United States Court of Appeals
For the First Circuit
No. 18-1129
UNITED STATES,
Appellee,
v.
ISHMAEL DOUGLAS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Jon D. Levy, U.S. District Judge]
Before
Lynch, Stahl, and Thompson,
Circuit Judges.
J. Hilary Billings on brief for appellant.
Benjamin M. Block, Assistant United States Attorney, and
Halsey B. Frank, United States Attorney, on brief for appellee.
October 12, 2018
LYNCH, Circuit Judge. This direct appeal after entry of
a guilty plea raises important questions under federal criminal
law, particularly whether it is appropriate to use the categorical
approach in determining what is a "crime of violence" under 18
U.S.C. § 924(c)(3)(b).
Ishmael Douglas entered a conditional plea of guilty to
charges of conspiracy to commit a Hobbs Act robbery, in violation
of 18 U.S.C. § 1951(a), and of using, carrying, or brandishing a
firearm in relation to a "crime of violence," in violation of 18
U.S.C. § 924(c)(1). Douglas now appeals the district court's
denial of his motion, before the plea, to dismiss a portion of the
latter charge, on the ground that the residual clause at 18 U.S.C.
§ 924(c)(3)(B) is unconstitutionally vague under Johnson v. United
States, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct.
1204 (2018). See United States v. Williams, 179 F. Supp. 3d 141
(D. Me. 2016). The district court did not reach this issue in
denying the motion. Id.
After de novo review, we conclude that § 924(c)(3)(B) is
not, as Douglas argues, void for vagueness. That is because the
statute reasonably allows for a case-specific approach,
considering real-world conduct, rather than a categorical
approach, and because Douglas's conspiracy to commit a Hobbs Act
robbery qualifies as a "crime of violence." We largely agree with
the reasoning of the Second Circuit in a similar case, United
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States v. Barrett, 903 F.3d 166 (2d Cir. 2018), save for one point,
and with the result and much of the reasoning in Ovalles v. United
States, No. 17-10172, 2018 WL 4830079 (11th Cir. Oct. 4, 2018) (en
banc). We affirm.
I. Background
A. Facts
We describe the background facts of the underlying
offense, accepted by both parties,1 because they are relevant to a
case-specific, real-world analysis of a "crime of violence" under
§ 924(c)(3)(b).
In August 2014, Douglas, along with Kourtney Williams,
Victor Lara, Jr., and Heidi Hutchinson, conspired to commit a home
invasion robbery in Minot, Maine. Williams, Lara, and Hutchinson
began planning the robbery on July 26; Douglas joined the
conspiracy on either August 1 or August 2.2 The conspirators
targeted the house of a person they believed to be engaged in
1 With one exception, discussed in footnote 2, Douglas
accepted the prosecution version of the facts in his brief. He
did not object to the facts in the revised Presentence Report.
2 At his change of plea hearing, Douglas told the district
court that he joined the conspiracy as the group was driving to
Minot on August 2, rather than the day before as the prosecution
claimed. However, mirroring the prosecution's assertion,
Douglas's own brief for this court states that he joined the
conspiracy on August 1. In any event, the precise date is not
relevant to our analysis, because it is settled that Douglas joined
the conspiracy before the armed robbery.
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illegal drug trafficking, in order to steal Percocet (oxycodone)
pills and proceeds from the drug trafficking.
On August 2, Hutchinson drove the other conspirators to
the targeted house in Minot and waited outside after dropping them
off. Lara, Williams, and Douglas, in partial disguise, entered
the house by breaking a glass sliding door. They yelled "get
down," "DEA," and "police." Williams carried a pistol; Lara had
a crowbar. Douglas found in a bedroom a 9-millimeter Beretta
handgun with an extended clip, which he took and brandished during
the robbery.
The conspirators found three men inside the house, whom
they tried to secure by placing zip ties around the men's hands.3
But the zip ties were not large enough for the task.
Lara assaulted the three men with a crowbar. First,
Lara beat and bloodied one man, striking him in the back,
shoulders, and head with a crowbar because he did not look away
from the conspirators when told to do so. Lara later beat him
again with a crowbar when he said that he did not know the
combination to a safe in the house. Lara beat a second man in the
back, shoulders, arms, and thighs with a crowbar after he was found
hiding under a futon. Lara also beat the third man in the face,
legs, and back.
3 The government refers to all victims here as male
regardless of gender, and we will do the same.
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Douglas and Williams also threatened the three men
several times with firearms. The conspirators demanded that the
men, at gunpoint, give them "the shit" and the combination to the
safe. Douglas also forced the first man to the garage, with
Douglas holding his hand on the man's neck and pressing a gun to
his head. After the man stated that there was nothing in the
garage, Lara told Douglas to shoot him, but Douglas did not do so.
One of the conspirators also dragged that man down a hallway,
holding him in a headlock.
After unsuccessfully searching the house for oxycodone
and money, Williams and Lara then forced two of the men outside at
gunpoint. The first man -- believing he was about to be shot --
fled to a neighbor's house. He saw the conspirators run to
Hutchinson in the waiting SUV and drive away. The third man
escaped and called the police from another neighbor's house.
The conspirators did not find any pills or proceeds.
They did steal a video game console, six to eight ounces of
marijuana, and the Beretta pistol that Douglas had found, taken,
and brandished during the robbery. Police, acting with a search
warrant for the house, found the crowbar and zip ties used in the
robbery. DEA agents later found items at the house that the
conspirators had unsuccessfully sought: 147 fifteen-milligram and
504 thirty-milligram oxycodone pills, 376 grams of powder cocaine,
thirty-three pounds of marijuana, and more than $6,000 in cash.
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Later, pursuant to a warrant, the police searched a storage unit
used by the conspirators and found the two guns brandished in the
robbery.
B. Procedural History
On April 7, 2015, Douglas was charged with four counts
of a seven count indictment: conspiracy to possess with intent to
distribute oxycodone, in violation of 21 U.S.C. § 846 (Count One);
conspiracy to commit a Hobbs Act robbery, in violation of 18 U.S.C.
§ 1951(a) (Count Two); possession of a firearm as a convicted
felon, in violation of 18 U.S.C. § 922(g)(1) (Count Five); and
knowingly using, carrying, and brandishing a firearm during a crime
of violence, in violation of 18 U.S.C. § 924(c)(1) (Count Six).
Douglas moved to dismiss the portion of Count Six
containing "the allegation that he knowingly used, carried, and
brandished a firearm during and in relation to a crime of
violence." In effect, he claimed that a conspiracy to commit a
Hobbs Act robbery does not qualify as a "crime of violence" under
18 U.S.C. § 924(c).
The district court denied this motion in an order issued
on April 15, 2016. Williams, 179 F. Supp. 3d at 155. Taking a
categorical approach to the "force clause"4 at § 924(c)(3)(A), the
4 Some courts instead refer to this clause as the "elements
clause." See, e.g., United States v. Armour, 840 F.3d 904, 907
(7th Cir. 2016).
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district court determined that "a conspiracy to commit a Hobbs Act
robbery may serve as a predicate 'crime of violence' under the
'force clause.'" Id. The district court did not reach Douglas's
argument that § 924(c)(3)(B), the residual clause,5 is void for
vagueness in light of Johnson. Id.
Douglas then entered a conditional guilty plea to Counts
Two and Six, reserving his right to appeal the district court's
denial of the motion to dismiss a portion of Count Six. At the
Rule 11 hearing, Douglas affirmed that he understood the basis for
the charges. Defense counsel acknowledged that the "admissible
part of the evidence would permit a properly instructed jury to
determine beyond a reasonable doubt" that Douglas had committed
the charged offenses.
The district court sentenced Douglas to 108 months'
imprisonment: twenty-four months on Count Two and eighty-four
months on Count Six, to be served consecutively. Douglas appealed
the denial of his motion to dismiss.
II. Discussion
We address three substantive issues. First, we consider
Douglas's assertion that the government has waived its key argument
on appeal that the use of the term "crime of violence" in
5 Some courts instead refer to this clause as the "risk-
of-force clause." See, e.g., United States v. St. Hubert, 883
F.3d 1319, 1320 (11th Cir. 2018).
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§ 924(c)(3)(B) allows for a case-specific rather than a
categorical approach, by not asserting it in the district court.6
The government acknowledges it made a concession, but argues it
was not a waiver. Second, we reach the merits of Douglas's
argument that, under Johnson and Dimaya, the residual clause at
§ 924(c)(3)(B) is void for vagueness. The government does not
defend the district court's alternate rationale or contend that
the conspiracy charged would qualify as a "crime of violence" under
the force clause at § 924(c)(3)(A), so we do not address this
point.7 Third, because we find that § 924(c)(3)(B) is not void
for vagueness, we consider -- by a case-specific, real-world
approach -- whether Douglas's particular conspiracy to commit a
Hobbs Act robbery qualifies as a "crime of violence" under the
residual clause. We affirm the denial of the motion to dismiss.
We review de novo the denial of Douglas's motion to
dismiss a portion of Count Six of his indictment, as Douglas's
appeal challenges the constitutionality of a federal statute. See,
6 As discussed later, a categorical or modified
categorical approach considers an "idealized ordinary case" of the
crime charged; a case-specific approach considers a defendant's
"real-world conduct." Johnson, 135 S. Ct. at 2557-58.
7 The government explicitly "does not adopt the district
court’s holding that conspiracy to commit Hobbs Act robbery
constitutes a crime of violence under the force clause . . . .
[T]he Department of Justice's position is that a conspiracy offense
does not have 'as an element the use, attempted use, or threatened
use of physical force against the person or property of another.'"
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e.g., United States v. Hussein, 351 F.3d 9, 14 (1st Cir. 2003).
And we also review de novo the proper understanding and application
of "crime of violence" in the residual clause. See, e.g., United
States v. Turner, 501 F.3d 59, 67 (1st Cir. 2007).
A. Concession and Waiver
We turn to the intertwined issues of concession and
waiver. At the district court proceedings, which occurred before
the Supreme Court's decision in Dimaya, the government
acknowledged that § 924(c)(3)(B) "involves a risk-based analysis
of the 'ordinary case' of a predicate offense." Douglas argues,
albeit solely in his reply brief, that the government has therefore
waived its argument that § 924(c)(3)(B) allows for a case-
specific, real-world approach rather than a categorical approach.
The government asserts that its acknowledgement of the categorical
approach in the district court should be viewed at most as a
concession made for purposes of argument. Admittedly, the line
between waiver and concession is a hazy one. See, e.g., United
States v. Torres-Rosario, 658 F.3d 110, 116 (1st Cir. 2011)
("Courts are not always consistent in their use of the term waiver
. . . . [A]n explicit concession can waive both existing and yet-
to-be-recognized rights." (emphasis in original)). Whether the
government's acknowledgment in the district court is best viewed
as a concession or a waiver, the situation here -- where an
intervening Supreme Court case, Dimaya, has shifted the relevant
- 9 -
legal landscape -- leads us to conclude that we should review the
substantive issue.
The law is clear that a "concession by either party in
a criminal case as to a legal conclusion is not binding on an
appellate court." United States v. Sanchez-Berrios, 424 F.3d 65,
81 (1st Cir. 2005); accord United States v. Borrero-Acevedo, 533
F.3d 11, 15 n.3 (1st Cir. 2008). There are at least three
"pertinent considerations" in determining whether we should
address an earlier concession by a party:
1) whether the issue is recurrent so that
decision would give guidance to the district
courts, 2) whether it would be unseemly to
accept, even arguendo, a mistaken legal
proposition and reason from it to decide the
case, and 3) whether the issues are technical
and complex and not explored carefully in
existing decisions so that adversary briefing
would be critical.
United States v. Mescual-Cruz, 387 F.3d 1, 8 n.2 (1st Cir. 2004).
Each consideration leads us to bypass the so-called concession and
reach the merits. Indeed, the opinion in Dimaya alone would lead
us to this same conclusion.
First, this is a recurring issue. Section 924(c)(3)(B)
has come up numerous times in district courts in this circuit, and
in several cases in the past few months alone.8 A determination
8 At least three district court cases in this circuit have
considered § 924(c)(3)(B) in light of the Supreme Court's decision
in Dimaya. See LiCausi v. United States, No. 16-CV-279-JD, 2018
WL 4054905, at *3 (D.N.H. Aug. 23, 2018) (holding that
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on the substantive issues in this appeal would provide guidance to
district courts in this unsettled area of law. Second, it would
be "unseemly" to hold the government to its earlier position when
an intervening Supreme Court case, Dimaya, substantially changed
this area of law. Third, the proper approach to the residual
clause at § 924(c)(3)(B) is a technical issue that has arisen in
current form only after Dimaya, and merits our serious evaluation.
In the interests of completeness, we also address, and
reject, Douglas's waiver argument. Waiver raises similar
considerations as concession. Waiver is usually "treated as an
'intentional,' and therefore permanent, abandonment of a
position." Torres-Rosario, 658 F.3d at 115.9
"§ 924(c)(3)(B) is unconstitutionally vague"); United States v.
Rossetti, No. CR 99-10098-RGS, 2018 WL 3748161, at *3 (D. Mass.
Aug. 7, 2018) (same); Soto-Cosme v. United States, 320 F. Supp. 3d
350, 353 (D.P.R. 2018) (noting, but avoiding, the "void-for-
vagueness" challenge).
9 Waiver doctrine can be applied against any party: "in
fairness, what is sauce for the defendant's goose is sauce for the
government's gander." United States v. Caraballo-Cruz, 52 F.3d
390, 393 (1st Cir. 1995). Waiver doctrine, therefore, "has been
applied against the government in criminal cases, where
appropriate." United States v. Carrasco-De-Jesus, 589 F.3d 22, 26
(1st Cir. 2009). Though we are under no obligation "to do the
government's homework," United States v. Vega Molina, 407 F.3d
511, 524 (1st Cir. 2005), "we have discretion to overlook waiver
by the government in a criminal case when circumstances justify us
in doing so." Carrasco-De-Jesus, 589 F.3d at 26 n.1; see generally
Torres-Rosario, 658 F.3d at 116; United States v. Moran, 393 F.3d
1, 11 (1st Cir. 2004).
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We do not think there was an intentional abandonment by
the government, and so there was no waiver.10 Regardless, we would
in any event choose to reach the issues, and we do not "religiously
hold[] waiver against the Government" when fairness dictates
otherwise. Dimott v. United States, 881 F.3d 232, 239 (1st Cir.
2018) (quotation marks omitted). There is no unfairness in
reaching the merits argument but there would be in not reaching
it. This is not a case where the government seeks the proverbial
second bite at the apple due to lack of due diligence or "any
gamesmanship before the district court." Id. Nor is it one where
"a prosecutor attempts to rely on fleeting references to
unsubstantiated conclusions." Caraballo-Cruz, 52 F.3d at 393.
The government has been forthright about its changed position and
the reasons underlying this change.
Our view is consistent with that of several of our sister
circuits. The Second Circuit recently considered the government's
changed position regarding a case-specific, real-world approach,
and held that the residual clause allowed for this approach.
10 Further, Douglas has likely waived his own argument on
the issue of the government's waiver, by not mentioning this
somewhere in his primary brief but only in his reply brief.
"[A]rguments developed for the first time in a reply brief are
waived." Small Justice LLC v. Xcentric Ventures LLC, 873 F.3d
313, 323 n.11 (1st Cir. 2017); accord Transupport, Inc. v. Comm'r
of Internal Revenue, 882 F.3d 274, 281 n.4 (1st Cir. 2018); Irving
Tanning Co. v. Kaplan, 876 F.3d 384, 392 n.7 (1st Cir. 2017).
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Barrett, 903 F.3d at 184.11 The Eleventh Circuit, en banc, also
considered the government's new position and held 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." Ovalles, No. 17-10172, 2018 WL 4830079, at
*2. And the D.C. Circuit and Fifth Circuit both indicated that
only circuit precedent vitiated the need for consideration of the
government's argument on a case-specific, real-world approach.
United States v. Eshetu, 898 F.3d 36, 37 (D.C. Cir. 2018) (per
curiam) ("Whatever the clean-slate merits of the government's
construction, we as a panel are not at liberty to adopt [a case-
specific approach]: circuit precedent demands a categorical
approach . . . ."); United States v. Davis, 903 F.3d 483, 485 (5th
Cir. 2018) ("[T]he Government argues we can, and should, adopt a
new 'case specific' method when applying the residual clause
. . . . Regardless of whether Dimaya would otherwise permit us to
do so, we do not find a suggestion by a minority of justices in
that case sufficient to overrule our prior precedent.").
11The government's supplemental brief in Barrett made
similar arguments to the government's brief here, as did the
government's en banc brief in Ovalles.
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B. The Merits of a Case-Specific Approach versus a Categorical
Approach to § 924(c)(3)(B)
Douglas asserts that the residual clause at
§ 924(c)(3)(B) is void for vagueness under the reasoning of Johnson
and Dimaya. In relevant part, this clause reads:
(3) For purposes of this subsection the term
"crime of violence" means an offense that
is a felony and— . . .
(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)(B).
After laying out pertinent Supreme Court precedent, we
consider the text of § 924(c)(3)(B). We find that the text of
§ 924(c)(3)(B) can and should be reasonably construed as allowing
a case-specific approach. We next consider the statute's context.
Because § 924(c)(3)(B) requires consideration of a contemporaneous
offense rather than a prior conviction, this residual clause does
not raise either the practical or the Sixth Amendment right-to-
trial concerns that led the Supreme Court to adopt the categorical
approach in Taylor v. United States, 495 U.S. 575 (1990). See
also Descamps v. United States, 570 U.S. 254 (2013); James v.
United States, 550 U.S. 192 (2007). We then consider
constitutional avoidance, because, if we were to apply a
categorical approach, there could be vagueness problems.
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Unlike some other circuits, our circuit has not held
definitively that either the categorical or the case-specific
approach applies to the residual clause at § 924(c)(3)(B).12 And
so we have no binding precedent. In Turner, we held without direct
reference to a categorical or case-specific approach that
conspiracy to commit a Hobbs Act robbery was a crime of violence
under § 924(c)(3)(B). Turner, 501 F.3d at 67. The law of the
circuit rule -- under which "we are bound by a prior panel
decision, absent any intervening authority," United States v.
Grupee, 682 F.3d 143, 149 (1st Cir. 2012) -- does not bind us
here.13 See San Juan Cable LLC v. Puerto Rico Tel. Co., 612 F.3d
25, 33 (1st Cir. 2010); United States v. Malouf, 466 F.3d 21, 26-
27 (1st Cir. 2006).
i. Supreme Court Precedent
The Supreme Court first required that the "categorical
approach" be used to make a determination about a prior state
12 By contrast, we have held in several cases that a
categorical approach properly applies to the force clause at
§ 924(c)(3)(A). United States v. Cruz-Rivera, No. 16-1321, 2018
WL 4378173, at *1 (1st Cir. Sept. 14, 2018); United States v.
Taylor, 848 F.3d 476, 491 (1st Cir. 2017).
13 It is true that some district courts in our circuit have
held, or assumed, that the categorical approach applies. See,
e.g., Rossetti, No. CR 99-10098-RGS, 2018 WL 3748161, at *2 ("The
government’s position until recently has been that § 924(c)(3)(B)
requires a categorical approach — a conclusion that . . . the First
Circuit has never definitively held but that the lower district
courts had regularly assumed to be the case."). But of course,
such decisions are not precedent for this court.
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conviction in Taylor, 495 U.S. at 602, which turned on the proper
understanding of the definition of burglary in the Armed Career
Criminal Act (ACCA), in a portion of the statute used to enhance
sentences for prior offenses.14 The Court concluded that ACCA
referred to "burglary" in a general sense and therefore required
a trial court "to look only to the fact of conviction and the
statutory definition of the prior offense." Id. In justifying
this, the Court especially worried about the "practical
difficulties" of a case-specific analysis for prior convictions.
It also was concerned with possibly "abridging [the Sixth
Amendment] right to a jury trial." Id. at 601. The Court extended
the categorical approach to the residual clause of ACCA in James,
and significantly added the "ordinary case" component to the
categorical analysis. 550 U.S. at 208 ("[T]he proper inquiry is
whether the conduct encompassed by the elements of the offense, in
14 The definition at issue in the case was this:
(B) the term "violent felony" means any
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.
18 U.S.C. § 924(e)(2)(B).
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the ordinary case, presents a serious potential risk of injury to
another.").
In Johnson, which overruled James, the Supreme Court
held that the definition of "violent felony" in the residual clause
of ACCA was unconstitutionally vague. 135 S. Ct. at 2555-57.
ACCA's residual clause defined a violent felony, in part, as a
felony that "involves conduct that presents a serious potential
risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii).
The Court held that "[t]wo features of the residual
clause conspire[d] to make it unconstitutionally vague." Johnson,
135 S. Ct. at 2557. First, "the residual clause leaves grave
uncertainty about how to estimate the risk posed by a crime,"
because the categorical approach "ties the judicial assessment of
risk to a judicially imagined 'ordinary case' of a crime, not to
real-world facts or statutory elements." Id. The Court noted
"how speculative (and how detached from statutory elements)"
considering an "idealized ordinary case of a crime" can become.
Id. at 2557-58. Second, "the residual clause leaves uncertainty
about how much risk it takes for a crime to qualify as a violent
felony." Id. at 2558. And "[b]y 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, the residual clause produces more unpredictability and
arbitrariness than the Due Process Clause tolerates." Id.
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In Dimaya, an alien challenged a deportation order based
on a state conviction for first-degree burglary, which immigration
officials found was a "crime of violence" under the federal
criminal code's residual clause at 18 U.S.C. § 16(b), explicitly
incorporated by Congress into the Immigration and Nationality Act.
8 U.S.C. § 1101(a)(43)(F). In relevant part, this residual clause
defined "crime of violence" using the same language as
§ 924(c)(3)(B): a "crime of violence" is a felony "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. § 16(b). The government had
conceded that the categorical approach applied. Dimaya, 138 S.
Ct. 1204, 1217 (2018).
The Supreme Court determined that the "straightforward
application" of Johnson dictated the result in Dimaya. Id. at
1213. The same two features -- an "ordinary case" analysis and
uncertainty about the sufficient degree of risk -- combined in
"the same constitutionally problematic way" to make the residual
clause impermissibly vague. Id.
The Supreme Court majority in Dimaya also referenced the
Sixth Amendment right-to-trial concerns that led to the initial
adoption of the categorical approach in Taylor. See Dimaya, 138
S. Ct. at 1217 (noting that the Supreme Court required a
categorical approach "in part to avoid . . . Sixth Amendment
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concerns" (quotation marks and citation omitted)). In dissent,
Justice Thomas, joined by Justices Kennedy and Alito, pointed out
that the "categorical approach was never really about the best
reading of the text." Id. at 1256 (Thomas, J., with Kennedy,
Alito, JJ., dissenting). Justice Thomas suggested, instead, that
the "Court adopted that approach to avoid a potential Sixth
Amendment problem with sentencing judges conducting minitrials to
determine a defendant's past conduct." Id. So all justices in
Dimaya recognized that the categorical approach was adopted at
least in part to avoid potential Sixth Amendment problems about
how to characterize prior convictions.15
Importantly, in both Dimaya and Johnson, the Supreme
Court dismissed the notion that uncertainty as to risk evaluation
of what constitutes a crime of violence was a problem by itself:
"[W]e do not doubt the constitutionality of laws that call for the
application of a qualitative standard such as 'substantial risk'
to real-world conduct; the law is full of instances where a man's
15 We are aware that the Supreme Court has granted
certiorari, vacated judgment, and remanded for further
consideration in light of Dimaya in several cases involving
convictions under § 924(c)(3)(B). See United States v. Odum, 878
F.3d 508 (6th Cir. 2017), cert. granted, judgment vacated sub nom.
Frazier v. United States, No. 17-8381, 2018 WL 1640324 (U.S. Oct.
9, 2018); Manners v. United States, No. 17-1171, 2017 WL 3613308
(6th Cir. Aug. 22, 2017), cert. granted, judgment vacated, No. 17-
8035, 2018 WL 1278398 (U.S. Oct. 1, 2018); United States v.
Jackson, 865 F.3d 946 (7th Cir. 2017), cert. granted, judgment
vacated, 138 S. Ct. 1983 (May 14, 2018). This does not change our
analysis here.
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fate depends on his estimating rightly . . . some matter of
degree[.]" Dimaya, 138 S. Ct. at 1214 (quoting Johnson, 135 S.
Ct. at 2561) (brackets and ellipsis in original).
ii. The Text of § 924(c)(3)(B)
Douglas argues that § 924(c)(3)(B)'s text unambiguously
requires a categorical, ordinary-case approach. We disagree, and
find that statutory language allows for a case-specific approach.
When determining the meaning of a statutory provision
that is not defined in the statute, "we look first to its language,
giving the words used their ordinary meaning." Moskal v. United
States, 498 U.S. 103, 108 (1990) (quotation marks and citation
omitted); see In re Hill, 562 F.3d 29, 32 (1st Cir. 2009) ("We
assume that the words Congress chose, if not specially defined,
carry their plain and ordinary meaning.").
Douglas argues that the "by its nature" language
requires a categorical approach. The word "nature" is not defined
in the statute. In ordinary use, "nature" means a "normal and
characteristic quality," Webster’s Third New International
Dictionary 1507 (2002), or "the basic or inherent features,
character, or qualities of something," Oxford Dictionary of
English 1183 (3d ed. 2010). In the context of applying
§ 924(c)(3)(B), this "something" clearly must refer to the
predicate offense charged. But these straightforward dictionary
definitions do not answer the key question here: whether the
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offense whose "basic or inherent features, character, or
qualities" are considered is the particular real-world conduct of
the predicate offense charged or, instead, an "ordinary,"
idealized, or generic example of that same offense. See Barrett,
903 F.3d at 182. As the Supreme Court has noted, "in ordinary
speech words such as 'crime,' 'felony,' 'offense,' and the like
sometimes refer to a generic crime . . . and sometimes refer to
the specific acts in which an offender engaged on a specific
occasion." Nijhawan v. Holder, 557 U.S. 29, 33–34 (2009); see
Mathis v. United States, 136 S. Ct. 2243, 2252 (2016) (noting that
language like "offense . . . committed" indicated Congress's intent
that "judges . . . look into the facts of prior crimes"); United
States v. Hayes, 555 U.S. 415, 426 (2009) (holding that a statute
with the phrase "offense . . . committed by a current or former
spouse" allowed for case-specific consideration).
Furthermore, although Douglas does not raise this issue,
the government also points out that the term "involves" in the
residual clause is used in several provisions in the Comprehensive
Crime Control Act of 1984 that require looking into a defendant's
underlying conduct rather than a hypothetical or idealized
offense. See, e.g., Pub. L. No. 98-473, § 4243, 98 Stat. 1837,
2059 (Oct. 12, 1984) (changing the requisite burden of proof for
the release of "a person found not guilty only by reason of
insanity of an offense involving bodily injury to, or serious
- 21 -
damage to the property of, another person, or involving a
substantial risk of such injury or damage" (emphasis added)); id.
at § 502, 98 Stat. 2068 (setting sentences for drug offenses
"involving" specific types and quantities of illegal drugs).
"Involves," by itself, does not necessarily suggest either a
categorical or a case-specific approach. As to § 924(c)(3)(B), it
is plausible that "by its nature" refers to the real-world conduct
of a particular offense, and that "involves" also refers to that
same conduct. See Ovalles, 17-10172, 2018 WL 4830079, at *14
("[W]e simply aren't convinced that the phrase 'by its nature'
requires application of the categorical approach here.")
Douglas asserts that this textual understanding is
foreclosed by the Supreme Court's interpretation of the nearly
identically worded provision in Dimaya, where the plurality
required a categorical approach. In his reply brief, Douglas
argues that Justice Gorsuch, in a concurrence, "acknowledged that
the categorical approach was appropriately employed," so,
according to Douglas, this approach is therefore required for
§ 924(c)(3)(B). This is incorrect on both counts.
A four-justice plurality suggested in Dimaya that the
text of § 16(b) was "[b]est read" as "demand[ing] a categorical
approach." 138 S. Ct. at 1217. Even assuming for the sake of
argument that this statement applies to the distinct context of
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§ 924(c)(3)(B),16 there was no holding by a majority of the court
that a categorical approach was required by the text of this
provision. And the Supreme Court has held in several cases that
"[w]hen a fragmented Court decides a case and no single rationale
explaining the result enjoys the assent of five justices, 'the
holding of the Court may be viewed as that position taken by those
Members who concurred in the judgment on the narrowest grounds.'"
Marks v. United States, 430 U.S. 188, 193 (1977) (quoting Gregg v.
Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion of Stewart, Powell,
and Stevens, JJ)).
Justice Gorsuch, who concurred and was the narrowest
vote in the majority,
proceeded on the premise that the Immigration
and Nationality Act, as it incorporates
§ 16(b) of the criminal code, commands courts
to determine the risk of violence attending
the ordinary case of conviction for a
particular crime . . . because no party before
us has argued for a different way to read these
statutes in combination; because our precedent
seemingly requires this approach; and because
the government itself has conceded
(repeatedly) that the law compels it.
16 The plurality said nothing about § 924(c)(3)(B) in
Dimaya. Nor do we assume that similar text across the United
States code must always be interpreted in exactly the same way:
context and commensurate congressional intent matter. There are
clearly exceptions to any presumption that Congress uses the same
term or language in precisely the same way across different
statutes. As will be discussed, the general definition in § 16(b)
is contextually distinct from § 924(c)(3)(B).
- 23 -
Dimaya, 138 S. Ct. at 1232 (Gorsuch, J., concurring in part and
concurring in judgment). Justice Gorsuch then suggested a
willingness to consider, "in another case," the textual question
of whether "precedent and the proper reading of language" meant
that the categorical approach, or another approach, must apply.
Id. at 1233. While Justice Gorsuch accepted the government's
concession in Dimaya and noted the lack of "adversarial testing"
or briefing of an alternative approach in that case, id. at 1232,
he did not determine that the text of § 16(b) required a
categorical approach. And he certainly did not determine anything
about the text of the contextually distinct § 924(c)(3)(B).
When the plurality dismissed the possible application of
the case-specific approach to § 16(b), these justices had already
stated that taking a case-specific approach would create "Sixth
Amendment concerns." Id. at 1217 (quoting Descamps, 570 U.S. at
267). But for § 924(c)(3)(B), Sixth Amendment concerns around the
right to trial do not arise because a contemporaneous offense
rather than a prior conviction is considered. Thus, when
considering the text of § 16(b), the plurality opinion addressed
a constitutional context distinct from this case. And as noted,
the government had already conceded that the categorical approach
applied. Douglas's textual argument is unavailing.
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iii. The Context of § 924(c)(3)(B)
We turn now to the context of § 924(c)(3)(B). As a
preliminary matter, nothing from Congress suggests a preference
for applying the categorical approach to § 924(c)(3)(B). Indeed,
this residual clause, in exactly the same language as today, was
in place before the Supreme Court applied the categorical approach
for the first time in 1990. 18 U.S.C. § 924(e)(2012); Taylor, 495
U.S. 575. Thus, Congress could not have demonstrated a preference
for a judicial approach that did not yet exist when the statute
was passed. Instead, the application of the categorical approach
to aspects of federal recidivist criminal statutes is a judicial
construct designed to avoid constitutional and practical concerns
raised by particular context, rather than a choice dictated by
Congress.
The context of § 924(c)(3)(B) clearly distinguishes it
from the textually similar provisions at issue in Dimaya and
Johnson. The Supreme Court in Dimaya and Johnson dealt with
statutes requiring judicial consideration of prior convictions in
subsequent proceedings. In contrast, § 924(c)(3)(B) applies only
to a predicate offense of a pending § 924(c)(1)(A) charge, meaning
that the predicate offense and the § 924(c)(3)(B) enhancement are
considered at the same time. The Supreme Court has not yet applied
the categorical approach to a residual clause that "defines a
predicate offense for a crime of pending prosecution," Barrett,
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903 F.3d at 181, rather than to a residual clause that defines a
qualifying predicate offense based on a prior conviction.
This is a crucial distinction. At its core, the
categorical approach is a thoughtful judicial construct designed
for a particular context: the judicial consideration, under
federal statutes, of prior convictions, often by different
tribunals. As discussed, the Supreme Court fashioned and refined
the categorical approach both for practical and constitutional
reasons that are specific to the consideration of a prior
conviction. See, e.g., Taylor, 495 U.S. at 601 (noting the
"practical difficulties and potential unfairness of a factual
approach" when considering a prior conviction). Despite Douglas's
argument to the contrary, these reasons for the categorical
approach do not exist in the distinct context of § 924(c)(3)(B).
As to practical issues, the situation under
§ 924(c)(3)(B) is different from one in which a court must consider
prior convictions "adjudicated by different courts in proceedings
that occurred long before the defendant's [present] sentencing."
United States v. Robinson, 844 F.3d 137, 142 (3d Cir. 2016). For
the prior conviction, the earlier court did not have to determine,
in finding guilt, whether the offense constituted a crime of
violence unless the particular statute happened to require it. In
addition, a prior conviction could not only be from a different
tribunal, but could be from many years ago. As an illustrative
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example, in the Supreme Court's initial adoption of the categorical
approach in Taylor, the underlying prior convictions had been
adjudicated in state courts in Missouri in 1963 and 1971, whereas
the defendant's guilty plea to the federal case was in 1988. 495
U.S. at 578 & n.1. Such an inquiry clearly can be fraught with
uncertainty, and may even involve some degree of implicit second-
guessing of prior convictions by other tribunals. But this issue
simply does not arise when considering a contemporaneous offense
as in § 924(c)(3)(B).
The application of § 924(c)(3)(B) to the real-world
conduct described in a pending charge means that the facts
concerning the relevant predicate crime (and whether that amounts
to a crime of violence) will be in front of a jury, if a case goes
to trial, or will be accepted by a defendant like Douglas in a
plea agreement. See Ovalles, No. 17-10172, 2018 WL 4830079, at
*14 (noting "[t]he 'utter impracticability' that Taylor, Johnson,
and Dimaya identified . . . simply isn’t an issue" because "the
crimes are typically (as here) charged in the same indictment, and
if they are tried, they are considered by the same jury."); St.
Hubert, 883 F.3d at 1335 (noting that in § 924(c) cases, there
will be "a contemporaneous federal crime charged in the same
indictment and . . . an already developed factual record").
Consideration of the facts underlying a pending charge steers clear
of the Supreme Court's understandable concern about prior
- 27 -
convictions with the "impracticability of requiring a sentencing
court to reconstruct, long after the original conviction, the
conduct underlying that conviction." Johnson, 135 S. Ct. at 2562;
see Dimaya, 138 S. Ct. at 1218.
Douglas argues further that a case-specific approach
would be unworkable and, in his words, lead to "absurd results."
However, Douglas provides no evidence of such a problem. Courts
around the country have succeeded at this task in the sentencing
context. Numerous federal criminal laws, like § 924(c)(3)(B),
"require gauging the riskiness of conduct in which an individual
defendant engages on a particular occasion." Johnson, 135 S. Ct.
at 2561; see Dimaya, 138 S. Ct. at 1215 ("[T]he point is not that
such a non-numeric standard [like substantial risk] is alone
problematic."). On the whole, it is at least as practical to allow
a jury to parse carefully between crimes based on specific real-
world conduct rather than, under a categorical approach, to force
judges to be willfully blind to particular facts and thus to go
"down the rabbit hole . . . to a realm where we must close our
eyes as judges to what we know as men and women." United States
v. Davis, 875 F.3d 592, 595 (11th Cir. 2017).
The Supreme Court has suggested that such a fact-
specific approach, "deal[ing] with the actual, not with an
imaginary condition other than the facts," can create more
predictability that less fact-bound inquires. Johnson, 135 S. Ct.
- 28 -
at 2561 (quoting Int'l Harvester Co. of Am. v. Kentucky, 234 U.S.
216, 223 (1914)). Juries have the ability to evaluate and
understand real-world conduct. And in § 924(c)(3)(B), there is no
link of the "substantial risk" language to a "confusing list of
examples," id., nor is there any other particularly confusing
factor distinguishing § 924(c)(3)(B) from other laws that require
juries to consider real-world conduct.
Beyond these practical distinctions, the difference
between evaluating a prior conviction and evaluating an alleged
predicate crime charged contemporaneously in the same indictment
is important with regard to the Sixth Amendment right-to-trial
concerns that motivated the categorical approach. In Dimaya, a
plurality suggested that taking a case-specific approach to § 16(b)
would "merely ping-pong us from one constitutional issue to
another," because the categorical approach was imposed in part to
"avoid[] the Sixth Amendment concerns that would arise from
sentencing courts' making findings of fact that properly belong to
juries." Dimaya, 138 S. Ct. at 1217 (quoting Descamps, 570 U.S.
at 267); see Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)
(holding that "any fact that increases the penalty for a crime
beyond the . . . statutory maximum must be submitted to a jury").
Here, because the residual clause at § 924(c)(3)(B)
requires a consideration of a contemporaneous predicate offense
rather than a past conviction, the finding of fact would be made
- 29 -
by a jury (or stipulated in a plea agreement), thus raising no
Sixth Amendment problem. See Ovalles, No. 17-10172, 2018 WL
4830079, at *15 (noting no Sixth Amendment issues when taking a
conduct-specific approach to § 924(c)). A defendant like Douglas
has the chance to contest the relevant facts either at trial or in
plea negotiations. If for whatever reason a defendant cannot or
will not accept the prosecution's version of the facts, either in
whole in or part, he or she maintains the constitutional right to
contest these facts at trial in front of a jury. By considering
a contemporaneous offense, then, a "defendant suffers no prejudice
because the court is not finding any new facts which are not of
record in the case before it." Robinson, 844 F.3d at 143. Here,
the district court had the relevant facts concerning all charges
against Douglas, and Douglas had the right to contest them as he
saw fit.
iv. Constitutional Avoidance
If we were to take a categorical approach to
§ 924(c)(3)(B), there could be constitutional problems of
vagueness after Dimaya, given that this approach would layer the
two features at issue in Johnson and Dimaya in the same problematic
way. The principle of constitutional avoidance further supports
our determination that a case-specific, real-world approach
applies to § 924(c)(3)(B).
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Constitutional avoidance is an "interpretive tool . . .
counseling that ambiguous statutory language be construed to avoid
serious constitutional doubts." F.C.C. v. Fox Television
Stations, Inc., 556 U.S. 502, 516 (2009). Under this principle,
the "elementary rule is that every reasonable construction must be
resorted to, in order to save a statute from unconstitutionality."
Skilling v. United States, 561 U.S. 358, 406 (2010) (quotation
marks and emphasis omitted); see Jennings v. Rodriguez, 138 S. Ct.
830, 836 (2018) ("[W]hen statutory language is susceptible of
multiple interpretations, a court may shun an interpretation that
raises serious constitutional doubts and instead may adopt an
alternative that avoids those problems.").
Importantly, a court must start its inquiry with normal
analysis: the canon "comes into play only when, after the
application of ordinary textual analysis, the statute is found to
be susceptible of more than one construction." Clark v. Martinez,
543 U.S. 371, 385 (2005); see United States v. Oakland Cannabis
Buyers' Cooperative, 532 U.S. 483, 494 (2001) (holding that this
canon "has no application in the absence of . . . ambiguity").
The chosen interpretation must be "plausible." Clark, 543 U.S. at
381; see Jennings, 138 S. Ct. at 842 (holding that the Ninth
Circuit "misapplied the [constitutional avoidance] canon . . .
because its interpretations of the three provisions at issue here
are implausible").
- 31 -
As discussed, there is a clearly "plausible"
interpretation here that does not raise potential vagueness
problems: a case-specific approach, looking at a defendant's
actual conduct in determining whether a "crime of violence" has
been committed. Taking this approach avoids constitutional
problems and, in turn, provides due respect to Congress, in
presuming that Congress does not intend to craft unconstitutional
laws. See Diop v. ICE/Homeland Sec., 656 F.3d 221, 231 (3d Cir.
2011).
To be clear, we are not creating any new rule of
constitutional law here. Nor are we saying that Dimaya compels
the result in this case. Instead, we are simply noting that taking
the categorical approach to this statute might create
constitutional problems. Therefore, interpreting the provision in
another plausible way after ordinary textual analysis obviates
this issue.
C. Douglas's Conspiracy as a "Crime of Violence" Under
§ 924(c)(3)(B)
Finally, we turn to whether Douglas's conspiracy -- when
considering the "real-world conduct", Johnson, 135 S. Ct. at 2561
-- qualifies as a crime of violence under § 924(c)(3)(B). We hold
that it does.
To be clear, we do not hold that all conspiracies to
commit Hobbs Act robbery would constitute crimes of violence under
- 32 -
§ 924(c)(3)(B). When applying a case-specific, real-world
approach, some such conspiracies would not qualify. In this, we
differ from Barrett, which held, as an alternative to its adoption
of the case-specific approach, that conspiracy to commit a Hobbs
Act robbery is necessarily a crime of violence because "conspiracy
to commit a crime of violence is itself a crime of violence." 903
F.3d at 175. And the government says it disagrees with this
alternative holding in Barrett.
Here, the district court properly explained the elements
of the § 924(c) charge to Douglas. See Fed. R. Crim. P. 11(b)(1)(G)
(requiring the district court to determine that "the defendant
understands . . . the nature of each charge to which the defendant
is pleading").17 Douglas's conditional plea came after the
district court's order, denying his motion to dismiss, expressly
determined that his actions constituted a "crime of violence" under
§ 924(c). Furthermore, the acts that Douglas admitted to in his
guilty plea amply demonstrate that he committed a "crime of
violence" as defined in the residual clause.
This court has earlier said, without reference to
whether a categorical or case-specific approach should be used,
that "a Hobbs Act conspiracy is a 'crime of violence' for purposes
17 Even if there were error here, it would surely be
harmless based on the facts that Douglas accepted in his plea
agreement.
- 33 -
of Section 924(c)" under the residual clause. Turner, 501 F.3d at
67.18 We are at this point unwilling to say that the question can
be resolved as a matter of law. We think it properly must go to
the jury for determination, if there is a trial.
Douglas's conspiracy to commit a Hobbs Act robbery
qualifies as a "crime of violence" because "by its nature, [it]
involve[d] 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). Douglas joined
the conspiracy knowing its goal. Three of the conspirators,
including Douglas, used substantial violence in the course of the
robbery. As discussed, during the robbery one or more of the
conspirators: dragged a victim by the head through a hallway;
brandished firearms; forced several victims around the house and
18Accord United States v. Taylor, 176 F.3d 331, 338 (6th
Cir. 1999) ("[A] conspiracy to commit a robbery that violates the
Hobbs Act is necessarily a conspiracy that, by its nature, involves
a substantial risk that physical force may be used against the
person or property of another, and therefore is a crime of violence
within the meaning of section 924(c)."); United States v. Phan,
121 F.3d 149, 152–53 (4th Cir. 1997) (holding, among other things,
that conspiracy to commit Hobbs Act robbery is a crime of violence
under 924(c)); United States v. Elder, 88 F.3d 127, 129 (2d Cir.
1996) ("[A] Hobbs Act conspiracy to commit robbery is by definition
a conspiracy that involves a substantial risk that physical force
may be used against the person or property of another."); United
States v. Mendez, 992 F.2d 1488, 1492 (9th Cir. 1992) ("[W]here
conspirators agree to use actual or threatened force, or violence
to obtain personal property from another . . . the risk that
physical force may be used in the course of the conspiracy is
substantial within the meaning of § 924(c)(3)(B)." (quotation
marks and citation omitted)).
- 34 -
outside with guns pressed against their heads, threatened to kill
a victim multiple times; and beat all three victims with a crowbar,
bloodying at least one. The conspirators committed this violence
in furtherance of the conspiracy's goals, namely to steal oxycodone
and proceeds of drug dealing. We do not determine the "substantial
risk" of violence of a conspiracy by the conspiracy's outcome, and
many conspiracies could pose a "substantial risk" of violence where
little or no violence actually occurs, see Turner, 501 F.3d at 67;
Phan, 121 F.3d at 152.
III. Conclusion
For the foregoing reasons, we affirm the district
court's denial of the motion to dismiss a portion of Count Six and
affirm Douglas's conviction under § 924(c)(3)(B).
- 35 -
United States v. Douglas
Court: Court of Appeals for the First Circuit
Date filed: 2018-10-12
Citations: 907 F.3d 1
Copy CitationsCombined Opinion