United States v. Douglas

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

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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

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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).

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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

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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").

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 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

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§ 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.

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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).

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