14‐3872‐cr
United States v. Hill
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2015
(Argued: November 12, 2015 Decided: August 3, 2016)
No. 14‐3872‐cr
––––––––––––––––––––––––––––––––––––
UNITED STATES OF AMERICA,
Appellee,
‐v.‐
ELVIN HILL, A/K/A ELTON,
Defendant‐Appellant.
––––––––––––––––––––––––––––––––––––
Before: JACOBS, LIVINGSTON, and DRONEY, Circuit Judges.
Defendant‐appellant Elvin Hill appeals from his judgment of conviction,
dated October 3, 2014, in the United States District Court for the Eastern District
of New York (Matsumoto, J.). Hill was convicted of violating 18 U.S.C.
§ 924(j)(1), for a firearm‐related murder committed in the course of a crime of
violence pursuant to 18 U.S.C. § 924(c), in this case, Hobbs Act robbery, as
defined in 18 U.S.C. § 1951(b)(1). A summary order issued concurrently with
this opinion addresses and rejects most of Hill’s claims on appeal. This opinion
considers one of Hill’s challenges to his conviction: whether Hobbs Act robbery
qualifies as a “crime of violence” under 18 U.S.C. § 924(c)(3). We hold that it
1
does. First, we find that Hobbs Act robbery is categorically a “crime of
violence” under the “force clause” of this statute, § 924(c)(3)(A). Second, we
reject Hill’s argument that the Supreme Court in Johnson v. United States, 135
S. Ct. 2551 (2015), effectively rendered the “risk‐of‐force clause,” § 924(c)(3)(B),
void for vagueness. Accordingly, the judgment of conviction is AFFIRMED.
FOR APPELLEE: DANIEL S. SILVER, Amy Busa, Seth D.
DuCharme, Assistant United States
Attorneys, New York, N.Y., for Robert L.
Capers, United States Attorney for the
Eastern District of New York, for the United
States of America.
FOR DEFENDANT‐APPELLANT: YUANCHUNG LEE, Federal Defenders of
New York, New York, N.Y., for Elvin Hill.
DEBRA ANN LIVINGSTON, Circuit Judge:
In 1997, Fredy Cuenca, a livery cab driver, was robbed, shot, and killed
after picking up a fare in the middle of the day in Brooklyn. Almost 14 years
later, Rhan Powell admitted he was one of the two passengers who robbed
Cuenca. He also attested that Elvin Hill was the second passenger — the one
who carried the weapon and pulled the trigger. The Government filed an
indictment, charging Hill with violating 18 U.S.C. § 924(j)(1) for committing a
firearm‐related murder in the course of a “crime of violence,” as defined in 18
U.S.C. § 924(c)(3). In this case, the crime of violence was Hobbs Act robbery, as
2
defined in 18 U.S.C. § 1951(b)(1). Hill pleaded not guilty, proceeded to trial,
and was convicted of the charged offense.
This case raises the question whether Hobbs Act robbery is a “crime of
violence” within the meaning of 18 U.S.C. § 924(c)(3).1 Hill argues that Hobbs
Act robbery does not qualify categorically as a crime of violence under the
statute’s “force clause,” § 924(c)(3)(A), because it can be committed without
physical force or the threatened deployment of the same. He also contends that
Hobbs Act robbery cannot qualify as a crime of violence under the “risk‐of‐force
clause,” § 924(c)(3)(B), because the Supreme Court’s decision in Johnson v. United
States, 135 S. Ct. 2551 (Johnson II) (2015), effectively rendered that clause
unconstitutionally vague.
We reject both arguments and hold that Hobbs Act robbery is a crime of
violence under 18 U.S.C. § 924(c)(3). Accordingly, we affirm the district court’s
judgment of conviction.
Hill brings a number of additional claims on appeal, which we address in a
1
summary order concurrently issued today.
3
BACKGROUND2
Fredy Cuenca was a livery cab driver in New York City. One afternoon,
on June 29, 1997, he received a call from his dispatcher requesting a pickup in the
Bushwick neighborhood of Brooklyn. Two young men, Elvin Hill and Rhan
Powell, entered Cuenca’s cab. According to Powell, as they were reaching the
destination, Cuenca quoted the fare price, $10, which was higher than Hill and
Powell had anticipated. Powell suggested to Hill that they rob Cuenca. When
Cuenca stopped the cab, Hill yelled out, “[g]ive me the fucking money.” Joint
App’x 295. Cuenca handed some money he had in his hand to Powell. As
Powell was exiting the vehicle, Cuenca began to plead for his life in broken
English, pointing to a photograph of his children on the dashboard. Outside the
vehicle, Powell then heard a loud sound and saw “red on the windshield.” Id.
at 296. Hill had shot Cuenca — once, in the head — with a previously
concealed handgun. Hill and Powell fled the scene. Cuenca died.
Several witnesses heard the fatal gunshot and saw two young men exiting
the cab and fleeing the scene. One witness identified Hill as one of the
2 The factual background presented here is derived from the testimony and
evidence presented at Hill’s trial.
4
assailants during a lineup conducted about two months after the crime.3 But
Hill was not charged with the crime at that time. Rather, the indictment came
nearly 15 years later.
On April 26, 2011, Powell testified before a grand jury in the Eastern
District of New York and admitted that he was one of the two passengers
involved in the 1997 robbery. He testified that Hill was the one who had killed
Cuenca. On March 22, 2012, another federal grand jury, relying in part on
Powell’s 2011 testimony, returned an indictment against Hill. Therein, Hill was
charged with violating 18 U.S.C. § 924(j)(1), for committing a firearms‐related
murder in the course of a “crime of violence,” as defined in 18 U.S.C. § 924(c)(3).
The alleged predicate crime of violence was Hobbs Act robbery, as defined in 18
U.S.C. § 1951(b)(1).
Hill pleaded not guilty and proceeded to trial in the United States District
Court for the Eastern District of New York (Matsumoto, J.). On January 24,
2014, the jury returned a guilty verdict. The district court sentenced Hill to 43
Hill challenges the identification evidence from the lineup, a challenge we
3
determine to be without merit in the summary order published today.
5
years’ imprisonment and entered a judgment of conviction dated October 3,
2014. This appeal followed.
DISCUSSION
This opinion addresses one of Hill’s claims on appeal: whether Hobbs Act
robbery is a “crime of violence” within the meaning of 18 U.S.C. § 924(c)(3).
Hill argues that Hobbs Act robbery does not qualify as a crime of violence on
two grounds. First, he claims that Hobbs Act robbery fails to categorically
constitute a crime of violence under the statute’s “force clause,” § 924(c)(3)(A).
Second, he argues that the “risk‐of‐force clause,” § 924(c)(3)(B), should be
deemed void for vagueness under the Supreme Court’s decision in Johnson II.
We reject both contentions.
I
We begin with the interlocking statutory provisions involved in this
appeal. Hill was indicted and convicted under 18 U.S.C. § 924(j)(1). This
provision specifies as follows:
A person who, in the course of a violation of subsection (c), causes
the death of a person through the use of a firearm, shall[,] . . . if the
killing is a murder (as defined in section 1111), be punished by death
or by imprisonment for any term of years or for life . . . .
6
Section 924(c)(1)(A) in turn explains that “any person who, during and in
relation to any crime of violence . . . , uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm” violates subsection (c).
Critically, subsection (c) defines the term “crime of violence” as “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.
18 U.S.C. § 924(c)(3). We refer to § 924(c)(3)(A) as the “force clause” and
§ 924(c)(3)(B) as the “risk‐of‐force clause.”4
The “crime of violence” alleged in Hill’s indictment was Hobbs Act
robbery, in violation of 18 U.S.C. § 1951. Section 1951(a) penalizes a person who
“in any way or degree obstructs, delays, or affects commerce . . . by robbery or
extortion or attempts or conspires so to do, or commits or threatens physical
violence to any person or property in furtherance of a plan or purpose to do
4 The parties’ briefs refer to § 924(c)(3)(B) as the “residual clause.” We think the
shorthand “risk‐of‐force clause” is clearer and thus adopt that terminology.
7
anything in violation of this section.” And § 1951(b)(1) defines “robbery” to
mean
the unlawful taking or obtaining of personal property from the
person or in the presence of another, against his will, by means of
actual or threatened force, or violence, or fear of injury, immediate
or future, to his person or property, or property in his custody or
possession, or the person or property of a relative or member of his
family or of anyone in his company at the time of the taking or
obtaining.
Taking these statutes together, the jury found that Hill used a firearm to
commit a Hobbs Act robbery — pursuant to the Government’s theory, a “crime
of violence” under the firearm statute — and, in the course of that robbery, he
murdered Cuenca in violation of § 924(j)(1).
II
A
We first consider Hill’s claim that Hobbs Act robbery categorically fails to
constitute a crime of violence under the force clause. To determine whether an
offense is a crime of violence, courts employ what has come to be known as the
“categorical approach.” Taylor v. United States, 495 U.S. 575, 600 (1990); see also
Mathis v. United States, 136 S. Ct. 2243, 2248‐49 (2016) (outlining the categorical
approach); Descamps v. United States, 133 S. Ct. 2276, 2281 (2013) (same); United
States v. Acosta, 470 F.3d 132, 135 (2d Cir. 2006) (per curiam) (applying the
8
categorical approach to determine whether a predicate crime was a “crime of
violence” under § 924(c)). We have explained that the categorical approach is
“‘not only consistent with both precedent and sound policy’ but[] also . . .
‘necessary in view of the language of the applicable statutes.’” Vargas‐Sarmiento
v. U.S. Depʹt of Justice, 448 F.3d 159, 167 (2d Cir. 2006) (quoting Jobson v. Ashcroft,
326 F.3d 367, 372 (2d Cir. 2003)). The categorical approach guides our analysis
here.5
Under the categorical approach, courts identify “the minimum criminal
conduct necessary for conviction under a particular statute.” Acosta, 470 F.3d at
135. In doing so, courts “‘look only to the statutory definitions’ — i.e., the
elements — of [the] . . . offense[], and not ‘to the particular [underlying] facts.’”
Hill does not contest that the Hobbs Act is a divisible statute, and that Hill was
5
charged with Hobbs Act robbery (as opposed to, say, Hobbs Act extortion). A divisible
statute “sets out one or more elements of the offense in the alternative.” Descamps, 133
S. Ct. at 2281; see also Vargas‐Sarmiento, 448 F.3d at 167 (explaining how to identify
divisible penal statutes). If some but not all of the alternative elements would amount
to a crime of violence, a court can “modify” the categorical approach by looking at a
limited set of documents, including the indictment, to consider under which portion of
the statute the defendant was charged. See Descamps, 133 S. Ct. at 2284‐85. After
determining which portion was at issue, a court then applies the categorical approach to
that part of the challenged statute. Id. Hill agrees that the Hobbs Act is divisible, but
argues that Hobbs Act robbery is not, and the Government does not contest this
assertion. See Hill Supp. Br. 23 n.9. See generally Gov’t Supp. Br. 6‐16 (relying on the
categorical, rather than the modified categorical, approach). To that end, we express
no view regarding whether Hobbs Act robbery is itself divisible, and we apply the
standard categorical approach to the entire offense as defined in the statute.
9
Descamps, 133 S. Ct. at 2283 (quoting Taylor, 495 U.S. at 600); see also Acosta, 470
F.3d at 135 (“[W]e focus on the intrinsic nature of the offense rather than on the
circumstances of the particular crime.”). The reviewing court “cannot go
behind the offense as it was charged to reach [its] own determination as to
whether the underlying facts” qualify the offense as, in this case, a crime of
violence. Ming Lam Sui v. INS, 250 F.3d 105, 117‐18 (2d Cir. 2001) (quoting Lewis
v. INS, 194 F.3d 539, 543 (4th Cir. 1999)). As relevant here, the categorical
approach requires us to consider the minimum conduct necessary for a
conviction of the predicate offense (in this case, a Hobbs Act robbery), and then
to consider whether such conduct amounts to a crime of violence under
§ 924(c)(3)(A).
One final point remains. Critically, the Supreme Court has made clear in
employing the categorical approach that to show a predicate conviction is not a
crime of violence “requires more than the application of legal imagination to
[the] . . . statute’s language.” Gonzales v. Duenas‐Alvarez, 549 U.S. 183, 193
(2007). As relevant here, there must be “a realistic probability, not a theoretical
possibility,” that the statute at issue could be applied to conduct that does not
constitute a crime of violence. Id. To show that a particular reading of the
10
statute is realistic, a defendant “must at least point to his own case or other cases
in which the . . . courts in fact did apply the statute in the . . . manner for which
he argues.” Id. To that end, the categorical approach must be grounded in
reality, logic, and precedent, not flights of fancy. See Moncrieffe v. Holder, 133
S. Ct. 1678, 1684‐85 (2013) (noting that “focus on the minimum conduct
criminalized by the [relevant] statute is not an invitation to apply ‘legal
imagination’ to the . . . offense” (quoting Duenas‐Alvarez, 549 U.S. at 193)).
B
The question whether Hobbs Act robbery constitutes a crime of violence
under the force clause is a matter of first impression in our Circuit.6 We have,
however, previously stated that conspiracy to commit Hobbs Act robbery is a
crime of violence under the Bail Reform Act (which employs the same definition
6 The Ninth Circuit recently reiterated its conclusion that Hobbs Act robbery
satisfies the force clause. See United States v. Howard, No. 15‐10042, 2016 WL 2961978
(9th Cir. May 23, 2016, amended Jun. 24, 2016) (mem.) (concluding that Hobbs Act
robbery is a “crime of violence” under 18 U.S.C. § 924(c)(3)(A) and disagreeing with the
defendant’s argument that the “fear of injury” language requires an alternative
conclusion); United States v. Mendez, 992 F.2d 1488, 1491 (9th Cir. 1993) (observing that a
substantive Hobbs Act robbery offense “indisputably qualifies as a crime of violence,” a
conclusion from which the court derived its holding that conspiracy to commit such an
offense categorically creates a “substantial risk that physical force may be used”); see
also United States v. Farmer, 73 F.3d 836, 842 (8th Cir. 1996) (concluding that Hobbs Act
robbery “has as an element the use, attempted use, or threatened use of physical force
against the person of another” such that it qualifies as a “serious violent felony” under
18 U.S.C. § 3559(c)).
11
of the term as in § 924(c)(3)) because one of the elements of the offense “is actual
or threatened use of force” and “if the element of violence is not present, no
conviction under section 1951 can occur.” United States v. DiSomma, 951 F.2d
494, 496 (2d Cir. 1991) (citing 18 U.S.C. § 1951(b)(1)); see also United States v.
Santos, 449 F.3d 93, 99 (2d Cir. 2005) (noting that conspiracy to commit Hobbs Act
robbery requires an intent to take personal property “by force”); cf. VAM Check
Cashing Corp. v. Fed. Ins. Co., 699 F.3d 727, 730 n.2 (2d Cir. 2012) (suggesting that
the definition of robbery in 18 U.S.C. § 1951 “limit[s] the crime to larcenies
committed by force or threat of force”).
As stated above, the term “robbery” in the Hobbs Act is defined, in
relevant part, as “the unlawful taking or obtaining of personal property from the
person or in the presence of another, against his will, by means of actual or
threatened force, or violence, or fear of injury, immediate or future, to his person
or property.” 18 U.S.C. § 1951(b)(1). Hill does not dispute that at least two of
the ways in which a Hobbs Act robbery may be accomplished (by means of
“actual or threatened force” or “violence”) would appear, self‐evidently, to
satisfy § 924(c)’s force clause (defining a crime of violence as any felony that “has
as an element the use, attempted use, or threatened use of physical force against
12
the person or property of another”). He focuses instead on those Hobbs Act
robberies accomplished by means of putting the victim in “fear of injury” to his
person or property, arguing that such robberies can be accomplished without the
“use, attempted use, or threatened use of physical force” so that the minimum
conduct necessary to commit a Hobbs Act robbery does not include the element
necessary to qualify such robberies as crimes of violence for the purpose of
§ 924(c)(3)(A). Hill primarily advances two arguments to support this
contention. We disagree with both.
Hill first contends that a perpetrator could rob a victim by putting him in
fear of injury to his property through non‐forceful means. He offers
hypotheticals such as threatening to throw paint on the victim’s house, to spray
paint his car, or, most colorfully, to “pour[ ] chocolate syrup on his passport.”
Hill Supp. Br. 29. Hill argues that Johnson v. United States, 559 U.S. 133
(Johnson I) (2010), made clear that the physical force that must be used,
attempted, or threatened to satisfy statutory language such as that in
§ 924(c)(3)(A) must be “violent,” “great,” or “strong.” 7 On that basis, Hill
7 Johnson I construed the meaning of physical force for purposes of 18 U.S.C.
§ 924(e)(2)(B)(i) which, in relevant part, defines a violent felony for purposes of the
Armed Career Criminal Act (“ACCA”) as a crime that “has as an element the use,
13
argues that, assuming his hypothetical acts would indeed be sufficient to put a
victim in “fear of injury” to his property so that a Hobbs Act robbery might be
accomplished (a proposition that is hardly obvious as a practical and
precedential matter), the force employed in these hypothetical cases would be
insufficient to satisfy the standard in Johnson I.8 We disagree.
attempted use, or threatened use of physical force against the person of another.” This
provision thus employs language identical to that used in § 924(c)(3)(A), except for the
fact that “crime of violence” is defined in the latter to include crimes having as an
element the actual, attempted, or threatened use of physical force “against the person or
property of another.” § 924(c)(3)(A) (emphasis added).
8 Hill also suggests, along these same lines, that a perpetrator could successfully
commit Hobbs Act robbery by putting a victim in fear of economic injury to an
intangible asset without the use of physical force. Hill relies almost exclusively on
hypotheticals, not actual cases, to suggest that there is a realistic possibility that Hobbs
Act robbery could extend to such a fact pattern. He does cite a Fourth Circuit case,
United States v. Iozzi, 420 F.2d 512 (4th Cir. 1970), but that case involved a charge of
Hobbs Act extortion, not robbery, on the basis that “[the defendant] obtained or
attempted to obtain money from building contractors with their consent by causing the
contractors to fear financial and economic loss,” id. at 513 (emphasis added). The
Government, for its part, contends that “[i]t defies logic to suggest that someone could
be robbed by placing him in ‘fear of injury’ without using or threatening to use physical
force.” Gov’t Supp. Br. 12; see also DiSomma, 951 F.2d at 496 (“[I]f the element of
violence is not present, no conviction under section 1951 can occur.”). We conclude as
to this argument that while it may indeed be the case that Hobbs Act robbery does not
extend to the hypotheticals Hill posits, see United States v. Pena, No. 15‐cr‐551 (AJN),
2016 WL 690746, at *11 (S.D.N.Y. Feb. 11, 2016) (concluding that “fear of injury” in the
Hobbs Act robbery statute requires “fear of injury from the use of force”), we need not
explicate the statute’s outer limits in this regard, as Hill has failed to show any realistic
probability that a perpetrator could effect such a robbery in the manner he posits
without employing or threatening physical force, see Duenas‐Alvarez, 549 U.S. at 193
(noting that a predicate conviction fails to qualify as a crime of violence using the
14
Hill’s argument rests on a flawed reading of Johnson I. In that case, the
Court declined to construe “physical force” for the purposes of § 924(e)(2)(B)(i) in
line with the common‐law crime of battery, which deemed the element of “force”
to be satisfied “by even the slightest offensive touching.”9 559 U.S. at 139. But
in rejecting this interpretive approach, the Court did not construe § 924(e)(2)(B)(i)
to require that a particular quantum of force be employed or threatened to satisfy
its physical force requirement. The Court concluded, instead, that “physical
categorical approach only when there is “a realistic probability, not a theoretical
possibility” that the statute at issue could be applied to conduct not constituting such a
crime).
9 We assume arguendo Johnson I’s relevance to the construction of § 924(c)(3)(A),
but note that the case might not apply to the present statute for at least two reasons.
First, as a matter of precedent, our Circuit has long defined the meaning of “physical
force” in the context of 18 U.S.C. § 16 (which employs language similar to that used in
§ 924(c)(3)(A)) as “power, violence, or pressure directed against a person or thing,” and
we have affirmed this understanding of force in post‐Johnson I cases. See Morris v.
Holder, 676 F.3d 309, 314 (2d Cir. 2012) (quoting Vargas‐Sarmiento, 448 F.3d at 169); see
also Acosta, 470 F.3d at 134‐35 (noting that this Circuit has interpreted § 16 and
§ 924(c)(3)(A) by applying the same case law). Second, Johnson I’s reasoning does not
necessarily extend to a statute like § 924(c)(3)(A), which includes within its definition of
crime of violence those felonies that have as an element physical force threatened or
employed against the person or property of another, as opposed to only the former.
Johnson I’s holding rejected the possibility that mere “offensive touching,” sufficient for
common‐law battery, could constitute a use of physical force in the context of
§ 924(e)(2)(B)(i). Johnson I, 559 U.S. at 139. Yet it is not obvious what “offensive
touching” could possibly mean for property — a point that may suggest Johnson I is
inapplicable to the force clause herein, or may simply reinforce our conclusion that
nothing in Johnson I suggests that force sufficient to injure property would, under that
decision, be insufficient to count as a use of physical force.
15
force” as used in § 924(e)(2)(B)(i) (which defines a violent felony in relevant part
as a crime that “has as an element the use, attempted use, or threatened use of
physical force against the person of another”) means simply “violent force — that
is, force capable of causing physical pain or injury to another person.” 559 U.S.
at 140; see also United States v. Castleman, 134 S. Ct. 1405, 1417 (2014) (Scalia, J.,
concurring in part and concurring in judgment) (rejecting the argument that
Johnson I “requires force capable of inflicting ‘serious’ bodily injury,” as opposed
to “force capable of causing physical pain or injury, serious or otherwise”).
Assuming arguendo Johnson I’s relevance to the construction of § 924(c)(3),
“physical force” as used in the provision at issue here means no more nor less
than force capable of causing physical pain or injury to a person or injury to
property. See § 924(c)(3) (defining “crime of violence” in relevant part as a
felony with an element requiring “use, attempted use, or threatened use of
physical force against the person or property of another” (emphasis added)).
Hill’s hypotheticals then — to the degree that they would indeed satisfy the
Hobbs Act’s “fear of injury” standard — do not fail to involve the use or
threatened use of physical force.
16
Hill’s second claim is no more successful. Hill next contends that an
individual can commit a Hobbs Act robbery without using or threatening the use
of physical force by putting the victim in fear of injury through such means, inter
alia, as threatening to withhold vital medicine from the victim or to poison him.
Lacking any case in which a defendant was in fact convicted for committing
Hobbs Act robbery through such means, Hill relies principally on these
hypotheticals to argue that such conduct entails an insufficient direct application
of physical force to satisfy the force clause — even if it indisputably involves the
threatened indirect application of force. These hypotheticals are insufficient
because a defendant is required to “point to his own case or other cases in which
the . . . courts in fact did apply the statute” in such a manner to show that there is
a “realistic probability” that the Hobbs Act would reach the conduct Hill
describes. Duenas‐Alvarez, 549 U.S. at 193.10 Even assuming, arguendo, that
there is indeed a “realistic probability” that the Hobbs Act would reach the
10 This requirement also undermines Hill’s suggestion that a perpetrator could
successfully commit Hobbs Act robbery by unintentionally placing a victim in fear of
injury. In support of this argument, he cites a line of out‐of‐circuit cases interpreting
the “intimidation” element of the federal bank robbery statute, 18 U.S.C. § 2113(a), as
including unintentional intimidation. See, e.g., United States v. Kelley, 412 F.3d 1240,
1244 (11th Cir. 2005). However, these decisions are insufficient because, as is the case
with his contention that Hobbs Act robbery includes threats involving the indirect
application of force, Hill cannot point to cases in which “courts in fact did apply the
statute in the . . . manner for which he argues.” Duenas‐Alvarez, 549 U.S. at 193.
17
conduct Hill describes (or analogous conduct), we again disagree that these
hypotheticals demonstrate that a Hobbs Act robbery is not categorically a crime
of violence for the purpose of § 924(c)(3)(A).
Hill argues, in effect, that placing a victim in fear of injury by threatening
the indirect application of physical force is not sufficient to constitute the
threatened use of physical force. Yet the Supreme Court has suggested
otherwise. In Castleman, the Supreme Court, construing “physical force” as it is
employed in connection with § 922(g)(9), made clear that physical force
“encompasses even its indirect application,” as when a battery is committed by
administering a poison: “That the harm occurs indirectly, rather than directly
(as with a kick or punch), does not matter” lest we conclude that pulling the
trigger on a gun involves no use of force “because it is the bullet, not the trigger,
that actually strikes the victim.” 11 134 S. Ct. at 1414‐15. Hill offers no
persuasive reason why the same principle should not apply to the construction
11 Section 922(g)(9) restricts persons who have been convicted of certain
misdemeanor crimes of domestic violence from possessing firearms or ammunition.
In relevant part, the statute defines crimes of domestic violence as misdemeanors that
“ha[ve], as an element, the use or attempted use of physical force . . . committed by a
current or former spouse, parent, or guardian of the victim, by a person with whom the
victim shares a child in common, by a person who is cohabiting with or has cohabited
with the victim as a spouse, parent, or guardian, or by a person similarly situated to a
spouse, parent, or guardian of the victim.” 18 U.S.C. § 921(a)(33)(A).
18
of § 924(c)(3), so that, as regarding the Hobbs Act, a robbery still has as an
element “the use, attempted use, or threatened use of physical force against the
person or property of another,” notwithstanding that it is accomplished by
threatening to poison a victim, rather than to shoot him. Some threats do not
require specification of any particular means in order to be effective; yet they still
threaten some type of violence and the application of some force. Consider:
“That’s a nice car — would you like to be able to continue driving it?”
Hill relies on Chrzanoski v. Ashcroft, 327 F.3d 188, 194 (2d Cir. 2003), to
argue that “the act of placing another in fear of injury” constitutes, “at best,” a
“threat of injury,” which is not the same as a threat of physical force. Hill Supp.
Br. 24‐25. In Chrzanoski, we addressed a Connecticut misdemeanor that
criminalized causing injury to another person, concluding that the misdemeanor
at issue there was not a crime of violence for the purpose of deportation
proceedings and as defined in 28 U.S.C. § 16(a) because it did not require that
injury be caused through the use of physical force.12 327 F.3d at 195‐96; see also
Vargas‐Sarmiento, 448 F.3d at 175 n.10 (noting that, in Chrzanoski, “[b]ecause the
12 As already noted, § 16 defines a crime of violence similarly to § 924(c)(3), and
we have interpreted both statutes by applying the same case law. See Acosta, 470 F.3d
at 134‐35.
19
plain language of the Connecticut statute did not make use of force an explicit or
implicit element, we ruled that misdemeanor third degree assault was not a crime
of violence under § 16(a)”). But as we have said, the taking of personal property
“‘by force,’ . . . is required in Hobbs Act robbery.” Santos, 449 F.3d at 99
(emphasis added); see also DiSomma, 951 F.2d at 496 (“[I]f the element of violence
is not present, no conviction under section 1951 can occur.”). And such
robberies may be accomplished, inter alia, by placing the victim in fear of injury
at the point of a gun (as in the present case) or by other menacing conduct, as
when a perpetrator “wrongfully and intentionally use[s] an individual’s
reputation ‘as a prominent figure in the Russian criminal underworld alone’ to
instill fear.” Santos, 449 F.3d at 100‐01. To the degree that any aspect of
Chrzanoski’s reasoning suggests that the conduct Hill describes does not involve
the threatened use of physical force, moreover, the Chrzanoski panel did not have
the benefit of the Supreme Court’s reasoning in Castleman to the effect that a use
of physical force can encompass acts undertaken to cause physical harm, even
when the harm occurs indirectly (as with poisoning) “rather than directly (as
with a kick or punch).” Castleman, 134 S. Ct. at 1415; see also Vargas‐Sarmiento,
448 F.3d at 175 (observing, in the context of § 16(b), that “we are not persuaded
20
by [the] argument that first‐degree manslaughter is not a crime of violence when
it is committed by a person who intentionally poisons the food of an unwitting
victim rather than by a person who directly injects the poison into his victim’s
arm[, as i]n either situation, the killer has intentionally availed himself of the
forceful physical properties of poison to cause death”). Accordingly, we are
unpersuaded by Hill’s reliance on Chrzanoski.
In sum, we agree with the Ninth Circuit, see supra note 6, that Hobbs Act
robbery “has as an element the use, attempted use, or threatened use of physical
force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A). We
have considered each of Hill’s arguments to the contrary and conclude that they
are all without merit.13
13 A panel of this circuit recently held that New York’s first‐degree robbery
statute, see N.Y. Penal Law §§ 160.00, 160.15, fails to categorically qualify as a “crime of
violence” for purposes of U.S.S.G. § 4B1.2(a)(1), as it is possible to commit it “without
necessarily using violent force.” United States v. Jones, No. 15‐1518, 2016 WL 3923838,
at *6 (2d Cir. July 21, 2016). Hill’s suggestion that this decision has any relevance to
ours is mistaken. The Jones panel addressed a distinct robbery statute, compare N.Y.
Penal Law § 160.15 (including under the definition of first‐degree robbery the case
where the defendant or another participant in the crime “is armed with a deadly
weapon”), with 18 U.S.C. § 1951, and it interpreted that statute with reference to a
distinct body of state‐law precedent inapposite in our case. See Jones, 2016 WL
3923838, at *5. Additionally, the Jones panel assessed whether the state‐law conviction
was a crime of violence for purposes of U.S.S.G. § 4B1.2(a)(1) which, unlike 18
U.S.C. § 924(c)(3)(A), does not include the use or threatened use of “physical force
against the person or property of another.” § 924(c)(3)(A) (emphasis added); compare
21
III
Even if Hobbs Act robbery did not qualify as a crime of violence pursuant
to § 924(c)(3)(A), such a robbery unequivocally qualifies as a crime of violence
pursuant to § 924(c)(3)(B) because it, “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.” 18 U.S.C. § 924(c)(3)(B). Hill does not
contend otherwise. Instead, he argues that § 924(c)(3)(B) is inapplicable here on
the ground that the risk‐of‐force clause is void for vagueness in light of Johnson II.
For the following reasons, we disagree.
The Fifth Amendment guarantees that “[n]o person shall . . . be deprived
of life, liberty, or property, without due process of law.” From this
constitutional provision stems the proscription against vague criminal laws.
U.S.S.G. § 4B1.2(a)(1) (qualifying offenses must have “as an element the use, attempted
use, or threatened use of physical force against the person of another” (emphasis added)).
Nor is Jones’s suggestion, in dicta, that the previous version of U.S.S.G. § 4B1.2(a) is
“likely void for vagueness in light of [Johnson II],” relevant to our analysis in Part III of
this opinion. Jones, 2016 WL 3923838, at *6. Unlike the risk‐of‐force clause in this case,
the prior version of § 4B1.2(a)(2) was textually identical to § 924(e)(2)(B) (the clause at
issue in Johnson II). See U.S.S.G. § 4B1.2(a) (2015) (defining “crime of violence” as a
qualifying offense that “is burglary of a dwelling, arson, or extortion, involves the use of
explosives, or otherwise involves conduct that presents a serious potential risk of
physical injury to another”). As we explain in this opinion, the risk‐of‐force clause at
issue here contains no confusing list of predicate offenses and is significantly narrower
in scope than the clause at issue in Johnson II – material distinctions that make all the
difference. See infra Part III.
22
“The void‐for‐vagueness doctrine prohibits the government from imposing
sanctions ‘under a criminal law so vague that it fails to give ordinary people fair
notice of the conduct it punishes, or so standardless that it invites arbitrary
enforcement.’” Welch v. United States, 136 S. Ct. 1257, 1262 (2016) (quoting
Johnson II, 135 S. Ct. at 2556).
In Johnson II, the Supreme Court concluded that the “residual clause” of
the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague. 135 S. Ct. at
2557. Before Johnson II, the ACCA worked as follows. In general, an
individual who unlawfully possessed a firearm could be punished by up to 10
years’ imprisonment. 18 U.S.C. §§ 922(g), 924(a)(2). But if the violator had
three or more prior convictions for a “serious drug offense” or a “violent felony,”
the ACCA extended his or her prison term to a minimum of 15 years and a
maximum of life. Id. § 924(e)(1). The ACCA defined a “violent felony” as any
felony 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 . . . .
23
Id. § 924(e)(2)(B) (emphasis added). Johnson II determined that the so‐called
“residual clause” of subsection (ii), italicized above, is constitutionally invalid.
The Supreme Court in Johnson II determined that “[t]wo features of the
residual clause conspire to make it unconstitutionally vague.” 135 S. Ct. at 2557.
In particular, the Court focused on the double‐layered uncertainty embedded in
the clause’s operation — which required courts employing the categorical
approach first to estimate the potential risk of physical injury posed by “a
judicially imagined ‘ordinary case’ of [the] crime” at issue, and then to consider
how this risk of injury compared to the risk posed by the four enumerated
crimes, which are themselves, the Court noted, “far from clear in respect to the
degree of risk each poses.”14 Id. at 2557‐58 (quoting Begay v. United States, 553
14 As the Johnson II Court recognized, “[b]y asking whether the crime ‘otherwise
involves conduct that presents a serious potential risk,’ . . . the residual clause forces
courts to interpret ‘serious potential risk’ in light of the four enumerated crimes —
burglary, arson, extortion, and crimes involving the use of explosives.” 135 S. Ct. at
2558 (emphasis omitted). But no rhyme or reason appears to connect these crimes, in
terms of assessing either the method for evaluating the risk of injury posed, or the
degree of risk: “Does the ordinary burglar invade an occupied home by night or an
unoccupied home by day? Does the typical extortionist threaten his victim in person
with the use of force, or does he threaten his victim by mail with the revelation of
embarrassing personal information?” Id. The Court concluded that “[c]ommon sense
has not . . . produced a consistent conception of the degree of risk posed by each of the
four enumerated crimes” and that these crimes “are not much more similar to one
another in kind than in degree of risk posed.” Id. at 2559.
24
U.S. 137, 143 (2008)). It was these twin ambiguities — “combining indeterminacy
about how to measure the risk posed by a crime with indeterminacy about how
much risk it takes for the crime to qualify as a violent felony” — that offended
the Constitution. Id. at 2558 (emphasis added); see also id. at 2560 (observing
that “[e]ach of the uncertainties in the residual clause may be tolerable in
isolation, but ‘their sum makes a task for us which at best could be only
guesswork’” (quoting United States v. Evans, 333 U.S. 483, 495 (1948))).
We conclude that the Supreme Court’s explanation for its conclusion in
Johnson II renders that case inapplicable to the risk‐of‐force clause at issue here.
Section 924(c)(3)(B) does not involve the double‐layered uncertainty present in
Johnson II. Granted, courts construing the provision must grapple with
assessing the risk of physical force posed by the “ordinary” instance of a
predicate crime. Assessing whether a felony, by its nature, poses a substantial
risk that “physical force against the person or property of another may be used in
the course of committing the offense,” § 924(c)(3)(B), however, is a far narrower
and simpler undertaking than divining whether a felony, not being one of four
enumerated, but disparate crimes, “otherwise involves conduct that presents a
serious potential risk of physical injury to another,” § 924(e)(2)(B)(ii). A
25
straightforward comparison of the texts of the two provisions — analyzed in light
of the reasoning in Johnson II and other case law — makes clear that Hill is
mistaken in suggesting that the provisions are materially indistinguishable.
First, and most obviously, the risk‐of‐force clause contains no mystifying
list of offenses and no indeterminate “otherwise” phraseology — a defining
feature of the ACCA’s residual clause that, in Johnson II, was understood to add
an additional layer of uncertainty as to “how much risk it takes for a crime to
qualify as a violent felony.” 135 S. Ct. at 2558. In Johnson II, the Court cited
this list as a key aspect of § 924(e)(2)(B)(ii), distinguishing the ACCA’s residual
clause from other laws that the Government warned could be vulnerable to
vagueness challenge. Indeed, the Court rejected the Government’s argument
that its decision in Johnson II would draw into question statutes that, like the one
here, do not “link[ ] a phrase such as ‘substantial risk’ to a confusing list of
examples.” Id. at 2561. Moreover, an analysis of the Court’s pre‐Johnson II
precedents attempting to construe the residual clause makes clear that the
presence of these enumerated offenses was, as Johnson II suggested, the prime
cause of uncertainty in that provision, and the key obstacle to consistent judicial
26
construction.15 As the Court recognized in Begay, the enumerated offenses are
“far from clear in respect to the degree of risk each poses.” 553 U.S. at 143. The
15 In these earlier cases, the Court consistently relied on the list of offenses as its
primary tool of construction through which to determine which predicate crimes
constituted violent felonies. See, e.g., Sykes v. United States, 564 U.S. 1, 15‐16 (2011)
(observing that “[t]he residual clause imposes enhanced punishment for unlawful
possession of [a] firearm when the relevant prior offenses involved a potential risk of
physical injury similar to that presented by burglary, extortion, arson, and crimes
involving use of explosives,” though noting that “this approach may at times be more
difficult for courts to implement”); Begay, 553 U.S. at 143 (holding that “the examples in
[the residual clause] limit the scope of the clause to crimes that are similar to the
examples themselves”); James v. United States, 550 U.S. 192, 218 n.1 (2007) (Scalia, J.,
dissenting) (referring to the list of enumerated offenses as providing “the defining
characteristic of the residual provision”). Nevertheless, although the Justices seemed
largely to agree that the enumerated list was dispositive of the required analysis, they
consistently diverged on how Congress intended the list itself to be employed.
Compare, e.g., Begay, 553 U.S. at 143 (holding that courts “should read the examples as
limiting the crimes that [the residual clause] covers to crimes that are roughly similar, in
kind as well as in degree of risk posed, to the examples themselves”), with id. at 149
(Scalia, J., concurring in the judgment) (arguing instead that the Court should
“determine which of the enumerated offenses poses the least serious risk of physical
injury, and then . . . set that level of risk as the ‘serious potential risk’ required by the
statute”); and id. at 158‐59 (Alito, J., dissenting) (disagreeing with the majority’s view
that predicate crimes must be similar not only in degree of risk, but also in kind, to the
enumerated offenses). The Justices also consistently disagreed on what unified the
four enumerated offenses for purposes of defining the requisite level of risk. Compare,
e.g., Begay, 553 U.S. at 144‐45 (majority opinion) (arguing that the four enumerated
crimes “all . . . involve[d] purposeful, ‘violent,’ and ‘aggressive’ conduct” and relying
on this characteristic to exclude a DUI conviction), with Sykes, 564 U.S. at 13 (noting that
the “phrase ‘purposeful, violent, and aggressive’ has no precise textual link to the
residual clause,” and that, most of the time, “risk levels provide a categorical and
manageable standard”); and id. at 36 n.1 (Kagan, J., dissenting) (“I understand the
majority to retain the ‘purposeful, violent, and aggressive’ test, but to conclude that it is
‘redundant’ in this case.”); compare, e.g., James, 550 U.S. at 199 (“[T]he most relevant
common attribute of the enumerated offenses of burglary, arson, extortion, and
27
Court reaffirmed this point in Johnson II, noting the absence of apparent
commonalties among the enumerated offenses, and the confusion thereby
generated in construing the residual provision. See 135 S. Ct. at 2557‐60. In
short, as Johnson II itself attests, it is evident that the Court’s “repeated failures to
craft a principled and objective standard out of the residual clause” were failures
in large part because of the list of enumerated offenses. 135 S. Ct. at 2558.16
Moreover, even if the list of enumerated offenses is not alone sufficient to
distinguish the residual clause in Johnson II from the risk‐of‐force clause at issue
here (a conclusion which would ignore the Court’s fraught history with the
residual clause), the text of the risk‐of‐force clause differs in additional, material
ways. The ACCA’s residual clause defines crimes as violent felonies if they,
explosives use is . . . that all of these offenses . . . create significant risks of bodily injury
or confrontation that might result in bodily injury.”), with id. at 218 n.1 (Scalia, J.,
dissenting) (criticizing the majority for “imprecisely identif[ying] the common
characteristic of the enumerated offenses,” and arguing that “the word
‘confrontation’ . . . is an invention entirely divorced from the statutory text”).
16 Indeed, absent such a confounding list of inconsistent enumerated offenses,
the Court has had little trouble interpreting language in 18 U.S.C. § 16(b) that is the
same as that in the risk‐of‐force clause at issue here. See Leocal v. Ashcroft, 543 U.S. 1, 11
(2004) (observing, in a unanimous decision, that “[t]he ordinary meaning of [‘crime of
violence’], combined with § 16’s emphasis on the use of physical force against another
person (or the risk of having to use such force in committing a crime), suggests a
category of violent, active crimes that cannot be said naturally to include DUI
offenses”).
28
inter alia, “present[] a serious potential risk of physical injury to another.”
18 U.S.C. § 924(e)(2)(B)(ii). This terminology is materially different from that in
the risk‐of‐force clause, which defines predicate crimes as those that by their
“nature[] involve[] a substantial risk that physical force against the person or
property of another may be used in the course of committing the offense.” Id.
§ 924(c)(3)(B). Both the Supreme Court and this Court have noted that the
language in the latter provision is both narrower and easier to construe. See
Leocal v. Ashcroft, 543 U.S. 1, 10 (2004) (holding that “[t]he reckless disregard in §
16 [employing the language of § 924(c)(3)(B)] relates not to the general conduct or
to the possibility that harm will result from a person’s conduct, but to the risk
that the use of physical force against another might be required in committing a
crime”); id. at 10 n.7 (noting that “§ 16(b) plainly does not encompass all offenses
which create a ‘substantial risk’ that injury will result from a person’s conduct”
(emphasis added)); Jobson, 326 F.3d at 372‐73 (“[T]he risk that a defendant will
use physical force in the commission of an offense is materially different from the
risk that an offense will result in physical injury.”); id. at 373 n.5 (observing that
the “risk of physical injury” language “was intended to be broader” than the
language in the risk‐of‐force clause). Indeed, in interpreting the language in
29
§ 16(b), which is materially indistinguishable from the provision at issue here, we
have had little trouble narrowing, and construing, its scope. See, e.g., id. at 374
(“[S]ection 16(b) requires that an offense inherently poses a substantial risk that a
defendant will [intentionally] use physical force . . . .”). As one of our sister
circuits recently observed, even apart from the enumerated offenses, the
language of the risk‐of‐force clause “is distinctly narrower” than that in the
residual clause, and in a manner that makes it easier to construe. United States
v. Taylor, 814 F.3d 340, 375‐76 (6th Cir. 2016) (rejecting the argument that
Johnson II “compels the conclusion” that the risk‐of‐force clause is void for
vagueness).
It is unsurprising, then, that the risk‐of‐force clause has no history of
“repeated attempts and repeated failures” on the part of courts “to craft a
principled and objective standard” out of its terms — the sort of doctrinal history
that Johnson II recognized was sufficient to “confirm [the] hopeless
indeterminacy” of the residual clause. 135 S. Ct. at 2558. The Court explained
in Johnson II that “the failure of ‘persistent efforts . . . to establish a standard’ can
provide evidence of vagueness.” Id. (alteration in original) (quoting United
States v. L. Cohen Grocery Co., 255 U.S. 81, 91 (1921)). But there is no such
30
troubled interpretive history with respect to the risk‐of‐force clause. As the
Sixth Circuit recently recognized, while “the Supreme Court reached its
void‐for‐vagueness conclusion only after struggling mightily for nine years to
come up with a coherent interpretation of the [residual] clause, . . . no such
history has occurred with respect to § 924(c)(3)(B).” Taylor, 814 F.3d at 376.
This, too, counts against Hill’s position.
Hill argues that Johnson II also relied in part on the fact that the ACCA’s
residual clause, like the risk‐of‐force clause, requires application of the
categorical approach, with its attendant difficulties in determining the
parameters of the “ordinary case” of a predicate crime. This is true. But we
conclude that this fact alone is not nearly enough to render the risk‐of‐force
clause void for vagueness. As the Sixth Circuit recognized in Taylor, the
Supreme Court in Johnson II did not conclude that statutes requiring such an
approach are thereby rendered unconstitutionally vague. 814 F.3d at 378.17 To
17 Hill argues that Taylor is distinguishable in that it relied on the fact that the
Sixth Circuit does not use a categorical approach “in many § 924(c) cases” in upholding
the risk‐of‐force clause. Hill’s July 28 Response to Gov’t’s 28(j) Letter at 2 n.1, United
States v. Hill, No. 14‐3872 (2d Cir. Aug. 2, 2016), ECF No. 112 (citing Shuti v. Lynch,
__ F.3d __, 2016 WL 3632539, at *8 (6th Cir. July 7, 2016)). The panel in Taylor explicitly
disclaimed any such reading of its opinion. See Taylor, 814 F.3d at 378 (noting that “[i]t
is true that Johnson [II] also relied in part on the fact that the ACCA residual clause, like
31
the contrary, the Court took pains to note that it was a combination of factors that
together rendered the residual clause invalid: “Each of the uncertainties in the
residual clause may be tolerable in isolation, but ‘their sum makes a task for us
which at best could be only guesswork.’” Johnson II, 135 S. Ct. at 2560 (quoting
Evans, 333 U.S. at 495). No such factors conspire to suggest that § 924(c)(3)(B) is
constitutionally infirm.
We note that four other circuits — the Fifth, Sixth, Seventh, and Ninth —
have considered the language in 18 U.S.C. § 16(b), which appears materially the
same as that in § 924(c)(3)(B), and have determined that § 16(b) is void for
vagueness after Johnson. Shuti v. Lynch, __ F.3d __, 2016 WL 3632539 (6th Cir.
July 7, 2016); United States v. Gonzalez‐Longoria, 813 F.3d 225, 227 (5th Cir. 2016),
en banc rehearing granted, 815 F.3d 189 (5th Cir. 2016) (mem.); United States v.
Vivas‐Ceja, 808 F.3d 719, 723 (7th Cir. 2015); Dimaya v. Lynch, 803 F.3d 1110, 1120
(9th Cir. 2015). Although we generally interpret § 16(b) and § 924(c) by
§ 924(c)(3)(B), requires the application of a categorical approach, which requires courts
to look at the ordinary case of the predicate crime” before concluding that this similarity
was insufficient to render the risk‐of‐force clause unconstitutionally vague (emphasis
added)); accord id. at 394 (White, J., concurring in part and dissenting in part) (stating
that the Sixth Circuit applies the categorical approach to the risk‐of‐force clause).
32
applying the same case law, see Acosta, 470 F.3d at 134‐35, we find these opinions
unpersuasive for three reasons.
First, each greatly underestimates — or misunderstands — the significance
of the list of enumerated offenses in the ACCA’s residual clause to the decision in
Johnson II, in part by failing to engage with the precedent that preceded, and
informed, that decision.18 Second, these cases either ignore or minimize the
other textual distinctions between the residual clause and the language of
§ 16(b).19 Finally, each case dismisses the significance of the Supreme Court’s
18 See Shuti, 2016 WL 3632539, at *7; Gonzalez‐Longoria, 813 F.3d at 232‐34 (though
acknowledging that § 16(b) is “arguably at least slightly less imprecise” than the
language in the ACCA’s residual clause, suggesting that “[a]rguably, having no
examples is worse than having unclear examples”); Vivas‐Ceja, 808 F.3d at 723 (observing
that “the enumeration of specific crimes . . . wasn’t one of the ‘two features’ that
combined to make the [residual] clause unconstitutionally vague,” and thus
misunderstanding that the list was a primary impetus for the second feature,
“indeterminacy about how much risk it takes for the crime to qualify as a violent
felony,” Johnson II, 135 S. Ct. at 2558); Dimaya, 803 F.3d at 1118 & n.13 (first minimizing
the significance of the enumerated offenses to Johnson II’s analysis, and then noting that
“[a]lthough Johnson [II] concluded that the enumerated offenses added to the residual
clauseʹs indeterminacy, it could well be argued that, if anything, § 16(b) is more vague
than the residual clause because of its lack of enumerated examples”).
19 See Shuti, 2016 WL 3632539, at *7; Gonzalez‐Longoria, 813 F.3d at 232
(acknowledging the textual differences, but arguing that they are “slight”); Vivas‐Ceja,
808 F.3d at 722 (noting that the “language [in § 16(b)], though not identical to the
residual clause, is materially the same”); Dimaya, 803 F.3d at 1114‐18 (referring to the
two textual provisions as “similar,” providing no analysis of the distinction between the
phrases “risk of physical injury” and “risk that physical force . . . may be used,” and
33
fraught precedent interpreting the ACCA’s residual clause, and in doing so not
only disregards the significance of that precedent to the Johnson II decision, see
135 S. Ct. at 2558‐61 (discussing these prior cases), but also fails to grapple with
the fact that the textual aspects unique to the residual clause were largely to
blame for that confusion. See Shuti, 2016 WL 3632539, at *8; Gonzalez‐Longoria,
813 F.3d at 234; Vivas‐Ceja, 808 F.3d at 723; Dimaya, 803 F.3d at 1119.
For these reasons, we do not find these § 16(b) cases persuasive, and we
decline to follow their reasoning here. Indeed, we conclude that to do so would
not apply Johnson II, but would extend it in a way flatly inconsistent with that
decision’s own articulation of the limitations of its holding. See 135 S. Ct. at
2561. Having considered each of Hill’s arguments that the risk‐of‐force clause is
unconstitutionally vague, we are unpersuaded.
CONCLUSION
For the foregoing reasons, and for those stated in the summary order that
accompanies this decision, we AFFIRM the judgment of conviction.
suggesting that any distinction created by the presence of the words “in the course of
committing the offense” in § 16(b) “would not save [that provision] from
unconstitutionality”).
34