emphasized in
Johnson
-and then reiterated in
Dimaya
-there is no reason to "doubt the constitutionality of laws that call for the application of a qualitative standard such as 'substantial risk' to real-world conduct."
Johnson
,
The obvious (and decisive) question, then: Which is it here-categorical or conduct-based? Because we find ourselves at this fork in the interpretive road-the categorical approach imperiling § 924(c)(3)'s residual clause, a conduct-based reading saving it-we invoke the canon of "constitutional doubt." Pursuant to that "elementary rule," the Supreme Court has long held, "every reasonable construction must be resorted to in order to save a statute from unconstitutionality."
Hooper v. California
,
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NEWSOM, Circuit Judge:
The question before us is whether one of the key provisions of an important federal criminal statute,
This case is in some respects a successor to
Johnson v. United States
, --- U.S. ----,
On the flip side,
Johnson
and
Dimaya
also make clear-and it is common ground here-that if § 924(c)(3)'s residual clause is instead interpreted to incorporate what we'll call a "conduct-based approach" to the crime-of-violence determination, then the provision is
not
unconstitutionally vague. As its name suggests, the conduct-based approach, in stark contrast to the categorical, focuses not on formal legal definitions and hypothetical "ordinary case[s]," but rather on the real-world facts of the defendant's offense-
i.e.
, how the defendant actually went about committing the crime in question. And as the Supreme
Court emphasized in
Johnson
-and then reiterated in
Dimaya
-there is no reason to "doubt the constitutionality of laws that call for the application of a qualitative standard such as 'substantial risk' to real-world conduct."
Johnson
,
The obvious (and decisive) question, then: Which is it here-categorical or conduct-based? Because we find ourselves at this fork in the interpretive road-the categorical approach imperiling § 924(c)(3)'s residual clause, a conduct-based reading saving it-we invoke the canon of "constitutional doubt." Pursuant to that "elementary rule," the Supreme Court has long held, "every reasonable construction must be resorted to in order to save a statute from unconstitutionality."
Hooper v. California
,
Accordingly, we hold that § 924(c)(3)(B) prescribes a conduct-based approach, pursuant to which the crime-of-violence determination should be made by reference to the actual facts and circumstances underlying a defendant's offense. To the extent that our earlier decision in
United States v. McGuire
,
I
A
Under
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) 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.
Importantly here, this Court held in
United States v. McGuire
that the question whether a predicate offense qualifies as a "crime of violence" under either subsection is one that a court "must answer 'categorically'-that is, by reference to the elements of the offense, and not the actual facts of [the defendant's] conduct."
B
In 2010, Irma Ovalles was charged by information with six robbery- and carjacking-related offenses, all of which arose out of what can only be described as a three-day crime binge. As particularly relevant here, Ovalles was charged with (1) attempted carjacking in violation of
The government then made a comprehensive factual proffer detailing Ovalles's involvement in the crimes. In general, the proffer summarized the evidence demonstrating that Ovalles and her co-conspirators (1) robbed a grocery store while armed with baseball bats, then (2) still wielding the bats, carjacked a Dodge Ram, then (3) carjacked a Toyota 4-Runner, pistol-whipping its owner, then (4) attempted to carjack a Chevy Venture-more on this one below-and finally (5) carjacked a Ford F-150 at gunpoint. More specifically, concerning the attempted carjacking of the Chevy Venture-during which one of Ovalles's accomplices fired an AK-47, and which therefore serves as the predicate offense for Ovalles's § 924(c) conviction-the government's proffer explained as follows:
They see a family getting out of a Chevy Venture in Clayton County, Georgia, and as the family is getting out of their car, these two defendants along with their co-conspirators go up to the family and demand the keys to the car and demand the car. Now, they have a baseball bat and guns with them. There's a juvenile, a 13-year-old female, who is part of that family group of victims. They hit that juvenile in the mouth with a baseball bat. The damage to her I am sure will be addressed at sentencing. It was not-she did not go to the hospital. Let me say that.
They are demanding the keys. Somebody comes out of the apartment complex where this is happening and that person has a gun. He then confronts the assailants .... They flee, not taking the Chevy Venture, which is why it is an attempted carjacking.
The government would show that the Chevy Venture traveled in interstate commerce, that it was not made in the State of Georgia. The government would prove it was these defendants not only through their confessions as to this event, also through the victims' testimony. They do I.D. the defendants in this particular case.
On the way out of the apartment complex ... co-conspirator ... Jerry Arriaga ... has an AK-47 style assault rifle and he then discharges that gun several times towards the victim family, the guy who came to rescue them, who was armed, and the car, and that is the basis of Count Five, the use of a firearm during and in relation to a crime of violence.
With respect to each of the charges-including, as relevant here, the attempted-carjacking and § 924(c) counts-Ovalles stated that she had no "material disagreement with what the government sa[id] it could prove ...." Having heard the government's summary of the evidence against her, Ovalles pleaded guilty to each of the charged offenses, acknowledged that her pleas were voluntary, and explained that she was so pleading because she was "in fact guilty as charged in the criminal information."
The district court thereafter sentenced Ovalles to serve 120 months in prison on the § 924(c) count-which, per the statute, the court imposed to run consecutively to the concurrent 108-month terms on the remaining charges. Ovalles did not object to her sentences, nor did she file a direct appeal.
C
Several years later, Ovalles filed a motion for relief under
The district court denied Ovalles's § 2255 motion, reasoning that § 924(c)(3)'s residual clause did "not suffer from the same unpredictability" as the ACCA's. The court subsequently granted Ovalles a certificate of appealability on the question whether § 924(c)(3)(B) is unconstitutionally vague under Johnson .
A panel of this Court affirmed the district court's decision. For our purposes, the panel's opinion did two significant things. First, in accordance with (and citing to) our earlier decision in
McGuire
, it held that the question whether Ovalles's attempting-carjacking offense constitutes a "crime of violence" within the meaning of § 924(c)(3) had to be answered using the categorical approach.
See
Ovalles v. United States
,
Not long after the panel issued its opinion, the Supreme Court decided
Sessions v. Dimaya
, --- U.S. ----,
In light of the Supreme Court's decision in
Dimaya
, we vacated the panel's opinion and took this case en banc to determine (1) whether
II
At the outset, some table-setting is in order. How exactly did we get here? Why did the Supreme Court conclude in both Johnson and Dimaya that the residual clauses before it were unconstitutionally vague, and what do the decisions in those cases tell us about § 924(c)(3)'s own residual clause? Here's how-and why, and what.
We begin with a deeper dive into
Johnson
. As already explained briefly,
Johnson
involved the ACCA, which prescribes a mandatory minimum 15-year sentence for any person who already "has three previous convictions ... for a violent felony ... committed on occasions different from one another."
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]
In striking down the ACCA's residual clause as unconstitutionally vague, the Supreme Court in
Johnson
emphasized "[t]wo features."
Far more problematic, the Court explained, was the fact that the ACCA's residual clause had long been construed to incorporate the categorical approach-which, the Court observed, entails a "speculative," "idealized" analysis that "ties the judicial assessment of risk to a judicially imagined 'ordinary case' of a crime, not to real-world facts or statutory elements," and thus "leaves grave uncertainty about how to estimate the risk posed by a crime."
Next,
Dimaya
. There, the Court considered a provision of the INA that renders an alien removable if he is "convicted of an aggravated felony at any time after admission."
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and 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.
In
Dimaya
, the Supreme Court voided § 16's residual clause (again, as incorporated in the INA) as unconstitutionally vague, concluding that it shared the two features that had doomed the ACCA's residual clause in
Johnson
-namely, (1) a fuzzy "substantial risk" standard and (2) incorporation of the categorical approach to determining the violence of the underlying crime.
An important caveat about Dimaya 's application of the categorical approach to invalidate § 16's residual clause: Only a plurality of the Court concluded that the statute actually requires the categorical approach. Justice Gorsuch, who provided the decisive fifth vote, concurred separately on the assumption-but not a determination-that § 16(b) incorporates the categorical approach. Id. at 1232 (Gorsuch, J., concurring in part and concurring in the judgment) (stating that he was "proceed[ing] on the premise" that the categorical approach applied). Justice Gorsuch emphasized that he "remain[s] open to different arguments about [Supreme Court] precedent and the proper reading of language like" that found in § 16(b), and that he "would address them in another case, whether involving the INA or a different statute, where the parties have a chance to be heard and we might benefit from their learning." Id . at 1233.
So what do
Johnson
and
Dimaya
portend for § 924(c), which again, as relevant here, makes it a federal offense to use, carry, or possess a firearm in connection with a "crime of violence"-which again, as relevant here, means a felony offense that "by its nature, involves a substantial risk that physical force ... may be used in the course of committing the offense,"
Allow us first to state the obvious: Section 924(c)(3)'s residual clause is identical-in every jot and tittle-to § 16's, which the Supreme Court struck down in
Dimaya
. Next, the less obvious but no less true: While the panel decision in this case offered several distinctions between § 924(c)(3)'s residual clause and the ACCA's-which at the time had recently been invalidated in
Johnson
-the Supreme Court's intervening decision in
Dimaya
(in a portion of the opinion joined by a majority of the justices) demolished all of them. As already noted, the panel first emphasized that § 924(c)(3)'s residual clause refers not to the risk of "physical injury" but to the risk of "physical force," which it said was "much more definite."
Accordingly, it seems clear that if we are required to apply the categorical approach in interpreting § 924(c)(3)'s residual clause-as the panel did, per our earlier decision in
McGuire
, and as the Supreme Court did in voiding the residual clauses
before it in
Johnson
and
Dimaya
-then the provision is done for. If, by contrast, we are
not
required to apply the categorical approach in interpreting § 924(c)(3)(B), then there is every reason to believe that the provision will survive, notwithstanding its incorporation of a "substantial risk" term-because, as the Supreme Court said in
Johnson
and then reiterated in
Dimaya
, there is no reason to "doubt the constitutionality of laws that call for the application of a qualitative standard such as 'substantial risk' to real-world conduct."
Johnson
,
III
That stark divergence-in which the categorical approach dooms § 924(c)(3)'s residual clause, while a conduct-based interpretation salvages it-tees up the rule of "constitutional doubt." Simply stated, that canon of construction provides that "[a] statute should be interpreted in a way that avoids placing its constitutionality in doubt." Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 247 (2012).
As the Supreme Court has explained it, the constitutional-doubt canon "is a tool for choosing between competing plausible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts."
Clark v. Martinez
,
The
question here, therefore, is whether § 924(c)(3)'s residual clause is in fact "susceptible of multiple interpretations,"
Jennings
, 138 S.Ct. at 836 -and more particularly, whether it is "plausible,"
Clark
,
In assessing whether § 924(c)(3)'s residual clause truly
compels
the categorical approach, we begin at the beginning: Where did this "categorical approach" come from? It's certainly not, it seems to us, the most intuitive way of thinking about a particular crime's risk of violence. Surely the usual means of considering that issue would be to account for all of the specific circumstances surrounding the offense's
commission-
i.e.
, the actual facts. If you were to ask John Q. Public whether a particular crime posed a substantial risk of violence, surely he would respond, "Well, tell me how it went down-
what happened
?" How, then, did we get to the point where, in certain circumstances, reviewing courts are required to ignore the real-world facts in favor of a sterile academic inquiry into what the
Johnson
Court called "speculative," "idealized," "judge-imagined abstraction[s]"?
That story follows.
The Supreme Court initially conceived the categorical approach in
Taylor v. United States
,
First, the Court concluded that when read in context, § 924(e)(2)(B)(ii)"most likely refers to the elements of the statute of conviction, not to the facts of each defendant's conduct."
Second, the
Taylor
Court stressed that in the ACCA context, "the practical difficulties and potential unfairness of a factual approach [would be] daunting."
For these reasons-the text's focus on "convictions" and the impracticability (and unfairness) of effectively re-litigating the seriousness of stale crimes long after the fact-the
Taylor
Court concluded that for purposes of deciding whether a prior conviction constitutes a "violent felony," the "only plausible interpretation" of § 924(e)(2)(B)(ii) is that it "generally requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense," and not to the actual circumstances of the defendant's crime.
The Supreme Court next applied the categorical approach in
Leocal v. Ashcroft
,
That, for present purposes, brings us (back) to
Johnson
, in which, as already explained, the Supreme Court applied the categorical approach in the course of invalidating the ACCA's residual clause.
See
Last came
Dimaya
, in which the Court applied the categorical approach in striking down § 16's residual clause-again, at least as that provision is incorporated by the INA. A four-justice plurality concluded that § 16(b) incorporates the categorical approach for a handful of (now increasingly familiar) reasons. First, as in
Johnson
, the plurality noted that the government hadn't advocated a conduct-based approach: "To begin where
Johnson
did, the Government once again 'has not asked us to abandon the categorical approach in residual-clause cases.' "
Dimaya
, 138 S.Ct. at 1217 (quoting
Johnson
,
Third, the plurality explained that "[b]est read," the text of § 16's residual clause incorporates the categorical approach.
Simple references to a 'conviction,' 'felony,' or 'offense,' ... are 'read naturally' to denote the 'crime as generally committed.' And the words 'by its nature' in § 16(b) make that meaning all the clearer. The statute, recall, directs courts to consider whether an offense, by its nature, poses the requisite risk of force. An offense's 'nature' means its 'normal and characteristic quality.'
Dimaya , 138 S.Ct. at 1217 (internal citations omitted). Fourth, and relatedly, the plurality said that "the same conclusion follows if we pay attention to language that is missing from § 16(b)." Id. at 1218. In particular, the plurality reasoned, "the absence of terms alluding to a crime's circumstances, or its commission, makes a [conduct]-based interpretation an uncomfortable fit." Id.
Finally, following Taylor and Johnson , the plurality stressed the "utter impracticability" of applying a conduct-based approach to a statute, like § 16(b), that requires consideration of prior convictions-in particular, the "daunting difficulties of accurately reconstructing, often many years later, the conduct underlying a conviction." Id. (internal quotation marks omitted).
As already noted, Justice Gorsuch concurred separately in Dimaya , explaining that he was "proceed[ing] on the premise"-without definitively concluding-that as used in the INA, § 16(b) incorporates the categorical approach. Id. at 1232 (Gorsuch, J., concurring in part and concurring in the judgment). He gave several reasons for his circumspection: (1) "because no party [had] argued for a different way to read" the provision at issue; (2) because Supreme Court precedent (by which he presumably meant Leocal ) "seemingly require[d]" application of the categorical approach to § 16(b) ; and (3) "because the government itself ha[d] conceded (repeatedly) that the law compels" the categorical approach in immigration-related § 16(b) cases. Id . He emphasized, though, that he would "remain open" in future cases "to different arguments about our precedent and the proper reading of language like" that found in § 16(b). Id. at 1233.
* * *
So ... what are the takeaways? What factors have led the Supreme Court to conclude that a statute requires the categorical approach? The decisions interpreting the ACCA and § 16 reveal that the Court has historically applied the categorical approach to those statutes' residual clauses for the following reasons:
1. because the government never asked the Court to consider a conduct-based approach ( Johnson , Dimaya );
2. because the text of those statutes' operative provisions focused not on conduct, but rather on "convictions"-and thus, the Court reasoned, solely on formal legal elements ( Taylor , Johnson );
3. because those statutes' definitional provisions used terms and phrases like "offense," "felony," and "by its nature," which the Court concluded pointed toward a categorical (rather than conduct-based) inquiry ( Leocal , Dimaya );
4. because those statutes lacked any reference to the underlying crime's commission or circumstances ( Dimaya );
5. because applying the categorical approach would avoid the impracticability of requiring sentencing courts to engage in after-the-fact reconstructions of the circumstances underlying prior convictions ( Taylor , Johnson , Dimaya ); and
6. because applying the categorical approach would avoid the Sixth Amendment issues that could arise from sentencing courts making findings of fact that properly belong to juries ( Taylor , Johnson , Dimaya ).
The decisive question, it seems to us, is whether those considerations require us to interpret § 924(c)(3)'s own residual clause to incorporate the categorical approach-or whether, instead, the clause can "plausibly" be read to incorporate the conduct-based approach. For reasons explained below, we conclude that § 924(c)(3)(B) can at the very least plausibly be read to bear a conduct-based interpretation, and we therefore hold, pursuant to the canon of constitutional doubt, that because the conduct-based reading spares the residual clause from the near-certain death to which the categorical approach would condemn it, the conduct-based approach must prevail. In so doing, we join the Second Circuit, which also recently concluded-likewise applying the constitutional-doubt canon-that § 924(c)(3)(B) should be interpreted to embody the conduct-based approach.
See
United States v. Barrett
,
Although it's not particularly elegant-in fact, it's downright clunky and more than a little repetitive-there's really not a better way to assess whether the Supreme Court's own stated reasons for adopting the categorical approach in the ACCA and immigration-related § 16 contexts likewise compel a categorical interpretation of § 924(c)(3)(B) than simply to march through them, one by one.
In applying the categorical approach in both
Johnson
and
Dimaya
, the Supreme Court "first" and most prominently noted that the government hadn't advocated a conduct-based interpretation.
See
Johnson
,
Suffice it to say that things are very different here. In the wake of Johnson and Dimaya -and the ensuing drumbeat suggesting that application of the categorical approach likewise imperils § 924(c)(3)'s residual clause-the government has expressly (and at length) urged us to abandon the categorical approach to § 924(c)(3)(B) in favor of a conduct-based interpretation. See Appellee's En Banc Br. at 12-43. We have here, therefore, what the Supreme Court lacked in both Johnson and Dimaya , and what the panel lacked in McGuire -namely, the benefit of the full "adversarial testing" that is so "crucial to sound judicial decisionmaking," Dimaya , 138 S.Ct. at 1232 (Gorsuch, J., concurring in part and concurring in the judgment). 5
A second basis that the Supreme Court has highlighted in applying the categorical approach-derived from the text of the ACCA's operative provision, and specifically its reference to "convictions"-is likewise inapplicable here. As already noted, the Court in
Johnson
(relying on and quoting its earlier decision in
Taylor
) emphasized that the ACCA's operative clause "refers to a person who ... has three previous convictions for-not a person who has committed-three previous violent felonies or drug offenses."
Section 924(c)'s operative provision nowhere refers to "convictions."
See
Now, in fairness, there is some textual evidence that, on balance, might be thought to favor interpreting § 924(c)(3)(B) to incorporate the categorical approach. But it does not, we conclude, truly compel a categorical interpretation, especially when weighed against other textual and practical considerations.
In
McGuire
, we applied the categorical approach to § 924(c)(3)'s residual clause because, we said, "of the statute's terms."
In support of its determination that § 16's residual clause requires the categorical approach, the
Dimaya
plurality relied on the Court's earlier observation in
Leocal
that § 16(b)"directs our focus to the 'offense' of conviction ... rather than to the particular facts."
Dimaya
, 138 S.Ct. at 1217 (quoting
Leocal
, 543 U.S. at 7,
Ovalles's position finds some support in § 924(c)(3)'s definition of "crime of violence," which incorporates two of the three terms-"offense" and "felony"-that the
Dimaya
plurality highlighted: "[T]he term 'crime of violence' means an offense that is a felony ...."
All things considered, therefore, § 924(c)(3)'s use of the terms "offense" and "felony"-particularly when combined with the absence of the word "conviction"-would be a pretty thin reed on which to base a conclusion that the residual clause requires the categorical approach.
The strongest piece of evidence in favor of applying the categorical approach to § 924(c)(3)'s residual clause, it seems to us, is the provision's use of the phrase "by its nature": "[T]he term 'crime of violence' means an offense that is a felony and ... 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."
In
Leocal
, the Court relied in part on § 16(b)'s use of the same "by its nature" phrase to conclude that the statute "requires us to look to the elements and the nature of the offense of conviction, rather than to the particular facts relating to petitioner's crime." 543 U.S. at 7,
That is undoubtedly a reasonable interpretation of § 16(b)'s language-which, again, § 924(c)(3)'s residual clause mirrors. But importantly here-where the constitutional-doubt canon is in play-it is not a
necessary
interpretation. There are other reasonable understandings-especially of § 924(c)(3)(B), with respect to which other interpretive considerations point in the other direction.
Webster's Third
, for instance-the same dictionary that the
Dimaya
plurality cited in support of its categorical-approach interpretation of the "by its nature" language, alternatively defines the word "nature" to mean "the essential character or constitution of something."
Webster's Third New International Dictionary
1507 (2002). The
Oxford Dictionary of English
similarly defines "nature" as "the basic or inherent features, character, or qualities of something."
Oxford Dictionary of English
1183 (3d ed. 2010). It seems to us at the very least plausible that the "something[s]" to which the term "nature" alludes could be particular acts rather than (or in addition to) the "judge-imagined abstraction[s],"
Johnson
,
So, as Justice Thomas noted in Dimaya , "[o]n the one hand, the statute might refer to the metaphysical 'nature' of the offense and ask whether it ordinarily involves a substantial risk of physical force."
Dimaya , 138 S.Ct. at 1254 (Thomas, J., dissenting). So too, though, "[o]n the other hand, the statute might refer to the underlying facts of the offense that the offender committed; the words 'by its nature,' 'substantial risk,' and 'may' would mean only that an offender who engages in risky conduct cannot benefit from the fortuitous fact that physical force was not actually used during his offense." Id ."The text can bear either interpretation," and "[i]t is entirely natural to use words like 'nature' ... to refer to an offender's actual underlying conduct." Id .
To be clear, it's no answer to say, "Sure, but Justice Thomas lost in Dimaya ." As an initial matter, he was objecting there to a plurality's (not a majority's) interpretation-and in particular its interpretation of a different statute, § 16(b), that lacks many of the textual, contextual, and practical features that we conclude permit a conduct-based interpretation of § 924(c)(3)'s residual clause. Moreover, and in any event, Justice Thomas's linguistic observation about the alternative meanings of the word "nature" remains-and indeed, finds support in dueling dictionary definitions. Especially in light of the inapplicability of other reasons for applying the categorical approach to § 924(c)(3)(B), we simply aren't convinced that the phrase "by its nature" requires application of the categorical approach here.
In addition to focusing on what the controlling statutes say in assessing the categorical-approach issue, the Supreme Court has emphasized what they don't say . In Dimaya , for instance, the plurality reasoned that "the absence" from § 16"of terms alluding to a crime's circumstances, or its commission, makes a [conduct]-based interpretation an uncomfortable fit." 138 S.Ct. at 1218.
But again, § 924(c) is different. Not only (as already explained) does the statute's operative provision refer exclusively to conduct, but its definitional provision (
i.e.
, the residual clause itself) also contains conduct-based language-namely, its requirement that the risk of force arise "in the course of committing the offense."
Textual indicia aside, the Supreme Court has also emphasized practical considerations in deciding between categorical and conduct-based interpretations. As already explained, in initially devising the categorical approach in
Taylor
-and thereafter applying it in
Johnson
and
Dimaya
-the Supreme Court underscored the "utter impracticability" of applying a conduct-based approach retrospectively to determining the violence of prior crimes.
E.g.
,
Johnson
,
Importantly, the look-back problem doesn't arise with respect to § 924(c), which serves an altogether different function from the statutes at issue in
Johnson
and
Dimaya
and operates differently in order to achieve that function. The ACCA identifies "
previous
convictions" for the purpose of applying a recidivism-based sentencing enhancement to three-time felons who later possess firearms in violation of
Relatedly, echoing the earlier decision in
Taylor
, the
Dimaya
plurality acknowledged that the Court "adopted the categorical approach in part to avoid the Sixth Amendment concerns that would arise from sentencing courts' making findings of
fact that properly belong to juries." 138 S.Ct. at 1217 (internal quotation marks and citation omitted). Its point was that in reconstructing the circumstances underlying a prior crime in order to assess its risk of violence, a reviewing court could well run afoul of the rule that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt,"
Apprendi
,
Yet again, that isn't a concern here. For starters, because the jury in a § 924(c) case-unlike in, say, an ACCA case-is considering contemporaneous gun-related and predicate offenses, its role already necessarily entails consideration of the entire course of conduct charged as the underlying "crime of violence." Moreover, and significantly, the government here has conceded that whether the defendant's predicate offense constitutes a "crime of violence" within the meaning of § 924(c)(3)'s residual clause should be treated as a mixed question of fact and law to be resolved by a jury.
See
Appellee's En Banc Br. at 33-34 (citing
United States v. Gaudin
,
So where does all of this leave us? With something of a mixed bag, frankly. While some of the factors to which the Supreme Court has pointed in adopting and applying the categorical approach might be thought (on balance) to favor a similar interpretation of § 924(c)(3)(B), others cut pretty decisively in the opposite direction, toward a conduct-based approach. And in constitutional-doubt land, the tie (or the toss-up, or even the shoulder-shrug) goes to the statute-saving option-which, here, is the conduct-based interpretation. So to be clear, we needn't-and don't-conclude that textual, contextual, and practical considerations
compel
a conduct-based reading of § 924(c)(3)'s residual clause. Nor, for that matter, do we even need to find that § 924(c)(3)(B) is
best
read to incorporate a conduct-based approach. Reasonable minds-say, for instance, the minds of the (putatively) reasonable judges who join this opinion-can and will disagree about that. It is enough for us to conclude-as we think is indisputable-that § 924(c)(3)(B) is at least "plausibl[y]" (or "fairly possibl[y]") understood to embody the conduct-based approach.
See
Clark
, 543 U.S. at 381,
We therefore overrule McGuire to the extent that it requires application of the categorical approach to determine whether an offense constitutes a "crime of violence" within the meaning of § 924(c)(3)(B) and hold that the crime-of-violence determination should be made, instead, using a conduct-based approach.
IV
Having jettisoned the categorical interpretation in favor of the conduct-based approach for cases arising under § 924(c)(3)'s residual clause, we can make quick work of the contention that the clause is unconstitutionally vague in the light of
Dimaya
. It is not. The Supreme Court has repeatedly explained-and again all here agree-that the vagueness problem that plagued the ACCA and § 16, and that is asserted here, is a function of the "speculative," "idealized," "abstract" inquiries required by the categorical approach.
Johnson
,
V
That leaves us only to apply § 924(c)(3)(B)'s conduct-based approach to Ovalles's case. Given the stipulated facts before us-embodied in a written plea agreement and a detailed colloquy-doing so is remarkably straightforward.
It is common ground here that in order to convict Ovalles on the § 924(c) charge, the government would need to prove (or Ovalles would need to plead to) four distinct elements: (1) that Ovalles actually committed the underlying federal offense-here, the attempted carjacking; (2) that the attempted-carjacking offense constitutes a "crime of violence" within the meaning of § 924(c)(3) ; (3) that Ovalles knowingly used, carried, or possessed a firearm; and (4) that any use or carriage of the firearm occurred during and in relation to, or that any possession of the firearm was in furtherance of, the attempted carjacking.
See
As it pertained to the attempted-carjacking count, the information charged Ovalles with "attempt[ing] to take a motor vehicle ... from the person and presence of another, by force, violence and intimidation" with "the intent to cause death and serious bodily harm." Ovalles then executed a written plea agreement acknowledging that she understood each charge in the information-including the attempted-carjacking charge-and that "she [was] pleading guilty because she is in fact guilty of the crimes [as] charged." If attempting to steal a car "by force, violence and intimidation" and with "the intent to cause death and serious bodily harm" (as Ovalles has admitted she did) doesn't involve a "substantial risk" that physical force may be used, then it's hard to imagine what does.
Here, though, there's no need for imagination-the real-life details of Ovalles's crime, all of which she has admitted, confirm it. We won't restate in full the government's factual proffer recounting Ovalles's involvement in the three-day carjacking spree. Suffice it to say that, in general, the proffer demonstrated that Ovalles and her co-conspirators robbed a grocery store, successfully carjacked three automobiles by force, and attempted to carjack a fourth. With respect to the attempted carjacking, in particular-which, again, serves as the predicate offense for Ovalles's § 924(c) conviction-the proffer detailed that Ovalles and her co-conspirators approached a family getting out of their minivan, demanded the keys, hit the family's 13-year-old child in the face with a baseball bat, and then, in making their escape, fired an AK-47 assault rifle at the family and a Good Samaritan who had come to their aid. See supra at 1235.
Especially when layered on top of Ovalles's admission to the overtly violent charge in the information, the government's detailed factual proffer-with which Ovalles repeatedly said she had no "material disagreement"-leads inexorably to the conclusion that the attempted carjacking at issue here constitutes a "crime of violence" within the meaning of § 924(c)(3)(B). Based on the facts to which she has expressly stipulated, there simply can be no serious dispute that Ovalles recognized that her conduct posed a very real "risk" that physical force "may" be used-just, as it turns out, it was.
VI
Accordingly, we hold as follows:
1. The question whether a predicate offense constitutes a "crime of violence" within the meaning of
2. To the extent that our decision in
United States v. McGuire
,
3. As interpreted to embody a conduct-based approach, § 924(c)(3)(B) is not unconstitutionally vague.
4. In light of the particular circumstances of its commission, all of which Ovalles has expressly admitted, her attempted-carjacking offense was a "crime of violence" within the meaning of § 924(c)(3)(B).
The case is REMANDED to the panel for proceedings consistent with this opinion.
How did we ever reach the point where this Court, sitting en banc, must debate whether a carjacking in which an assailant struck a 13-year-old girl in the mouth with a baseball bat and a cohort fired an AK-47 at her family is a crime of violence? It's nuts. And Congress needs to act to end this ongoing judicial charade.
I join the majority opinion in full, but I write separately to explain why our resolution of this appeal forecasts how Congress should address the vexing issue of how to punish violent recidivists under laws like the Armed Career Criminal Act 1 : by restoring the traditional role of the jury. The caselaw about how to punish recidivists has confounded the federal courts for decades and has made the resolution of this appeal tricky, but our decision also suggests a way out of the mess. Although our decision involves a contemporaneous crime and not a prior conviction, our conclusion that a jury may make findings about a defendant's violent conduct applies with equal force to recidivist statutes. Indeed, the modern abandonment of the jury's traditional role of making findings about prior convictions has created more problems than it has solved.
A. Recidivist Wars
Empirical research proves that Congress has good reason to punish recidivists with long sentences of imprisonment. A recent study by the United States Sentencing Commission found that "[c]areer offenders, as a group, tend to recidivate at a higher rate than non-career offenders." 2 More specifically, "almost two-thirds ... of career offenders released between 2004 and 2006 were rearrested" in the eight-year period after their release, while just under "one-half ... of non-career offenders released in 2005 were rearrested" in the same period. 3 And a defendant's criminal history as calculated under the Sentencing Guidelines is a strong predictor of future encounters with the justice system. 4 Offenders without any criminal history points are rearrested at a rate of 30.2 percent. 5 This rate jumps to 63.3 percent for offenders with five criminal history points and catapults to 81.5 percent for offenders with more than 10 criminal history points. 6 Relatedly, offenders with the lowest criminal history category are rearrested at a rate of 33.8 percent, while offenders with the highest criminal history category are rearrested at a rate of 80.1 percent. 7
Among career offenders, violent offenders, not surprisingly, pose the greatest risk to the public. For example, "drug trafficking only" career offenders recidivate at a rate of 54.4 percent, while "violent [crime] only" career offenders recidivate at a rate of 69 percent. 8 The median drug trafficker recidivates after 26 months, while the median violent offender recidivates after only 14 months. 9 The median drug trafficker commits two "[r]ecidivism [e]vents," while the median violent offender commits three. 10 And when a drug trafficker reoffends, he is most likely to commit another drug trafficking offense, while a violent offender is most likely to commit robbery. 11 Indeed, even "mixed" career offenders who have at least one violent offense 12 recidivate at a rate of 69.4 percent and are most likely to commit assault when they recidivate. 13
Past offenses involving a firearm are also a strong predictor of future crimes. 14 For example, "[o]ffenders whose federal offense involved firearms [are] most likely to be rearrested" at a rate of 68.3 percent, and "[o]ffenders who received an enhanced sentence for a weapon ... ha[ve] higher recidivism rates than other offenders." 15 In short, criminals with an affinity for guns and violence are the least likely to change their ways. 16
That recidivists merit longer sentences is hardly a new discovery. Over a century ago, the Supreme Court explained that "[t]he propriety of inflicting severer punishment upon old offenders has long been recognized in this country and in England." 17 Accordingly, "[s]tatutes providing for such increased punishment were enacted in Virginia and New York as early as 1796, and in Massachusetts in 1804; and there have been numerous acts of similar import in many states." 18
In more recent years, Congress has moved to protect public safety by enacting federal crimes that provide lengthy terms of imprisonment for recidivists. 19 The Armed Career Criminal Act, for example, provides a 15-year mandatory minimum sentence for a criminal convicted of unlawfully possessing a firearm or ammunition who has "three previous convictions ... for a violent felony or serious drug offense." 20 The Act defines a "serious drug offense" in terms of convictions under certain federal and state laws that provide a maximum sentence of 10 or more years of imprisonment. 21 And it defines a "violent felony" to include crimes that (1) have "the use, attempted use, or threatened use of physical force" as an "element" 22 -the so-called "elements clause"; (2) are "burglary, arson, or extortion, [or] involve[ ] use of explosives" 23 -the "enumerated offenses clause"; or (3) "otherwise ... present[ ] a serious potential risk of physical injury to another" 24 -the "residual clause."
B. The Residual Clause Strikes Back
As thoroughly chronicled in the majority opinion, years of litigation about federal recidivist statutes have weakened the penalties created by Congress. But these developments have not benefited all offenders.
Recidivist drug traffickers who possess a firearm are still subject to the 15-year mandatory minimum under the Armed Career Criminal Act. But after the demise of the residual clause in Johnson v. United States , 25 violent recidivists who possess a firearm-the ones akin to the violent career offenders who recidivate at a rate nearly 15 percentage points higher than recidivist drug traffickers and who tend to commit violent crimes when they do so-sometimes escape the mandatory minimum if their earlier offenses lacked a legal "element" that involves physical force, regardless of how the offender actually committed the offense. For example, an offender may have been convicted of "sexual abuse in the first degree ... by forcible compulsion" under Alabama law for a crime that was actually violent. 26 But because the Supreme Court of Alabama has adopted a "water[ed] ... down" interpretation of the statute that "means that [the statute] does not categorically include as an element the use, attempted use, or threatened use of physical force," the conviction will not count as a crime of violence because "the true facts matter little, if at all, in this odd area of the law." 27
The same problem may exist for other offenses that can technically be committed in nonviolent ways-but rarely, if ever, are-such as kidnapping, arson, and other sex crimes. Criminals who have committed violent crimes may escape the mandatory minimum sentence of the Armed Career Criminal Act because sentencing judges must "close [their] eyes" to everything but the legal definitions of prior convictions. 28 In essence, the so-called categorical approach "divorces what a habitual offender actually did from the punishment they are meant to receive." 29 "The bizarre results" occasioned by this approach "are hard to grasp" because "the doctrine is not based in reality, but rather relies on the legal fiction that crimes are [merely] comprised of a set of elements, as opposed to the underlying criminal conduct." 30
I do not mean to suggest that the residual clauses of the Armed Career Criminal Act or of the federal definition of a crime of violence in recidivist statutes 31 should have survived-at least not in their original forms that required the sentencing judge to decide whether the offender's criminal history qualified him for an increased punishment. Judges have rightfully complained that the categorical approach has taxed judicial economy. "The dockets of ... all federal courts are now clogged with [ACCA] cases," 32 and perhaps "no other area of law has demanded more of [the courts'] resources." 33 And as the Supreme Court explained in Johnson , the two-step process demanded by the categorical approach, in which the sentencing judge imagined the "ordinary case" of a crime and then decided "whether that abstraction present[ed] a serious potential risk of physical injury," was vague and confusing. 34 The residual clause produced several circuit splits over whether certain crimes were sufficiently violent. 35 Indeed, the justices could not agree whether fleeing in a vehicle from law enforcement or drunk driving qualified as violent crimes, 36 eventually leading the Supreme Court to conclude that "trying to derive meaning from the residual clause ... [was] a failed enterprise." 37 And even the elements clause has created confusion, with members of this Court disagreeing about whether crimes like attempted murder, attempted armed robbery, robbery, aggravated assault, and felony battery are violent crimes. 38
The problems with the categorical approach also cannot necessarily be remedied by having the sentencing judge make findings about the underlying facts of prior convictions. The Sixth Amendment requires that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury." 39 And the specific details of a recidivist's past crimes go beyond the simple "fact of [his] prior conviction." 40 Indeed, some members of the Supreme Court have opined that, under the Sixth Amendment, even the bare fact of a prior conviction should be proved to a jury. 41
C. Return of the Jury
The combination of the need to punish violent recidivists and the problem of judicial factfinding about prior convictions yields an obvious solution for Congress: rewrite the Armed Career Criminal Act and other recidivist statutes to require that the government must prove to a jury beyond a reasonable doubt that the defendant has previously been convicted of a felony the actual commission of which involved the use, attempted use, or threatened use of physical force against another person. For example, in the case of a defendant with a prior conviction under Alabama law for first-degree sexual abuse by forcible compulsion, the prosecution could introduce evidence that the defendant in fact used violent force to subdue his victim. This evidence might include certified charging documents, stipulations, plea agreements, factual proffers, and verdict forms from the past prosecution, as well as traditional evidence such as witness testimony and physical evidence.
Tasking the jury with determining recidivism is consistent with the common law. "Habitual offender laws like the ACCA enjoy a long tradition in this country that dates back to colonial times." 42 And"[a]t common law, the fact of prior convictions had to be charged in the same indictment charging the underlying crime ... and submitted to the jury for determination along with that crime." 43 In 1967, the Supreme Court acknowledged that "[t]he common-law procedure for applying recidivist statutes ..., which requires allegations and proof of past convictions in the current trial, is, of course, the simplest and best known procedure." 44 And earlier decisions of state courts left little doubt that "a verdict of the jury finding the prior conviction ... [was] essential to the power of the court to impose the increased punishment" absent a statute that displaced the common law. 45
"[T]he right to have a jury decide prior-offense status ... was the law in virtually every federal and state jurisdiction, from the Founding past World War II." 46 For example, a former Texas recidivism statute provided enhanced penalties when the prosecutor proved to the jury that the offender "ha[d] been before convicted of the same [felony] offense ... or one of the same nature." 47 And a jury finding was more than a formality. Under a former Indiana statute, "the previous convictions, sentences, and imprisonments [had to] be described specifically, and the jury [had to] find that the defendant was convicted, sentenced, and imprisoned in the instances described, and not otherwise." 48 Indeed, in Kelley v. State , 49 the Supreme Court of Indiana held that the prosecution could not rely on "a certified transcript of a judgment ... [that did] not describe the crime for which [the defendant] was convicted, but merely recite[d]" that the defendant was sentenced to between one and seven years of imprisonment. 50
The common-law method for proving prior convictions ordinarily permitted the prosecutor to rely on a broad array of evidence if the defendant refused "to stipulate as to the prior conviction[ ] and thereby relieve the State of the necessity of ... adducing proof before the jury of such prior convictions." 51 For example, in Crocker v. State , 52 after a defendant accused of "robbery with a prior conviction for robbery" contested the fact of his first conviction, the prosecutor introduced "records from the penitentiary," "testimony of one of the officers involved in the prior case," and a "comparison of finger prints of the [defendant] with the finger prints taken in connection with the prior offense." 53 And in Dozier v. State , 54 the jury was tasked with weighing "certified copies of the judgment and sentence," "records of the Texas Department of Correction, including fingerprints," and "expert testimony identifying [the fingerprints] as identical with those of the [defendant]." 55 Factfinding by juries was considered essential to recidivism statutes.
And still today, there are states that require factfinding by juries to sentence an offender under their own recidivist statutes. Under Indiana's current habitual offender statute, 56 "habitual offender proceedings are treated as substantive criminal trials. The State must prove the allegations beyond a reasonable doubt" to a jury. 57 The test for determining whether a prior conviction from another jurisdiction qualifies as a predicate offense under Indiana's statute does not turn on the elements of the offense, but on whether the acts that resulted in the out-of-state conviction would have constituted a predicate offense "if they had been committed in Indiana." 58
California also uses a conduct-based approach in cases in which it is not possible to determine whether an offense committed in another jurisdiction would qualify as a predicate felony through an inspection of the elements of the offense alone. 59 Although California law permits judges to make the factual findings required to determine that the conduct that resulted in an out-of-state conviction would have been a predicate offense if committed in the state, a California court "may not rely on its own independent review of record evidence to determine what conduct 'realistically' led to the defendant's conviction," but must instead rely on "those facts that were already necessarily found by a prior jury in rendering a guilty verdict or admitted by the defendant in entering a guilty plea." 60
Within our own Circuit, Alabama 61 and Georgia 62 likewise require the state to prove that the conduct underlying an offender's prior out-of-state conviction would have been a predicate offense under the state's recidivist statute if committed in the state, although both Alabama 63 and Georgia 64 permit judges to make the requisite factual findings. So in advocating a return to the jury's traditional role in determining recidivism at the federal level, I am not advancing a proposal untested by contemporary experience. I am instead proposing a solution that has proved workable in practice in several states.
Some may object that jurors' knowledge of past convictions will lead them to engage in propensity reasoning, 65 but the Supreme Court long ago held that the "use of prior convictions in [a] ... criminal trial ... [is not] so egregiously unfair upon the issue of guilt or innocence as to offend" the guarantee of due process of law. 66 In any event, the details of past convictions are unlikely to reach the jury. 67 To begin, about 97 percent of federal prosecutions end in guilty pleas. 68 And those few defendants who go to trial can stipulate to their past convictions and limit any proceedings to the charged offenses. 69
The supposed unfairness to defendants of admitting proof of prior convictions is the same concern that motivated the failed experiment of allowing judges to assess recidivism. When the Supreme Court decided Spencer v. Texas 70 in 1967 and upheld the common-law jury method against a challenge under the Fourteenth Amendment, 71 the majority opined that it "might well agree" that other methods of assessing recidivism, such as "leaving that question to the court," would be "faire[r]" than placing a defendant's criminal history before the jury. 72 Justice Stewart also wrote in his concurring opinion that, "[i]f the Constitution gave [him] a roving commission to impose upon the criminal courts of [the states his] own notions of enlightened policy, [he] would not join the [majority] opinion" because other "recidivist procedures ... are far superior to those utilized [under the common law]." 73 And then-contemporary academic commentators critiqued the common-law method and identified alternatives, including "determination of [recidivist] status by the judge." 74 But here we are. The cure of judicial factfinding has proved worse than the disease it was supposed to treat.
Another objection might be that compiling evidence of prior convictions will be burdensome. But with the advent of electronic records and other advantages of modern technology, the task of reconstructing the details of prior convictions will today be far easier than it was under the original common-law procedure and, over time, will become easier still. 75 Because most state and federal prosecutions end in guilty pleas, the relevant details of prior convictions ordinarily will be preserved in factual proffers and other plea records. 76 And in the light of the rapid rate at which many violent offenders recidivate, other relevant evidence likely will be fresh. 77
In any event, Congress has some options for ensuring that all violent recidivists remain subject to the mandatory minimum penalty. As explained above, the elements clause may fail to capture offenders who commit broadly defined crimes in violent ways. But the facts of their prior crimes, when ascertainable, should not be immune from consideration when they commit new crimes.
That this country comprises 50 states with different criminal codes all but ensures that a formalist approach to defining a crime of violence-administered only by judges-will be either over- or underinclusive and almost certainly will be vulnerable to persistent litigation like that which felled the residual clause. For example, a recent bill introduced in the United States Senate proposes to apply the mandatory minimum to defendants with "[three] or more previous serious felony convictions," namely "any conviction ... for an offense ... punishable by imprisonment for a statutory maximum term of not less than 10 years." 78 But this definition is both too narrow and too broad. It would exclude the offense of "felony battery" under Florida law, 79 a third-degree felony with a maximum term of imprisonment of five years, 80 even though this crime requires the infliction of "great bodily harm, permanent disability, or permanent disfigurement." 81 It also would exclude convictions for "domestic battery by strangulation" under Florida law 82 and for "assault[ing] another and inflict[ing] substantial bodily harm" under Minnesota law. 83 But it would include the Florida offense of "[u]nlawful possession or use of a fifth wheel," 84 a second-degree felony with a maximum term of imprisonment of 15 years. 85 It would include a conviction under Utah law for "the intentional sale of five or more unlawful telecommunication devices within a six-month period," 86 also a second-degree felony with a maximum term of imprisonment of 15 years. 87 And it would include the Massachusetts offense of knowing possession of "ten or more pieces of false money ... with intent to utter or pass the same as true," a crime punishable by a life sentence. 88 In the light of the substantial recidivism differences between violent and nonviolent offenders, Congress should ensure that their punishments are based on the nature of their past convictions and not the potential sentences for those convictions.
Make no mistake-Congress must eventually do something. The need to punish violent recidivists is just as strong today as it was when the Supreme Court decided Spencer over 50 years ago. 89 The only question is what Congress should do. Restoring the common-law role of the jury is the right place to start.
As United States Circuit Judges, we have been given great power and privilege. And our positions call upon us to decide the fate of many people who have neither. In a nation that incarcerates a larger percentage of its population than almost all others, federal judges devote much time to examining (and reexamining) the sentences imposed on people serving time in our federal and state prisons. The interpretation the majority of this en banc Court gives to the sentencing statute at issue here, which gives no relief for Irma Ovalles, presents the opportunity to review the development of this Circuit's sentencing jurisprudence in recent years. My review reveals a body of law that has relentlessly limited the ability of the incarcerated to have their sentences reviewed. Decisions of this Court have left only a narrow path to relief for those serving sentences longer than the law now allows. Yet this narrow path is not mandated by decisions of the Supreme Court or by Acts of Congress. Indeed, this Court has withheld relief from prisoners even when precedent counsels otherwise.
As did my colleagues in the majority, I begin with the landmark Supreme Court decision in
Johnson v. United States
, 576 U.S. ----,
Yet at every turn, this Court erred in ways that stopped prisoners from getting their sentences reviewed and prevented people who had meritorious claims from getting relief. Ms. Ovalles's case is a "successor" to Johnson , Maj. Op. at 1233, and it is the latest in this line of decisions. Judge Jill Pryor's dissent shows how the majority strays from the plain text of the statute and from Supreme Court precedent. I fully join her opinion. I write separately to provide the context of the Eleventh Circuit's response to Johnson . This is not the first time this Court has mistakenly applied Johnson , nor the first time our mistake will leave an unlawful sentence intact. Indeed, today's en banc decision, like others before it, promises to have lasting effects for many prisoners.
I. JOHNSON AFTERMATH
When the Supreme Court invalidates a statute that was the basis for sentences being served by thousands of federal prisoners, the first question becomes, who benefits? Do we simply quit relying on this unconstitutional statute for those who will be sentenced in the future, or do we go back and give relief to those who were sentenced under the flawed statute in the past? There are rules governing who gets relief.
See generally
Teague v. Lane
,
One statutory tool for a person seeking relief from an unlawful federal prison sentence is found in
As one would expect, after the Supreme Court decided
Johnson
, thousands of prisoners tried to get permission from our Court (and others) to challenge their sentences. This is understandable because many of them had been sentenced under a statute they now knew was, in part, unconstitutional. To the best of my knowledge, our Court applied
Johnson
to give relief to inmates exercising their direct appeal rights, and to those who were within the one-year time limit for bringing their first collateral attack.
E.g.
,
Mays v. United States
,
However, prisoners who were already more than a year into serving sentences impacted by
Johnson
have had a hard time getting their cases considered in the Eleventh Circuit. Shortly after
Johnson
was decided, this Circuit declined to allow the Supreme Court's new rule in
Johnson
to serve as the basis for a second or successive motion under § 2255.
In re Franks
,
As I discussed in my dissent in
Franks
, the Supreme Court's decisions in
Schriro v. Summerlin
,
In
Rivero
, this Circuit held that no cases dictated
Johnson
's retroactivity in part because "
Johnson
did not hold that Congress
could not
impose a punishment for the same prior conviction in a statute with less vague language."
Turns out we were wrong. Just shy of a year after
Johnson
issued, the Supreme Court decided
Welch v. United States
, 578 U.S. ----,
Fortunately, the Supreme Court was quick to correct this Court's erroneous decision on retroactivity-
Welch
issued just over eight months after
Rivero
and three months after
Franks
. But in the meantime our Court had turned away dozens of prisoners seeking authorization to file second or successive § 2255 motions based on
Johnson
.
See
In re Robinson
,
Thus, in a compressed timeframe, the Court began reviewing thousands of applications from inmates seeking to file a second or successive § 2255 petition based on
Johnson
's retroactivity. The statute requires these applications to make a "prima facie" showing that they are entitled to relief.
II. INSTITUTING MERITS REVIEW OF APPLICATIONS SEEKING AUTHORIZATION TO FILE SECOND OR SUCCESSIVE § 2255 MOTIONS RAISING JOHNSON CLAIMS
Again, when prisoners apply to circuit courts for authorization to file a second or successive habeas motion, the governing statute limits our review of the application to determining only whether the prisoner has made a "prima facie showing" that his proposed motion "contain[s] ... a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable."
Up until the rush of
Johnson
filings, this Court only reviewed filings from prisoners asking for permission to bring a second or successive petition to see whether the prisoner had made a prima facie case. We did this because, again, this is the task the statute assigns us.
See, e.g.
,
In re Moss
,
Before the rush of Johnson filings, we also recognized the practical challenges of conducting a merits review by looking only at the filings asking for permission to bring the action:
When we make that prima facie decision we do so based only on the petitioner's submission. We do not hear from the government. We usually do not have access to the whole record. And we often do not have the time necessary to decide anything beyond the prima facie question because we must comply with the statutory deadline. See § 2244(b)(3)(D) (requiring a decision within 30 days after the motion is filed).
Jordan
,
Yet after
Johnson
, this Court began doing exactly what we had previously explained the constraints on our
prima facie
review would not permit: deciding the merits of a prisoner's
Johnson
claim.
See, e.g.
,
In re Thomas
,
The questions that come up about sentences after
Johnson
are complicated. Every ACCA sentence is based on the individual criminal history of the people serving them. Under ACCA, a prisoner who had in the past committed three or more crimes that qualified as either a "serious drug crime" or a "violent felony" got a sentence that had to be at least fifteen years long.
In so doing, this Court effectively reimposed sentences on these inmates here at the court of appeals level, without ever allowing more thorough District Court review. We turned away prisoners seeking District Court review by ruling that their criminal history that had qualified for a fifteen-year plus sentence still qualified them for the longer sentence under a part of ACCA that survived
Johnson
.
See, e.g.
,
In re Hires
,
As it turned out, the language the Supreme Court invalidated in
Johnson
also appeared in other federal sentencing statutes, so our Court began to get filings from prisoners sentenced under those statutes as well. For example, prisoners like Ms. Ovalles also sought to challenge sentences imposed under
Also as a result of
Johnson
's holding that the language of ACCA was unconstitutional, it should have surprised no one
that our Court would begin to see challenges to sentences imposed under identical language in the U.S. Sentencing Guidelines. USSG § 4B1.2(a). Yet here again, where prisoners sought to challenge their sentences under this guideline, our Court denied them the chance to present their claims in District Court. In a direct appeal from a sentencing, with full adversarial testing, this Court said
Johnson
did not apply because the sentences were imposed under a Guideline system that was advisory.
United States v. Matchett
,
During this time, many panels, including some I served on, chose to publish our rulings on these applications.
See, e.g.
,
In re Smith
,
In a short time span, our Court got thousands of authorization applications raising Johnson claims. But once any panel published a decision holding an inmate's past conviction still counts as a predicate conviction under the ACCA, it became easier to dispose of new filings. A panel receiving a new application to file a second or successive petition could quickly cite to a published decision rejecting someone else's application based on its declaration that the two had identical predicate convictions that had been ruled a "violent felony" even after Johnson . Unfortunately, several of these published merits decisions were just plain wrong. That means not only did the mistaken decision deny relief for the inmate who brought the case, but it will continue to require denial of relief for others who would rightly be entitled to it.
III. EXAMPLES OF INCORRECT MERITS DECISIONS ON SECOND OR SUCCESSIVE APPLICATIONS
In the rush to conduct these merits reviews of applications to file a second or successive habeas petition within the 30-day statutory time frame, based only on a form filed by a usually uncounseled prisoner, it should come as no surprise that our Court made some mistaken rulings. I think it worthwhile to discuss three examples of such mistakes in more detail here, to aid in understanding the impact of this Court's chosen method for responding to prisoners seeking relief after Johnson . Unless we overrule them en banc or the Supreme Court corrects our errors, the merits decisions we made under the constraints I have discussed will continue to bar relief for prisoners with meritorious claims.
A. Florida Robbery and Aggravated Assault
In
In re Hires
, a panel denied Mr. Hires authorization to file a second or successive habeas motion based on an earlier conviction imposed on him in Florida.
To be clear,
Turner
was also wrongly decided. In
United States v. Golden
,
As for Florida armed robbery, in
Dowd
, this Court summarily stated in one sentence that Florida armed robbery "is undeniably" a violent felony and cited to ACCA's elements clause.
B. Johnson 's Applicability to the Mandatory Guidelines
As I've mentioned, the United States Sentencing Guidelines contained language identical to what the Supreme Court ruled unconstitutionally vague in the ACCA statute. This Court upheld guideline sentences imposed in reliance on this language under the advisory guideline regime.
Matchett
,
The
Griffin
panel also said, "Due process does not mandate notice of where, within the statutory range, the guidelines sentence will fall." 823 F.3d at 1354. But this too is wrong. In
Beckles v. United States
, 580 U.S. ----,
This Court alternatively held in
Griffin
that
Welch
did not make
Johnson
retroactive on all collateral challenges. The
Griffin
panel said
Johnson
was retroactive only where it applied to result in "a substantive change of law [by] alter[ing] the statutory range of permissible sentences."
Griffin
,
Welch
explained that a new rule "has a procedural function" if it "alters only the procedures used to obtain the conviction."
Even with these flaws in Griffin , it is binding precedent in our Circuit, and we are required to deny leave to file a second or successive petition to any prisoner seeking relief from a sentence imposed under the mandatory guideline system.
C. Florida Manslaughter
My third example of a merits decision that missed the mark came in
In reBurgest
,
But
Burgest
's reasoning ignored Eleventh Circuit precedent that requires us to apply the categorical approach when deciding whether a prior conviction is a qualifying offense for sentencing enhancement purposes.
See
Lockley
, 632 F.3d at 1241-42 (noting "robbery" is enumerated as a "crime of violence" in the Guideline commentary to § 4B1.2 and stating "[w]here, as here, the Guidelines specifically designate a certain offense as a 'crime of violence,' we compare the elements of the crime of conviction to the generic form of the offense as defined by the States, learned treatises, and the Model Penal Code"). When it failed to use the categorical approach, the panel merely relied on the label Florida uses. This practice was explicitly rejected by this Court in
Palomino Garcia
.
See
Where other circuits used the categorical approach, they found that Florida's manslaughter statute encompasses more acts than those captured in the generic definition.
See
United States v. Mendoza-Padilla
,
Hires
,
Griffin
, and
Burgest
are examples of how this Court's approach to second or successive applications has harmed prisoners serving long sentences imposed under ACCA or the Sentencing Guidelines. The Court's approach in these cases disregarded our own precedent and rules in search of a quick end to the flood of applications filed by prisoners raising
Johnson
claims. How did this happen? For one thing, I believe the Court tried to get to the merits of these cases too fast. The statute for reviewing these applications sets a 30-day limit for ruling on them.
Our nation has experienced an explosion in its prison population over the last twenty years or so. 5 The Supreme Court's decision in Johnson required federal judges to take a close look at the sentences of thousands of people incarcerated in federal prison. For many inmates, we did not. In our haste, this Court made mistakes (myself included) that always seemed to work against the prisoner. Yet this Court has not just failed to correct its mistakes. It has also acted to set these incorrect decisions in stone.
IV. BARRING MULTIPLE APPLICATIONS TO FILE § 2255 MOTIONS
During the two or so months after the Supreme Court decided Welch , some prisoners were savvy enough to apply to seek relief more than once. This Court then undertook to put an end to this practice, and in doing so, adopted an interpretation of AEDPA that is far removed from the text of the statute. And beyond our Court's departure from what the statute requires, it also overlooked Supreme Court precedent counseling a path quite different from what this Court chose.
Until recently, federal prisoners at least had the comfort of knowing that when they were denied leave to file second or successive habeas motions, that denial was without prejudice and "there [was] no rule against filing multiple applications for leave to file a successive § 2255 petition."
See
In re Anderson
,
In order to reach this result, the
Baptiste
panel first determined § 2244(b)(1) applies to § 2255 motions, even though § 2244(b)(1) only expressly refers to petitions for habeas corpus relief filed by state prisoners under
Two of my colleagues have explained at length the problems with
Baptiste
, and I will not revisit them all here.
See
In re Jones
,
The Supreme Court also explained in
Magwood
that § 2254's "requirement of custody
pursuant to a state-court judgment
distinguishes § 2254 from other statutory provisions authorizing relief from constitutional violations-such as § 2255, which allows challenges to the judgments of federal courts."
Nonetheless, the judges of this Court are bound to apply
Baptiste
. The harm it does is not hard to see. For example, I will return briefly to Mr. Hires's case.
Inre Hires
,
In this way, Baptiste requires a prisoner to bear all consequences of any mistake this Court makes in his case. It would be one thing if this were what AEDPA required of us. But it is not. Baptiste itself was wrongly decided.
To the extent that
Baptiste
was issued as a work-load management tool for the courts, it is not necessary. As discussed, AEDPA already allows a very narrow path for courts to revisit decisions on authorization applications.
See
V. A FINAL ROADBLOCK TO RELIEF
I end with the Court's recent refusal to reconsider
United States v. Beeman
,
Of course, before
Johnson
District Courts did not say at sentencing which ACCA clause they relied on because nothing in the law required them to.
See
Beeman
,
Beeman
said its historical-fact test was necessary to preserve the "burden of proof."
For those rare prisoners who somehow made it past this Court's review of their authorization applications and through the District Court's front doors, they will face one last, likely fatal, roadblock. District Courts will now decide whether prisoners should get the benefit of
Johnson
without being able to consider developments in that law intended to help them evaluate who qualifies as a violent repeat offender. In the end, of the thousands of inmates who filed authorization applications raising potentially meritorious
Johnson
claims, very few will ever get a full review of the merits of their claims and even fewer will get relief.
See
Williams
,
VI. TODAY'S DECISION IN CONTEXT
As this review shows, our Court has made many missteps after Johnson . It all began, in my view, when we started conducting merits review of prisoners' cases when all they wanted was permission to file a second or successive § 2255 motion in District Court. We compounded that error when we started publishing those decisions, establishing them as precedent. Then we locked in our mistakes by adopting an interpretation of § 2255, not in keeping with the text of the statute, to prevent prisoners from filing more than one application to file a second or successive petition, even where we wrongly denied their first. And then we denied those prisoners who managed to get full District Court review of their sentences the ability to use current Supreme Court precedent to show they had been sentenced under the ACCA residual clause. At every turn, our rulings put obstacles in the paths of prisoners trying to have their sentences reviewed. These roadblocks mean some prisoners in our Circuit will serve unconstitutional sentences.
Today's majority en banc opinion decides that the Supreme Court's decisions in Johnson and Dimaya did not invalidate § 924(c)'s residual clause. Again, I fully join Judge Jill Pryor's dissent explaining why this is wrong. I note with regret that today's decision is but a piece of the precedent I reviewed here. This Court has mishandled the application of Johnson to many people who should have benefitted from it, and we do so again today.
My final observation about the majority's en banc ruling against Ms. Ovalles is to note that the majority opinion makes much of the fact that the government has asked us to abandon the categorical approach in interpreting § 924(c)(3)(B). See Maj. Op. at 1244-45. Judge Jill Pryor's dissent explains why this consideration should not factor into our analysis of the statute at issue. Jill Pryor Dissent at 1295-96. I would add that, when deciding whether Johnson was retroactive, we paid no heed to the government's concession that it was. See supra at 1253-54. If we are going to defer to the government's view, we should do so whether it advocates for or against relief for the prisoner.
I respectfully dissent from the majority opinion, particularly as it evidences this Court's failure to properly review and correct unlawful sentences in the wake of Johnson .
This case is about
Before I get to why I think the majority is wrong, let me point out where we agree. We courts are loath to strike down acts of Congress-and appropriately so. When a law passed by Congress may be read to have more than one plausible or "fairly possible" meaning, and one interpretation would cause the law to be upheld as constitutional while another would require it to be struck down, we are "obligated to construe the statute" so as to uphold it.
I.N.S. v. St. Cyr.
,
This case-with all its textual analysis, discussion of canons of statutory construction, and parsing of precedent-may come across like a purely academic exercise. In reality, it is anything but. People who are serving sentences of five years to life under § 924(c) will get no relief from this Court even though the Supreme Court held that an identically-worded statute was so vague that its enforcement violated the right to due process under law. For the reasons I explain in more detail below, I respectfully dissent. 1
Section 924(c) makes it a federal crime to use or carry a firearm "during and in relation to any crime of violence or drug trafficking crime" or to possess a firearm in furtherance of such a crime.
No one disputes that if we must use the categorical approach to interpret § 924(c)(3)(B), the statute is unconstitutional. See Maj. Op. at 1233. The majority argues that we should employ the canon of constitutional avoidance to save § 924(c)(3)(B) because the statute can plausibly be interpreted to incorporate a "conduct-based approach"-one that looks to the "real-world facts of the defendant's offense" instead of how the law defines the crime or what conduct is entailed in the ordinary case. Maj. Op. at 1233. The problem with the majority's approach is that its alternative way of reading § 924(c)(3)(B) to permit a conduct-based approach is simply not plausible when we remain faithful to the text of the statute.
So how does the majority get there? Sifting through Supreme Court cases applying the categorical approach to ACCA and § 16, the majority identifies six factors that led the Supreme Court to apply the categorical approach in those instances. It then applies those factors to § 924(c)(3)(B) and-finding many of them missing or inapplicable-determines that this statute plausibly could be read differently. But only three of the majority's factors concern the text. And the majority's analysis of its factors, both textual and extra-textual, is in my view deeply flawed. If we follow what the Supreme Court said about the text of the other two statutes and apply it to § 924(c) as a whole and in context, we find that § 924(c)(3)(B) presents an even stronger case for applying the categorical approach than the other statutes-so strong that no other reading is plausible.
I.
To understand why the approach the Supreme Court used in
Dimaya
,
Johnson
, and other precedent interpreting similarly-worded legislation controls the outcome of this case, some background on that precedent and the other legislation is unavoidable. In this section I first discuss three statutes, all of which Congress enacted or revised as part of an overhaul of the criminal code in the mid-1980s: the statute at issue here,
A. The Statutes
In the mid-1980s, Congress, as part of a movement to get tougher on crime, passed the Comprehensive Crime Control Act of 1984 (the "CCCA"), which overhauled the federal criminal code for the first time in over half a century. Pub. L. No. 98-473,
The statute at issue here,
For purposes of this subsection the term "crime of violence" means an offense that is a felony and-
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) 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.
Section 924(c) is one of several CCCA statutes to address crimes of violence. Another is
The term "crime of violence" means-
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and 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.
Since passage of the CCCA, § 16's general "crime of violence" definition "has ... been incorporated into a variety of statutory provisions, both criminal and noncriminal."
Leocal
, 543 U.S. at 7,
In fact, for the vast majority of instances where § 16's definition is incorporated into the criminal code, the "crime of violence" element is committed at the same time as the offense's other elements. For example,
Yet another (and for our purposes, the last) CCCA statute to address crimes of violence is ACCA. ACCA, enacted as part of the CCCA, imposes a mandatory 15-year term of imprisonment on a person convicted of being a felon in possession of a firearm who previously was convicted of three serious drug offenses, violent felonies, or both. ACCA defines "violent felony" like this:
[A]ny crime punishable by imprisonment for a term exceeding one year ... that-
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]
The balance of subsection (ii) is known as the "enumerated crimes clause."
Section 924(c), § 16, and ACCA, all either enacted or revised as part of one comprehensive piece of legislation, are notably similar in their text. All three statutes, until the majority's decision today, have been analyzed using the same "categorical approach." I discuss this approach in the next subsection.
B. The Categorical Approach that Has Governed All Three Statutes
When Congress passed the CCCA, in which it revised § 924(c) to include a "crime of violence" definition and enacted § 16 and ACCA, it did so with the expressed intention to capture certain crimes-not conduct-as crimes of violence.
See generally
Taylor
,
When in
Taylor
the Supreme Court first described the categorical approach, it did so in the context of ACCA's enumerated crimes clause. The Court based its holding-that a categorical, rather than a factual or conduct-based, approach must be used-primarily on ACCA's text as a whole, but also on ACCA's legislative history and because construing it with a conduct-based approach would lead to practical problems in criminal proceedings. The Court first explained that ACCA's text "generally supports" a categorical approach because it refers to "convictions," not commissions of an offense, and because its elements clause refers to a statute's "element[s]," not to any particular facts or conduct.
After
Taylor
, the Supreme Court held that the categorical approach must be applied to ACCA's elements and residual clauses as well.
See
Curtis Johnson v. United States
,
In contrast to its multi-factored reasoning in
Taylor
, when the Supreme Court first construed § 16, it applied the categorical approach based
solely
on the text of the statute, without reference to legislative history or practical concerns. And it said this construction was not merely optimal, but required. Specifically, in
Leocal
, a unanimous Supreme Court explained that "[i]n determining whether the petitioner's conviction falls within the ambit of § 16, the statute directs our focus to the 'offense' of conviction."
Leocal
, 543 U.S. at 7,
When it came to construing § 924(c)(3), in
United States v. McGuire
this Court used the same textual analysis to explain why the categorical approach must be used.
We employ this categorical approach because of the statute's terms: It asks whether [the defendant] committed "an offense" that "has as an element the use, attempted use, or threatened use of physical force against the person or property of another," or that " by its nature , involves a substantial risk that physical force against the person or property of another may be used."
until today, and we have been in good company doing so. All but two circuits apply the categorical approach to § 924(c). 6
C. Johnson , Dimaya , and the Role of the Canon of Constitutional Avoidance
The majority agrees that if the categorical approach must be used, then based on Dimaya § 924(c)'s residual clause is unconstitutionally vague. The question is whether the Supreme Court's decisions-spanning from 1990 to 2018-that the categorical approach must be applied to language like § 924(c)'s can be side-stepped due to the canon of constitutional avoidance. In this section I discuss the Supreme Court's reasoning in these decisions. I also discuss the evolution of the canon of constitutional avoidance in this setting and how a minority of the Justices have advocated unsuccessfully for its use to save ACCA's and § 16(b)'s residual clauses.
After wrestling with ACCA's residual clause on several occasions, the Supreme Court in
Johnson
struck it as void for vagueness.
Justice Alito dissented in
Johnson
. He argued that the Court should have employed the canon of constitutional avoidance to save ACCA's residual clause by adopting a conduct-based approach like the majority adopts here.
When
Johnson
was decided, though, it was an open question whether extra-textual factors-such as the government's concessions and practical considerations-could play a role in the decision whether to invoke the canon of constitutional avoidance to save a statute. In
Zadvydas v. Davis
, the Supreme Court construed an INA statute providing that a noncitizen under an order of removal whom the government has not removed within the 90-day statutory removal period " 'may be detained beyond the removal period.' "
This year, however, the Supreme Court put any lack of clarity in Zadvydas to rest. In Rodriguez , the Court clarified that "[t]he canon of constitutional avoidance comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction. In the absence of more than one plausible construction, the canon simply has no application." Rodriguez , 138 S.Ct. at 842 (emphasis added) (internal quotation marks and citation omitted). The Court characterized its prior holding in Zadvydas as "a notably generous application of the constitutional-avoidance canon." Id. at 843. In Zadvydas , the Rodriguez majority explained, the Court had "detected ambiguity" in the statute's use of "may be detained" and only then looked to extra-textual considerations to determine a limitation on the length of detention that would avoid a potential due process problem. Id. at 834. After Rodriguez , there can be no doubt that the only consideration relevant to the constitutional avoidance question is the text. Only if the text is ambiguous can the canon of constitutional avoidance be employed. And only if the canon of constitutional avoidance is employed can we examine extra-textual considerations.
Later in the term, the Supreme Court struck § 16's residual clause as unconstitutionally vague. See Dimaya , 138 S.Ct. at 1216 (majority opinion). 7 The Court reasoned that § 16(b), like ACCA's residual clause, first "calls for a court to identify a crime's 'ordinary case' in order to measure the crime's risk." Id. at 1215. And "[n]othing in § 16(b) helps courts to perform that task, just as nothing in ACCA did." Id. Second, § 16(b) creates "uncertainty about the level of risk that makes a crime 'violent.' " Id. Section 16(b)'s "substantial risk" standard, the Supreme Court explained, is no more determinate than ACCA's "serious potential risk" standard. Id. Combined, the categorical approach and uncertain risk standard rendered § 16(b) more unpredictable and more arbitrary than due process can tolerate. Id. at 1215-16.
Again, as in
Johnson
, a dissent argued that the Court should have employed the canon of constitutional avoidance to save the residual clause.
Id.
at 1254-59 (Thomas, J., dissenting). Justice Thomas, joined by Justices Kennedy and Alito, announced that "[t]he text of § 16(b) does not require a categorical approach,"
id.
at 1254, despite
Leocal
's holding that the text of § 16(b)"requires" a categorical approach.
Leocal
, 543 U.S. at 7,
II.
Section 924(c)'s residual clause is void for vagueness for precisely the same reasons that its twin, § 16(b), is void for vagueness. First, the categorical approach-which the Supreme Court said must be applied to text identical to § 924(c)(3)(B) -requires courts to imagine the ordinary case of an offense. And "[n]othing [in the statute] helps courts to perform that task."
Dimaya
, 138 S.Ct. at 1215 (majority opinion). Second, the "substantial risk" standard in § 924(c)(3)(B) is indeterminate at best, creating "uncertainty about the level of risk that makes a crime 'violent.' "
Id.
Combined, these two features of § 924(c)(3)(B) create " 'more unpredictability and arbitrariness than the Due Process Clause tolerates.' "
Id.
at 1216 (quoting
Johnson
,
The majority, in an attempt to salvage § 924(c)'s residual clause, tosses out the categorical approach in the name of constitutional avoidance. The majority acknowledges that the categorical approach must be applied to the definitions of drug trafficking crime and of crime of violence in § 924(c)(3)'s elements clause, but holds that a conduct-based approach at least plausibly applies to the definition of crime of violence in § 924(c)(3)'s residual clause. In adopting a conduct-based approach to § 924(c)(3)(B) -and thus overruling in part our decision in McGuire -the majority contorts the plain text of the statute and reads similar structure and language differently within the same statute. The majority does so in disregard of the Supreme Court's unequivocal statement in Leocal that language identical to § 924(c)(3)(B) requires a categorical approach-that is, it cannot plausibly be read another way. And the majority does so in disregard of the Supreme Court's admonition that in deciding whether to employ the canon of constitutional avoidance we must look to a statute's text alone. The majority effectively rewrites the statute to avoid having to strike it down.
To reach this result, the majority distills from Taylor and its progeny a multi-factor test for deciding whether we should apply the categorical approach to § 924(c)(3)(B). Only three of the majority's six factors are text-based, and they appear seemingly on an even playing field with three other extra-textual "considerations." Maj. Op. at 1243-44. Even if these extra-textual considerations mattered before Rodriguez , they do not matter now. What we know now is that if a purely textual analysis leads to only "one plausible construction, the canon [of constitutional avoidance] simply has no application." Rodriguez , 138 S.Ct. at 842 (internal quotation marks omitted). Below I explain why the majority's textual analysis, contained in three of its six factors, is incorrect and clearly in contravention of Supreme Court precedent. I then explain why the majority's explanation of its other extra-textual factors-which cannot be relevant factors at all-is flawed as well.
A. The Text of Section 924(c) Permits Only One Reading: that the Categorical Approach Is Required.
The question we must ask in this case is whether the text of § 924(c)(3)(B) plausibly can be read to support a conduct-based approach rather than a categorical one. If not, the inquiry ends, and § 924(c)(3)(B) is unconstitutional. The answer is that it cannot. Section 924(c)'s text, read as a whole, in its statutory context, and with the Supreme Court's guidance, cannot plausibly be read to permit a conduct-based approach to the residual clause.
First of all, the Supreme Court has already told us that a categorical approach is the only approach we can take to this text. In
Leocal
, the Supreme Court unanimously explained that the text of § 16(b) -"identical" to the language in § 924(c)(3)(B), Maj. Op. at 1236, 1239-"
requires
us to look to ... the nature of the offense of conviction, rather than to the particular facts relating to [the] crime" because the text includes "offense" in conjunction with "by its nature."
Leocal
, 543 U.S. at 7,
The reasoning behind Leocal 's holding applies with at least equal force to § 924(c). To recap, § 924(c)'s "crime of violence" definition looks like this:
For purposes of this subsection the term "crime of violence" means an offense that is a felony and-
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) 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.
There is additional textual support for a categorical reading of § 924(c)(3)(B) beyond the "crime of violence" definition. The categorical approach also applies, without a doubt, to the other possible predicate offense, a "drug trafficking crime."
See
The text of § 924 as a whole further supports a categorical reading of § 924(c). Section 924 also contains ACCA, § 924(e). The statutes are unique in establishing mandatory minimum sentences for federal firearms offenses. See U.S. Sentencing Comm'n, Mandatory Minimum Penalties for Firearms Offenses in the Federal Criminal Justice System 2 (2018). The Supreme Court has, without exception, construed ACCA (including, when it was in effect, its residual clause) to require a categorical approach. Taking an even broader look at the statutory scheme, we know that § 924(c), ACCA, and § 16 all were created or amended as part of the same legislative action, the CCCA. The use of very similar residual clauses in these statutes is more evidence still that Congress intended the same categorical meaning for § 924(c)(3)(B). See Rodriguez , 138 S.Ct. at 845 (rejecting construction of an immigration statute that was "incompatible with the rest of the statute" and explaining that only one reading of the statute "makes sense in the context of the statutory scheme as a whole").
None of the majority's three text-based factors convinces me that § 924(c)(3)(B) plausibly can be read to support a conduct-based approach. Nor am I persuaded that we can divine the meaning of one clause of a statute by breaking it down word by word and isolating those words from their surrounding context. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts § 2, at 56 (2012) ("The words of a governing text are of paramount concern, and what they convey, in their context, is what the text means."). Indeed, by separating the text of § 924(c) into three "considerations" that are hardly separate ideas, the majority performs a sleight of hand that, the Supreme Court has told us on numerous occasions, has no place in textual analysis. See, e.g. , Rodriguez , 138 S.Ct. at 845 . Even picked apart, though, the words do not support majority's interpretation.
The majority's three textual considerations or factors are: "the text of [ACCA's] operative provisions focused not on conduct, but rather on 'convictions'-and thus ... solely on formal legal elements" (factor 2 of the majority's six-factor test); ACCA's and § 16's "definitional provisions used terms and phrases like 'offense,' 'felony,' and 'by its nature,' which ... pointed toward a categorical (rather than conduct-based) inquiry" (factor 3); and "those statutes lacked any reference to the underlying crime's commission or circumstances" (factor 4). Maj. Op. at 1244. I address them in turn.
1. The "Operative Provision" of Section 924(c) Does Not Permit a Conduct-Based Approach to the Residual Clause.
In its analysis of § 924(c)'s text, the majority first notes that what it deems
ACCA's
"operative provision"-"[a]ny person who violates [
I find the majority's argument unpersuasive for at least two reasons. First, setting aside for now comparisons to other statutes, the language in § 924(c)(1) that the majority insists "refer[s] exclusively to conduct," Maj. Op. at 1248, cannot bear the weight the majority places on it. Section 924(c)(1) makes it a federal crime to use, carry, or possess a firearm "during and in relation to" one of
three
categories of crimes: drug trafficking crimes, elements-clause crimes of violence, or residual-clause crimes of violence. If the "during and in relation to" language supported a conduct-based approach to the residual clause, it necessarily would do the same for the drug trafficking and elements-clause definitions. After all, the same words-"during and in relation to"-must be ascribed the same meaning for each category of crime listed in § 924(c), whether a drug trafficking crime, an elements-clause crime of violence, or a residual-clause crime of violence. "To give these same words"-["during and in relation to"]-"a different meaning for each category"-[the elements- and residual-clause definitions of crime of violence and the drug trafficking crime definition]-"would be to invent a statute rather than interpret one."
Clark v. Martinez
,
Second, and relatedly, by comparing § 924(c)(3)(B) to ACCA the majority is in some sense setting up a straw man, because ACCA is not the best analogue to § 924(c)(3) ; § 16 is. As the
Dimaya
plurality noted, § 16's text, even "more plainly" than ACCA's, requires a categorical approach.
Dimaya
, 138 S.Ct. at 1218 (plurality opinion);
see
id.
at 1235-36 (Roberts, C.J., dissenting) (reaffirming
Leocal
). So to compare and contrast ACCA's language with § 924(c)'s is a bit disingenuous when a more similar statute exists. The majority does not look to § 16(b) when examining this textual factor, perhaps because the majority confines all discussion of § 16(b) to its incorporation into the INA, where it, like ACCA's residual clause, defined a prior conviction. But § 16(b) in its numerous other applications functioned just as § 924(c)(3)(B) does, yet § 16(b)"require[d]" a categorical approach.
Leocal
, 543 U.S. at 7, 11 n.8,
A look at some examples of § 16's incorporation into the criminal code proves both points. By examining § 16's incorporation into the criminal code, we see how conduct-based elements and categorical elements exist side-by-side without the former allowing a conduct-based reading of the latter. And we see just how similar § 16(b)'s incorporations are to § 924(c)(3)(B)'s incorporation into § 924(c)'s "operative provision," and thus why § 16 is a better textual analogue for § 924(c)(3)(B) than ACCA is.
Let's take, for example,
2. The Phrases "Offense that Is a Felony" and "By its Nature" Require a Categorical Approach to Section 924(c)'s Residual Clause.
Next, the majority examines the words "offense," "felony," and "by its nature," concluding that although in some contexts they may signal a categorical reading, in this context they do not necessarily. I am unpersuaded.
The majority says that "offense" plausibly can be read to refer to the defendant's conduct, pointing to other contexts in which "offense" denotes conduct. In the case the majority relies primarily upon,
Nijhawan
, the Supreme Court recognized "the linguistic fact" that in ordinary speech words such as "offense" or "felony" can refer to a person's conduct rather than a statute of conviction.
an offense that-
(i) involves fraud or deceit in which the loss to the victim or victims exceeds § 10,000; or
(ii) is described in section 7201 of Title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000[.]
As I explained above, applying this same logic to § 924(c)(3) compels a categorical reading of the statute. Like subsection (a)(43)(M)'s "offense ... in which" language, the prefatory phrase "offense that is a felony" in § 924(c) is incorporated into the definitions for
both
the elements clause
and
the residual clause. If we start with the uncontroversial proposition that "offense that is a felony" is categorical in the elements clause and then apply the Supreme Court's reasoning in
Nijhawan
, we must conclude that Congress intended "offense that is a felony" to be categorical for both crime of violence definitions in § 924(c)(3).
See
Nijhawan
,
Aside from its reading of "offense," the majority appears to acknowledge that the phrase "by its nature" is best read to require a categorical approach. But, says the majority, Justice Thomas, in dissent in Dimaya , makes some good points about the meaning of the word "nature" that make a conduct-based reading possible. "Nature," the majority says, might mean "the essential character or constitution of something," and that "something" might be "particular acts" rather than the elements of a crime of conviction. Maj. Op. at 1247. The problem with the majority's argument is that the text of § 924(c) tells us precisely what that "something" is: when the statute says "by its nature," its clearly refers to "offense that is a felony." 12 And for the reasons I just explained, "offense that is a felony" must be read categorically. Isolating the word "nature" and claiming that it is amenable, out of context, to more than one meaning does little to inform the meaning of § 924(c)(3)(B) when § 924(c) is read as a whole.
The majority also credits Justice Thomas's suggestion that "the words 'by its nature,' 'substantial risk,' and 'may' would mean only that an offender who engages in risky conduct cannot benefit from the fortuitous fact that physical force was not actually used during his offense." Maj. Op. at 1248 (quoting Dimaya , 138 S.Ct. at 1254 ). Taken separately, I agree that these words and phrases could mean that. But together? No way.
Again, the residual clause defines "crime of violence" as "an offense that is a felony and ... that by its nature, involves a substantial risk that physical force ... may be used" during commission of the offense.
3. Section 924(c)(3)(B)'s "In the Course of Committing the Offense" Language Does Not Support a Conduct-Based Approach.
Third, in its reach to find another meaning in the statute, the majority considers as a factor the presence or absence of "any reference to the underlying crime's commission or circumstances," a factor that it says it distills from Dimaya . Maj. Op. at 1244. The majority argues that § 924(c)'s residual clause "is different" from § 16(b) because § 924(c)(3)(B) says "in the course of committing the offense," which it deems to be "conduct-based language." Id. at 1248. This is flat wrong-both statutes contain "in the course of committing the offense." Therefore, the statutes are not different at all. And if this temporal language somehow suggested a conduct-based approach, it likewise would do so for the identically worded § 16(b), and we know from Leocal that that is not the case.
We also know from the Supreme Court's decisions applying the categorical approach to ACCA that the fact that the risk must arise in the course of committing the offense does not admit of a conduct-based approach. In
James
, the Supreme Court explained that the "risk" that triggered ACCA's residual clause must arise "while the crime is in progress"-that is, in the course of committing the offense.
James
,
The majority's strained reading of § 924(c)'s residual clause does not, in my view, even approach plausible. Under Rodriguez , we must end the analysis there. The statute cannot be construed to avoid a plain violation of due process. And yet, "[u]nable to find sure footing in the statutory text, the [g]overnment and [the majority] pivot away from the plain language and raise a number of practical concerns. These practical considerations are meritless and do not justify departing from the statute's clear text." Pereira , 138 S.Ct. at 2118.
B. The Majority's Extra-textual Factors Do Not Support Application of a Conduct-Based Approach.
Even if we could set aside the text of the statute (which of course we may not do), the majority's three "practical considerations" lacking a textual hook support no different reading of § 924(c)'s residual clause. To review, these three practical considerations are because: in Johnson and Dimaya the government "never asked the Court to consider a conduct-based approach" (factor 1); "applying the categorical approach would avoid the impracticability of requiring sentencing courts to engage in after-the-fact reconstructions of the circumstances underlying prior convictions" (factor 5); and "applying the categorical approach would avoid the Sixth Amendment issues that could arise from sentencing courts making findings of fact that properly belong to juries" (factor 6). Maj. Op. at 1243-44.
Before I get into the majority's factors, I pause to note that although the majority claims to have distilled its factors from
Taylor
and its progeny, absent from the majority's consideration is one of
Taylor
's three reasons for applying the categorical approach to ACCA: that "the legislative history of the enhancement statute shows that Congress generally took a categorical approach to predicate offenses."
The Senate stated that the purpose of its revision was to "ensure that all persons who commit federal crimes of violence, including those crimes
set forth in
statutes
which already provide for enhanced sentences for their commission with a dangerous weapon, receive a mandatory sentence."
Relatedly, our court and nearly every other federal court in the nation has consistently applied the categorical approach to § 924(c)(3), and Congress has not once sought to intervene-despite the fact that, as evidenced by the above legislative history, Congress previously has substantially revised the statute in response to the federal courts' construction of it. "The claim to adhere to case law is generally powerful once a decision has settled statutory meaning" because "unlike in the context of constitutional interpretation, the legislative power is implicated, and Congress remains free to alter what [a] [c]ourt has done."
Patterson v. McLean Credit Union
,
The canon of constitutional avoidance "rest[s] on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts. The canon is thus a means of giving effect to congressional intent, not of subverting it."
Martinez
, 543 U.S. at 380,
I now turn to the majority's extra-textual factors.
1. Whether the Government Has Asked Us to Abandon the Categorical Approach Has No Relevance to the Constitutional Avoidance Analysis.
The first factor the majority considers is that here, unlike in Johnson and Dimaya , the government has argued for a conduct-based approach: "[T]he government has expressly (and at length) urged us to abandon the categorical approach to § 924(c)(3)(B) in favor of a conduct-based interpretation." Maj. Op. at 1245. First, this description strikes me as incomplete at best. For years, and even after Johnson , the government consistently has urged that we apply a categorical approach to § 924(c). It was only after our court invited the government to argue for abandonment of the categorical approach in supplemental panel briefing and en banc briefing in this case that the government changed course. And even then, in its en banc brief the government's primary argument was not that we should overrule McGuire , but rather that we should affirm Ms. Ovalles's § 924(c) conviction on the ground that her predicate offense satisfies the elements clause. See En Banc Br. of the Appellee USA at ii. The government argued only in the alternative that we should overrule McGuire insofar as it held that a categorical approach must be applied to § 924(c)'s residual clause.
Second, and more importantly, as the majority itself observes, this factor is not really "interpretive," id. at 1244; and so it is "an odd place to start in interpreting a statute." Id. Under Rodriguez it is clear that the government's suggestion (or lack of it) that we should apply a conduct-based approach to a statute is irrelevant to whether the text of the statute plausibly can be read to permit such an approach.
2. The Majority's Practical Problems and Sixth Amendment Factors in Reality Constitute One Irrelevant Factor that Fails to Support the Majority's Position.
The majority's fifth factor-the supposed lack of practical problems associated with a conduct-based approach-is yet another variety of extra-textual consideration that the Supreme Court in Rodriguez told us we cannot consider. See Rodriguez , 138 S.Ct. at 843. In any event, the majority's fifth and sixth considerations (the need to avoid Sixth Amendment issues that could arise from sentencing courts making findings that juries are required to make) are not separate issues; instead they are two sides of the same coin. Here's why.
It certainly was possible to apply a conduct-based approach to ACCA's residual clause and § 16(b) and still comply with the Sixth Amendment.
See
W. Pryor Concurrence at 8-9. Take ACCA's residual clause, for example. Say a defendant convicted of burglary three times in 2013 was charged in 2014 with being a felon in possession of a firearm, in violation of
The same is true for § 16(b) as incorporated by the INA-a conduct-based approach would merely lead to fewer removals. If a factfinder was tasked with determining whether a noncitizen had committed a crime with conduct that involved a substantial risk that physical force may be used, the factfinder's ability to make this finding could well depend on how long ago the crime was committed.
The majority's fifth and sixth factors, then, amount to one concern: that given the Sixth Amendment's dictates there may be serious practical hurdles to proving prior convictions.
Turning to that concern, the majority distinguishes ACCA and § 16, on the one hand, from § 924(c), on the other, because by requiring the examination of prior convictions
the two former statutes pose these practical hurdles, while the latter does not. Yes, it may be difficult to reconstruct the facts underlying the predicate convictions because of the passage of time and possible loss of witnesses and records; conversely, because § 924(c) is always applied to a contemporaneous offense, there is no such practical difficulty. This is true for ACCA and § 16 as incorporated into the INA. But what of § 16 in its numerous other applications? Many other, primarily criminal, statutes incorporate the "crime of violence" definition in § 16 as an element that must satisfied at the same time as the statute's other elements. In those applications, no reconstruction of old facts is necessary because, as with § 924(c) -and I use the majority's words here-"it's all one big ball of wax." Maj. Op. at 1249. As I emphasized above, " § 16 is a criminal statute, and it has both criminal and noncriminal applications," so we cannot solely look to its applications in the INA when examining whether it is similar to or different from § 924(c).
Leocal
, 543 U.S. at 11 n.8,
And, contrary to the majority's suggestion, practical problems do abound with a conduct-based approach to § 924(c)(3)(B), even if those problems are not completely coextensive with problems that might arise by using a conduct-based approach to ACCA's residual clause and § 16(b) as incorporated into the INA. As amici curiae the National Association of Criminal Defense Lawyers and Families Against Mandatory Minimums explain: "Under a fact-based approach, whether the charged predicate offense satisfies § 924(c)(3) would turn not on whether the defendant committed the predicate offense, but how he committed it." Br. of Amici at 11. In some § 924(c)(3)(B) cases (like my ACCA residual clause example above), proof of what made the defendant's conduct risky (that is, how he committed the predicate offense) will not be essential to satisfy the elements of the predicate offense. In those cases, will prosecutors know whether the offense ultimately will satisfy the residual clause, so as to facilitate informed charging decisions? Will defendants and defense counsel know whether the charged predicate will satisfy the residual clause, so as to enable informed plea bargaining decisions? I doubt it.
What's more, given the abstract nature of the residual clause inquiry I am not nearly as confident as the majority is that instructions can be fashioned to guide juries appropriately on-or that juries are well equipped to decide-what kind of conduct satisfies § 924(c)'s residual clause. Under a conduct-based approach, which the majority concedes must be based on facts found by a jury looking at the defendant's conduct, the jury's inquiry is divorced, in at least four ways, from the conduct it is tasked with examining. First, the jury must ignore any conduct that forms the basis for other charged offenses and focus only on the conduct involved in committing the § 924(c) predicate offense. This could prove difficult if, to use as an example Ms. Ovalles's case-in which she and her codefendants robbed a store, carjacked three vehicles, and attempted to carjack a fourth-the predicate offense (the attempted carjacking) occurred alongside other criminal conduct. Then, the text of § 924(c)(3)(B) provides two additional abstractions: "substantial risk" that physical force "may" be used. The majority says no problem-juries routinely decide what kind of conduct satisfies a substantial risk standard or what constitutes physical force. But "substantial risk" is only one abstraction. How does a jury decide whether conduct presents a substantial risk that physical force "may" be used? That is, how does a jury decide what conduct satisfies an abstraction ("may") of already abstract conduct ("substantial risk")? The majority has no answer for this. 14 Fourth, and further abstracting a jury's inquiry is that a defendant's use, carrying, or possession of a gun is insufficient, without more, to satisfy the risk standard in § 924(c)'s residual clause-or else the crime of violence element would be meaningless. A jury therefore must decide whether a defendant's predicate offense conduct only, separate and independent from the defendant's possession of a gun, presented a substantial risk that physical force may be used, that doubly abstract standard. We presume that juries follow instructions, true, but we cannot presume that a jury will be able to make sense of an inquiry this abstracted from the facts of the case. Nor can we presume, given these realities, that a district court will be able to provide sufficiently concrete instructions to guide the jury. 15
Finally, the majority's ultimate disposition of Ms. Ovalles's appeal proves my point about practical difficulties by highlighting another problem with a conduct-based approach: appeals. The majority, sitting as an appellate court, affirms Ms. Ovalles's § 924(c)(3)(B) conviction even though Ms. Ovalles did not admit, and no fact-finder found, that her conduct created a substantial risk that physical force may have been used in the course of committing the predicate offense of attempted carjacking. The majority decides as a matter of law that the risk element has been satisfied by examining the elements of the predicate offense to which she pled guilty. See Maj. Op. at 1252-53 (explaining that Ms. Ovalles's plea to the elements of attempted carjacking satisfy the elements clause and that "the real-life details of [her] crime" only "confirm it"). If § 924(c)(3)(B) is to have a new conduct-based "substantial risk" element, it often will not be the case that we can look to the defendant's admissions to the elements of the predicate offense to determine that this conduct element is satisfied. This case is a prime example.
To "confirm" its conclusion that the elements of the attempted carjacking offense to which Ms. Ovalles pled guilty satisfied the conduct-based residual clause element, the majority considers the totality of Ms. Ovalles's and her co-conspirators' conduct. But under the majority's own holding, whether the defendant engaged in conduct that satisfies the "substantial risk" standard is an element of the § 924(c) offense that must be decided by a jury or admitted by the defendant. Again, Ms. Ovalles never admitted that her attempted carjacking involved a substantial risk that the use of force might be used. Perhaps, without saying so, the majority is performing a harmless error analysis-an analysis the government never asked us to perform and on which the government bears the burden.
Will we uphold other convictions on appeal under this same flawed logic? Many defendants like Ms. Ovalles were convicted when
McGuire
required use of the categorical approach. Under
McGuire
, the district court was tasked with deciding as a matter of law whether the defendant's charged predicate offense satisfied the residual clause.
III.
The majority claims to be avoiding one constitutional problem-the unconstitutional vagueness of § 924(c)(3)(B) -with a practical solution-abandoning the categorical approach as applied to that statute. The law does not permit the majority's approach, and the text of § 924(c) does not permit the majority's resolution. Even under the majority's flawed framework, neither the government's position, the dictates of the Sixth Amendment, nor practical considerations support application of a conduct-based approach over a categorical one. And there is every indication that the majority's practical solution will breed a host of new practical problems.
Our displeasure with the categorical approach and the results of its application to residual clauses does not permit us to jettison it. The categorical approach is dictated by the text of the statute and Congress's intent to impose increased penalties based on the violation of certain predicate statutes. If Congress wants to change course, or enact a residual clause that comports with the dictates of due process, it can readily do so.
See
McCarthan v. Director of Goodwill Indust.-Suncoast, Inc.
,
In my view, the majority's erroneous decision perpetuates unconstitutional sentences for inmates sentenced under § 924(c)'s residual clause in this circuit. If I am correct that Leocal and Dimaya require a categorical approach to interpreting § 924(c)(3)(B), these inmates-who should be entitled to relief-are serving between five years and life in prison beyond what our Constitution allows. And we will have perpetuated that injustice by failing to apply faithfully the Supreme Court's directives.
I would not throw out the plain text of § 924(c)(3)(B) to save it from unconstitutionality. I would leave it to Congress save it. Respectfully, I dissent.
905 F.3d 1231 (Irma Ovalles v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.