Case: 17-10172 Date Filed: 10/04/2018 Page: 1 of 153
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-10172
________________________
D.C. Docket Nos. 1:16-cv-02392-TWT; 1:10-cr-00305-TWT-RVG-1
IRMA OVALLES,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Respondent - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(October 4, 2018)
Before ED CARNES, Chief Judge, TJOFLAT, MARCUS, WILSON, WILLIAM
PRYOR, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM,
BRANCH, and HULL, * Circuit Judges.
NEWSOM, Circuit Judge:
*
Senior Circuit Judge Hull elected to participate in this decision, pursuant to 28 U.S.C. § 46(c).
Case: 17-10172 Date Filed: 10/04/2018 Page: 2 of 153
The question before us is whether one of the key provisions of an important
federal criminal statute, 18 U.S.C. § 924(c), is unconstitutionally vague. As
relevant to our purposes, § 924(c) makes it a federal offense—punishable by a term
of imprisonment ranging from five years to life—for any person to use, carry, or
possess a firearm in connection with a “crime of violence.” 18 U.S.C.
§ 924(c)(1)(A). The provision challenged here—§ 924(c)(3)’s “residual clause”—
defines the term “crime of violence” to mean 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.” Id. § 924(c)(3)(B).
This case is in some respects a successor to Johnson v. United States, 135 S.
Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018), in which the
Supreme Court invalidated similarly-worded residual clauses on vagueness
grounds. In the wake of those decisions, all here seem to agree that if § 924(c)(3)’s
residual clause is interpreted to require determination of the crime-of-violence
issue using what (in court-speak) has come to be called the “categorical approach,”
the clause is doomed. As the Supreme Court has explained and applied it, this
categorical approach—which the provisions at issue in both Johnson and Dimaya
were deemed to embody—does not permit consideration of a defendant’s specific
conduct or how she “might have committed [her crime] on a particular occasion,”
but rather focuses exclusively on “how the law defines the offense” as a formal
2
Case: 17-10172 Date Filed: 10/04/2018 Page: 3 of 153
matter and whether, in the abstract, “the kind of conduct that the crime involves in
the ordinary case” meets the statutory standard. Johnson, 135 S. Ct. at 2557
(internal quotation marks and citation omitted). In both Johnson and Dimaya, the
Court concluded that application of a standard that requires a reviewing court “to
‘imagine’ an ‘idealized ordinary case of the crime’” rendered the challenged
clauses impermissibly vague. Dimaya, 138 S. Ct. at 1214 (quoting Johnson, 135 S.
Ct. at 2557–58).
On the flip side, Johnson and Dimaya also make clear—and it is common
ground here—that if § 924(c)(3)’s residual clause is instead interpreted to
incorporate what we’ll call a “conduct-based approach” to the crime-of-violence
determination, then the provision is not unconstitutionally vague. As its name
suggests, the conduct-based approach, in stark contrast to the categorical, focuses
not on formal legal definitions and hypothetical “ordinary case[s],” but rather on
the real-world facts of the defendant’s offense—i.e., how the defendant actually
went about committing the crime in question. And as the Supreme Court
emphasized in Johnson—and then reiterated in Dimaya—there is no reason to
“doubt the constitutionality of laws that call for the application of a qualitative
standard such as ‘substantial risk’ to real-world conduct.” Johnson, 135 S. Ct. at
2561 (quoted in Dimaya, 138 S. Ct. at 1214).
The obvious (and decisive) question, then: Which is it here—categorical or
3
Case: 17-10172 Date Filed: 10/04/2018 Page: 4 of 153
conduct-based? Because we find ourselves at this fork in the interpretive road—
the categorical approach imperiling § 924(c)(3)’s residual clause, a conduct-based
reading saving it—we invoke the canon of “constitutional doubt.” Pursuant to that
“elementary rule,” the Supreme Court has long held, “every reasonable
construction must be resorted to in order to save a statute from
unconstitutionality.” Hooper v. California, 155 U.S. 648, 657 (1895). The pivotal
issue, therefore, is not whether § 924(c)(3)’s residual clause is necessarily, or even
best, read to incorporate a conduct-based interpretation—but simply whether it can
“reasonabl[y],” see id., “plausibl[y],” Clark v. Martinez, 543 U.S. 371, 381 (2005),
or “fairly possibl[y],” I.N.S. v. St. Cyr, 533 U.S. 289, 300 (2001), be so understood.
Joining the Second Circuit, which recently came to the same conclusion, see
United States v. Barrett, __ F.3d ___, 2018 WL 4288566 (2d Cir. Sept. 10, 2018),
we find that § 924(c)(3)(B) can be read to embody the conduct-based approach—
and therefore, under the constitutional-doubt canon, that it must be.
Accordingly, we hold that § 924(c)(3)(B) prescribes a conduct-based
approach, pursuant to which the crime-of-violence determination should be made
by reference to the actual facts and circumstances underlying a defendant’s
offense. To the extent that our earlier decision in United States v. McGuire, 706
F.3d 1333 (11th Cir. 2013), holds otherwise, it is overruled.
4
Case: 17-10172 Date Filed: 10/04/2018 Page: 5 of 153
I
A
Under 18 U.S.C. § 924(c), “any person who, during and in relation to any
crime of violence . . . uses or carries a firearm, or who, in furtherance of any such
crime, possesses a firearm” is guilty of a federal offense and subject to a prison
term ranging between five years and life. 18 U.S.C. § 924(c)(1)(A). Section
924(c) defines the term “crime of violence” as “an offense that is a felony” and—
(A) has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force
against the person or property of another may be used in the course of
committing the offense.
Id. § 924(c)(3). For ease of reference—and as a way of facilitating comparisons
with other similar statutes—we’ll call Subsection (3)(A) the “elements clause” and
Subsection (3)(B) the “residual clause.”1
Importantly here, this Court held in United States v. McGuire that the
question whether a predicate offense qualifies as a “crime of violence” under either
subsection is one that a court “must answer ‘categorically’—that is, by reference to
the elements of the offense, and not the actual facts of [the defendant’s] conduct.”
1
We have at times referred to these as the “use-of-force” and “risk-of-force” clauses,
respectively. See Ovalles v. United States, 861 F.3d 1257, 1263 (11th Cir. 2017), reh’g en banc
granted, opinion vacated, 889 F.3d 1259 (11th Cir. 2018). The terminological distinction makes
no substantive difference.
5
Case: 17-10172 Date Filed: 10/04/2018 Page: 6 of 153
706 F.3d 1333, 1336 (11th Cir. 2013) (citation omitted).
B
In 2010, Irma Ovalles was charged by information with six robbery- and
carjacking-related offenses, all of which arose out of what can only be described as
a three-day crime binge. As particularly relevant here, Ovalles was charged with
(1) attempted carjacking in violation of 18 U.S.C. § 2119 and (2) using and
carrying a firearm during a “crime of violence”—the attempted carjacking—in
violation of 18 U.S.C. § 924(c)(1)(A). Ovalles entered into a written plea
agreement in which she admitted that “she [was] in fact guilty” on all six counts.
At her plea hearing, the government outlined the elements of each crime, and
Ovalles explained that she understood what the government would have to prove
should she opt to go to trial.
The government then made a comprehensive factual proffer detailing
Ovalles’s involvement in the crimes. In general, the proffer summarized the
evidence demonstrating that Ovalles and her co-conspirators (1) robbed a grocery
store while armed with baseball bats, then (2) still wielding the bats, carjacked a
Dodge Ram, then (3) carjacked a Toyota 4-Runner, pistol-whipping its owner, then
(4) attempted to carjack a Chevy Venture—more on this one below—and finally
(5) carjacked a Ford F-150 at gunpoint. More specifically, concerning the
attempted carjacking of the Chevy Venture—during which one of Ovalles’s
6
Case: 17-10172 Date Filed: 10/04/2018 Page: 7 of 153
accomplices fired an AK-47, and which therefore serves as the predicate offense
for Ovalles’s § 924(c) conviction—the government’s proffer explained as follows:
They see a family getting out of a Chevy Venture in Clayton
County, Georgia, and as the family is getting out of their car, these
two defendants along with their co-conspirators go up to the family
and demand the keys to the car and demand the car. Now, they have a
baseball bat and guns with them. There’s a juvenile, a 13-year-old
female, who is part of that family group of victims. They hit that
juvenile in the mouth with a baseball bat. The damage to her I am
sure will be addressed at sentencing. It was not—she did not go to the
hospital. Let me say that.
They are demanding the keys. Somebody comes out of the
apartment complex where this is happening and that person has a gun.
He then confronts the assailants …. They flee, not taking the Chevy
Venture, which is why it is an attempted carjacking.
The government would show that the Chevy Venture traveled
in interstate commerce, that it was not made in the State of Georgia.
The government would prove it was these defendants not only through
their confessions as to this event, also through the victims’ testimony.
They do I.D. the defendants in this particular case.
On the way out of the apartment complex … co-conspirator …
Jerry Arriaga … has an AK-47 style assault rifle and he then
discharges that gun several times towards the victim family, the guy
who came to rescue them, who was armed, and the car, and that is the
basis of Count Five, the use of a firearm during and in relation to a
crime of violence.
With respect to each of the charges—including, as relevant here, the
attempted-carjacking and § 924(c) counts—Ovalles stated that she had no
“material disagreement with what the government sa[id] it could prove . . . .”
Having heard the government’s summary of the evidence against her, Ovalles
7
Case: 17-10172 Date Filed: 10/04/2018 Page: 8 of 153
pleaded guilty to each of the charged offenses, acknowledged that her pleas were
voluntary, and explained that she was so pleading because she was “in fact guilty
as charged in the criminal information.”
The district court thereafter sentenced Ovalles to serve 120 months in prison
on the § 924(c) count—which, per the statute, the court imposed to run
consecutively to the concurrent 108-month terms on the remaining charges.
Ovalles did not object to her sentences, nor did she file a direct appeal.
C
Several years later, Ovalles filed a motion for relief under 28 U.S.C. § 2255
contending that her § 924(c) conviction and sentence were unconstitutional in light
of the Supreme Court’s intervening decision in Johnson v. United States, 135 S. Ct.
2551 (2015). In short, the Court in Johnson invalidated as unconstitutionally
vague the Armed Career Criminal Act’s residual clause—which, for purposes of
applying that statute’s recidivism-based sentence enhancement, defines the term
“violent felony” to include any crime that is punishable by a year in prison and 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 voided the ACCA’s residual
clause principally based on its conclusion that the provision necessitated the
categorical approach to determining whether an underlying conviction constitutes a
“violent felony.” See Johnson, 135 S. Ct. at 2557–58, 2561–63. Ovalles asserted
8
Case: 17-10172 Date Filed: 10/04/2018 Page: 9 of 153
that because § 924(c)(3)’s residual clause is “nearly identical to” the ACCA’s,
Johnson’s reasoning rendered it unconstitutional, as well. Accordingly, she
argued, she was “no longer guilty of violating” § 924(c) because her predicate
attempted-carjacking offense “no longer qualifie[d] as a crime of violence under §
924(c)(3)(B).”
The district court denied Ovalles’s § 2255 motion, reasoning that
§ 924(c)(3)’s residual clause did “not suffer from the same unpredictability” as the
ACCA’s. The court subsequently granted Ovalles a certificate of appealability on
the question whether § 924(c)(3)(B) is unconstitutionally vague under Johnson.
A panel of this Court affirmed the district court’s decision. For our
purposes, the panel’s opinion did two significant things. First, in accordance with
(and citing to) our earlier decision in McGuire, it held that the question whether
Ovalles’s attempting-carjacking offense constitutes a “crime of violence” within
the meaning of § 924(c)(3) had to be answered using the categorical approach. See
Ovalles v. United States, 861 F.3d 1257, 1268–69 (11th Cir. 2017), reh’g en banc
granted, opinion vacated, 889 F.3d 1259 (11th Cir. 2018). Second, though—and
notwithstanding its application of the categorical approach—the panel held that
Johnson did not invalidate § 924(c)(3)’s residual clause because, it said, the
definition of “crime of violence” in § 924(c)(3)(B) is clearer than the definition of
“violent felony” in the ACCA. Id. at 1265–66. In particular, the panel emphasized
9
Case: 17-10172 Date Filed: 10/04/2018 Page: 10 of 153
(1) that § 924(c)(3)’s residual clause refers not (as does the ACCA’s) to the risk of
“physical injury,” but rather to the risk of “physical force,” which it thought was
more precise; (2) that § 924(c)(3)(B)’s inclusion of the qualifying phrase “in the
course of committing the offense”—which is absent from the ACCA—narrows the
statute’s reach; and (3) that § 924(c)(3)’s residual clause isn’t plagued (and
confused, as is the ACCA’s) by linkage to a disjointed hodgepodge of enumerated
offenses. Id. at 1266.2
Not long after the panel issued its opinion, the Supreme Court decided
Sessions v. Dimaya, 138 S. Ct. 1204 (2018). There, following Johnson, the Court
struck down 18 U.S.C. § 16’s residual clause (at least as that clause is incorporated
by a provision of the Immigration and Nationality Act prescribing the bases on
which aliens may be rendered removable). Section 16’s residual clause is similar
to the clause invalided in Johnson and essentially identical to § 924(c)(3)’s residual
clause at issue here. Once again applying the categorical approach―there, to
determining whether an alien’s prior conviction qualified as a “crime of
violence”—the Court concluded that § 16’s residual clause is unconstitutionally
vague under the reasoning of Johnson. Dimaya, 138 S. Ct. at 1214–15. Notably,
in the course of its opinion, the Dimaya Court rejected, with respect to § 16(b),
2
The panel separately held that Ovalles’s attempted-carjacking offense qualifies as a “crime of
violence” under the elements clause, see 18 U.S.C. § 924(c)(3)(A). Ovalles, 861 F.3d at 1267–
69. That holding is not before the en banc Court.
10
Case: 17-10172 Date Filed: 10/04/2018 Page: 11 of 153
many of the same textual arguments that the panel decision in this case had
embraced as bases for distinguishing § 924(c)(3)’s residual clause from the
ACCA’s. See id. at 1218–21.
In light of the Supreme Court’s decision in Dimaya, we vacated the panel’s
opinion and took this case en banc to determine (1) whether 18 U.S.C.
§ 924(c)(3)’s residual clause is unconstitutionally vague under Dimaya and (2)
whether we should overrule McGuire to the extent that it requires a categorical
approach to determining whether an offense constitutes a “crime of violence”
within the meaning of § 924(c)(3)(B).3
II
At the outset, some table-setting is in order. How exactly did we get here?
Why did the Supreme Court conclude in both Johnson and Dimaya that the
residual clauses before it were unconstitutionally vague, and what do the decisions
in those cases tell us about § 924(c)(3)’s own residual clause? Here’s how—and
why, and what.
A
We begin with a deeper dive into Johnson. As already explained briefly,
Johnson involved the ACCA, which prescribes a mandatory minimum 15-year
3
In a 28 U.S.C. § 2255 proceeding—as always—we review questions of law, like those
presented here, de novo. Devine v. United States, 520 F.3d 1286, 1287 (11th Cir. 2008).
11
Case: 17-10172 Date Filed: 10/04/2018 Page: 12 of 153
sentence for any person who already “has three previous convictions . . . for a
violent felony . . . committed on occasions different from one another.” 18 U.S.C.
§ 924(e)(1). The ACCA goes on to define the term “violent felony” to mean any
crime punishable by a term of imprisonment 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). Subsection (B)(i) of the ACCA’s definitional provision
is called (as we have called § 924(c)’s parallel provision) the “elements clause,”
while Subsection (B)(ii) contains both the “enumerated-offenses clause” and
separately (and again like § 924(c)’s catch-all) the “residual clause.” Beeman v.
United States, 871 F.3d 1215, 1218 (11th Cir. 2017).
In striking down the ACCA’s residual clause as unconstitutionally vague,
the Supreme Court in Johnson emphasized “[t]wo features.” 135 S. Ct. at 2557.
For one thing, the Court pointed to the statute’s hazy “serious potential risk”
standard, which it said “leaves uncertainty about how much risk it takes for a crime
to qualify as a violent felony.” Id. at 2558. Far more problematic, the Court
explained, was the fact that the ACCA’s residual clause had long been construed to
incorporate the categorical approach—which, the Court observed, entails a
“speculative,” “idealized” analysis that “ties the judicial assessment of risk to a
12
Case: 17-10172 Date Filed: 10/04/2018 Page: 13 of 153
judicially imagined ‘ordinary case’ of a crime, not to real-world facts or statutory
elements,” and thus “leaves grave uncertainty about how to estimate the risk posed
by a crime.” Id. at 2557–58. Indeed, the Court made clear that application of the
categorical approach was the hinge on which its vagueness determination turned:
“It is one thing,” the Court stressed, “to apply an imprecise ‘serious potential risk’
standard to real-world facts; it is quite another to apply it to a judge-imagined
abstraction” of the sort required by the categorical approach. Id. at 2558.
Continuing in the same vein, the Court reiterated that “[a]s a general matter, we do
not doubt the constitutionality of laws that call for the application of a qualitative
standard such as ‘substantial risk’ to real-world conduct.” Id. at 2561. But, the
Court held, the categorical approach’s focus on the “idealized ordinary case”
requires an “abstract inquiry” that “offers significantly less predictability than one
that deals with” actual facts. Id. (internal quotation marks and citation omitted).
B
Next, Dimaya. There, the Court considered a provision of the INA that
renders an alien removable if he is “convicted of an aggravated felony at any time
after admission.” 8 U.S.C. § 1227(a)(2)(A)(iii). The INA goes on to define the
term “aggravated felony” to include, by statutory cross-reference, “a crime of
violence (as defined in section 16 of Title 18[)].” Id. § 1101(a)(43)(F). Section
16’s definition of “crime of violence,” in turn, reads a lot like the ACCA’s
13
Case: 17-10172 Date Filed: 10/04/2018 Page: 14 of 153
definition of “violent felony” at issue in Johnson:
(a) an offense that has as an element the use, attempted use, or
threatened use of physical force against the person or property of
another, or
(b) any other offense that is a felony and that, by its nature, involves a
substantial risk that physical force against the person or property of
another may be used in the course of committing the offense.
18 U.S.C. § 16. Subsection (a) is commonly called (you guessed it) the “elements
clause” and Subsection (b) the “residual clause.” Dimaya, 138 S. Ct. at 1211.
In Dimaya, the Supreme Court voided § 16’s residual clause (again, as
incorporated in the INA) as unconstitutionally vague, concluding that it shared the
two features that had doomed the ACCA’s residual clause in Johnson―namely,
(1) a fuzzy “substantial risk” standard and (2) incorporation of the categorical
approach to determining the violence of the underlying crime. Id. at 1213–14.
Significantly, though, just as in Johnson, the Dimaya Court stressed that § 16(b)’s
vagueness problem resulted principally from the categorical approach: “The
[Johnson] Court emphasized that [the ‘serious potential risk’ standard] alone
would not have violated the void-for-vagueness doctrine: Many perfectly
constitutional statutes use imprecise terms like ‘serious potential risk’ (as in
ACCA’s residual clause) or ‘substantial risk’ (as in § 16’s). The problem came
from layering such a standard on top of the requisite ‘ordinary case’ inquiry”
required by the categorical approach. Id. at 1214 (citing Johnson, 135 S. Ct. at
14
Case: 17-10172 Date Filed: 10/04/2018 Page: 15 of 153
2561). As Justice Thomas summarized in his dissent—without pushback—“[t]he
sole reason that the Court deem[ed] § 16(b) unconstitutionally vague is because it
read[] the statute as incorporating the categorical approach,” without which “the
Court ‘d[id] not doubt’ the constitutionality of § 16(b).” Id. at 1252 (Thomas, J.,
dissenting).
An important caveat about Dimaya’s application of the categorical approach
to invalidate § 16’s residual clause: Only a plurality of the Court concluded that the
statute actually requires the categorical approach. Justice Gorsuch, who provided
the decisive fifth vote, concurred separately on the assumption—but not a
determination—that § 16(b) incorporates the categorical approach. Id. at 1232
(Gorsuch, J., concurring in part and concurring in the judgment) (stating that he
was “proceed[ing] on the premise” that the categorical approach applied). Justice
Gorsuch emphasized that he “remain[s] open to different arguments about
[Supreme Court] precedent and the proper reading of language like” that found in
§ 16(b), and that he “would address them in another case, whether involving the
INA or a different statute, where the parties have a chance to be heard and we
might benefit from their learning.” Id. at 1233.
C
So what do Johnson and Dimaya portend for § 924(c), which again, as
relevant here, makes it a federal offense to use, carry, or possess a firearm in
15
Case: 17-10172 Date Filed: 10/04/2018 Page: 16 of 153
connection with a “crime of violence”―which again, as relevant here, means a
felony offense that “by its nature, involves a substantial risk that physical force …
may be used in the course of committing the offense,” 18 U.S.C. § 924(c)(3)(B)?
Allow us first to state the obvious: Section 924(c)(3)’s residual clause is
identical—in every jot and tittle—to § 16’s, which the Supreme Court struck down
in Dimaya. Next, the less obvious but no less true: While the panel decision in this
case offered several distinctions between § 924(c)(3)’s residual clause and the
ACCA’s—which at the time had recently been invalidated in Johnson—the
Supreme Court’s intervening decision in Dimaya (in a portion of the opinion
joined by a majority of the justices) demolished all of them. As already noted, the
panel first emphasized that § 924(c)(3)’s residual clause refers not to the risk of
“physical injury” but to the risk of “physical force,” which it said was “much more
definite.” 861 F.3d at 1263. When the government asserted the same injury-force
distinction in seeking to save § 16(b) in Dimaya, the Court flatly rejected it,
holding that “this variance in wording cannot make ACCA’s residual clause vague
and § 16(b) not.” 138 S. Ct. at 1221. Second, the panel thought that
§ 924(c)(3)(B)’s inclusion of the qualifying phrase “in the course of committing
the offense”—which is missing from the ACCA—narrowed the statute’s reach.
861 F.3d at 1266. Wrong, said the Dimaya Court in addressing the identical
argument aimed at § 16’s residual clause: “Th[at] phrase . . . cannot cure the
16
Case: 17-10172 Date Filed: 10/04/2018 Page: 17 of 153
statutory indeterminacy Johnson described.” 138 S. Ct. at 1220. Finally, the panel
reasoned that § 924(c)(3)’s residual clause was clearer, in a constitutional sense,
because it wasn’t linked, as was the ACCA’s, to a “confusing list” of enumerated
offenses. 861 F.3d at 1266. Wrong again, Dimaya held with respect to § 16,
which likewise lacks an enumerated-offenses clause: Even if one “[s]trip[s] away
the enumerated crimes,” the Court said, “textual indeterminacy” remains. 138 S.
Ct. at 1221. In short, in the course of rebuffing the government’s attempts to
distinguish § 16’s residual clause from the ACCA’s, the Dimaya Court explicitly
rejected the very same arguments that the panel in this case had adopted as a means
of distinguishing § 924(c)(3)’s residual clause—calling them “minor linguistic
disparities” that didn’t “make[] any real difference.” Id. at 1223.
Accordingly, it seems clear that if we are required to apply the categorical
approach in interpreting § 924(c)(3)’s residual clause—as the panel did, per our
earlier decision in McGuire, and as the Supreme Court did in voiding the residual
clauses before it in Johnson and Dimaya—then the provision is done for. If, by
contrast, we are not required to apply the categorical approach in interpreting
§ 924(c)(3)(B), then there is every reason to believe that the provision will survive,
notwithstanding its incorporation of a “substantial risk” term—because, as the
Supreme Court said in Johnson and then reiterated in Dimaya, there is no reason to
“doubt the constitutionality of laws that call for the application of a qualitative
17
Case: 17-10172 Date Filed: 10/04/2018 Page: 18 of 153
standard such as ‘substantial risk’ to real-world conduct.” Johnson, 135 S. Ct. at
2561 (quoted in Dimaya, 138 S. Ct. at 1214).
III
That stark divergence—in which the categorical approach dooms
§ 924(c)(3)’s residual clause, while a conduct-based interpretation salvages it—
tees up the rule of “constitutional doubt.” Simply stated, that canon of construction
provides that “[a] statute should be interpreted in a way that avoids placing its
constitutionality in doubt.” Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 247 (2012).
As the Supreme Court has explained it, the constitutional-doubt canon “is a
tool for choosing between competing plausible interpretations of a statutory text,
resting on the reasonable presumption that Congress did not intend the alternative
which raises serious constitutional doubts.” Clark v. Martinez, 543 U.S. 371, 381
(2005). Under the canon, “when 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.” Jennings
v. Rodriguez, 138 S. Ct. 830, 836 (2018). Indeed, the Supreme Court has held that
courts are “obligated to construe [a] statute to avoid [constitutional] problems” if it
is “fairly possible” to do so. I.N.S. v. St. Cyr, 533 U.S. 289, 300 (2001) (citations
omitted) (emphasis added). That is particularly true where (as here) absent a
18
Case: 17-10172 Date Filed: 10/04/2018 Page: 19 of 153
reasonable saving construction, a statute might be unconstitutionally vague. See
United States ex rel. Att’y Gen. v. Delaware & Hudson Co., 213 U.S. 366, 407
(1909) (noting that courts have a “plain duty” to adopt any “reasonabl[e]”
interpretation of a statute that avoids vagueness concerns).
The question here, therefore, is whether § 924(c)(3)’s residual clause is in
fact “susceptible of multiple interpretations,” Jennings, 138 S. Ct. at 836—and
more particularly, whether it is “plausible,” Clark, 543 U.S. at 381, or “fairly
possible,” St. Cyr, 533 U.S. at 300, to interpret the clause to incorporate the
(statute-preserving) conduct-based approach. Ovalles contends that the
constitutional-doubt canon doesn’t apply here because, she says, “the text of
§ 924(c)(3)(B) is not open to competing, plausible interpretations”—it can be
understood only, she insists, to require the categorical approach. Appellant’s En
Banc Br. at 23; accord Dissenting Op. of J. Pryor at 140 (asserting that a conduct-
based reading “does not … even approach plausible”). For the reasons explained
below, we disagree.
A
In assessing whether § 924(c)(3)’s residual clause truly compels the
categorical approach, we begin at the beginning: Where did this “categorical
approach” come from? It’s certainly not, it seems to us, the most intuitive way of
thinking about a particular crime’s risk of violence. Surely the usual means of
19
Case: 17-10172 Date Filed: 10/04/2018 Page: 20 of 153
considering that issue would be to account for all of the specific circumstances
surrounding the offense’s commission—i.e., the actual facts. If you were to ask
John Q. Public whether a particular crime posed a substantial risk of violence,
surely he would respond, “Well, tell me how it went down—what happened?”
How, then, did we get to the point where, in certain circumstances, reviewing
courts are required to ignore the real-world facts in favor of a sterile academic
inquiry into what the Johnson Court called “speculative,” “idealized,” “judge-
imagined abstraction[s]”? 135 S. Ct. at 2557–58. And what are the considerations
that have impelled the Supreme Court to conclude that certain statutes require
application of the categorical approach?
That story follows.
1
The Supreme Court initially conceived the categorical approach in Taylor v.
United States, 495 U.S. 575 (1990). The question there was whether the reference
to “burglary” in the ACCA’s enumerated-offenses clause meant burglary as
defined by each of the 50 states’ separate laws or, instead, burglary in some
“generic” sense. Id. at 579–80. In concluding that the ACCA referred to “generic”
burglary, the Court rejected not only the idea that the definition of “violent felony”
should vary from state to state, but also the notion that the government, in seeking
to prove the violence of the underlying crime, could introduce evidence about the
20
Case: 17-10172 Date Filed: 10/04/2018 Page: 21 of 153
“particular facts” of the defendant’s conduct, and instead adopted what the Court
dubbed—and we still call—a “categorical approach.” Id. at 598–602. In
explaining why the ACCA’s enumerated-offenses clause requires the categorical
approach, the Taylor Court emphasized two factors—one textual, the other
practical.
First, the Court concluded that when read in context, § 924(e)(2)(B)(ii)
“most likely refers to the elements of the statute of conviction, not to the facts of
each defendant’s conduct.” Id. at 600–01. The reason, the Court explained, is that
the language of the ACCA’s operative provision, § 924(e)(1), “refers to ‘a person
who ... has three previous convictions’ for—not a person who has committed—
three previous violent felonies or drug offenses.” Id. at 600. Congress’s targeted
focus on “convictions” rather than conduct, the Court reasoned, indicated that it
“intended the sentencing court to look only to the fact that the defendant had been
convicted of crimes falling within certain categories, and not to the facts
underlying the prior convictions.” Id.
Second, the Taylor Court stressed that in the ACCA context, “the practical
difficulties and potential unfairness of a factual approach [would be] daunting.”
Id. at 601. In particular, the Court worried about the amount of evidence that
might need to be introduced at a sentencing hearing in order to reconstruct the
circumstances underlying a defendant’s prior (and often long-since-passed)
21
Case: 17-10172 Date Filed: 10/04/2018 Page: 22 of 153
convictions. Id. Relatedly, the Court anticipated a Sixth Amendment problem that
later decisions would amplify―namely, that judicial factfinding at sentencing
about the real-world facts of crimes that led to prior convictions could “abridg[e a
defendant’s] right to a jury trial[.]” Id.; see also Apprendi v. New Jersey, 530 U.S.
466, 490 (2000) (“Other than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.”). In short, the Taylor
Court feared that if the parties could introduce evidence bearing on the violence of
the defendant’s past crimes, then sentencing proceedings might devolve into full-
blown mini-trials (hence the impracticability) in which judges, rather than juries,
were doing the factfinding (hence the Sixth Amendment concern). See 495 U.S. at
601–02.
For these reasons—the text’s focus on “convictions” and the impracticability
(and unfairness) of effectively re-litigating the seriousness of stale crimes long
after the fact—the Taylor Court concluded that for purposes of deciding whether a
prior conviction constitutes a “violent felony,” the “only plausible interpretation”
of § 924(e)(2)(B)(ii) is that it “generally requires the trial court to look only to the
fact of conviction and the statutory definition of the prior offense,” and not to the
22
Case: 17-10172 Date Filed: 10/04/2018 Page: 23 of 153
actual circumstances of the defendant’s crime. Id. at 602.4
2
The Supreme Court next applied the categorical approach in Leocal v.
Ashcroft, 543 U.S. 1 (2004), which held that a DUI conviction under Florida state
law did not constitute a “crime of violence” within the meaning of 18 U.S.C. § 16,
as that statute’s definition applies in the INA. The Court there concluded that
§ 16’s language, like the ACCA’s, “requires us to look to the elements and the
nature of the offense of conviction, rather than to the particular facts relating to
[the defendant’s] crime.” 543 U.S. at 7. In so doing, the Leocal Court didn’t
provide a detailed explanation. It simply stated that in both § 16’s elements and
residual clauses, “the statute directs our focus to the ‘offense’ of conviction”—and
with respect to the residual clause in particular, noted its use of the phrase “by its
nature.” Id.at 7–8. See 18 U.S.C. § 16(b) (defining “crime of violence” to mean
an “offense that is a felony and that, by its nature, involves a substantial risk” of
physical force); 8 U.S.C. § 1227(a)(2)(A)(iii) (rendering deportable an alien
“convicted of” an aggravated felony, which under 8 U.S.C. § 1101(a)(43)(F)
includes a “crime of violence” as defined in 18 U.S.C. § 16).
4
Although Taylor involved the ACCA’s enumerated-offenses clause, the Supreme Court later
extended the categorical approach (albeit without explanation) to the ACCA’s residual clause.
See James v. United States, 550 U.S. 192 (2007), overruled by Johnson, 135 S. Ct. at 2563.
23
Case: 17-10172 Date Filed: 10/04/2018 Page: 24 of 153
3
That, for present purposes, brings us (back) to Johnson, in which, as already
explained, the Supreme Court applied the categorical approach in the course of
invalidating the ACCA’s residual clause. See 135 S. Ct. at 2557–61. The Johnson
Court insisted on the categorical approach—and refused a dissenting justice’s
suggestion that it consider the actual facts of the defendant’s underlying crimes—
for three reasons. Id. at 2561–62. First, the Court noted that “the Government
ha[d] not asked [it] to abandon the categorical approach in residual-clause cases”
in favor of a conduct-based approach. Id. at 2562. Second, relying on and quoting
its earlier decision in Taylor, the Court highlighted the ACCA’s operative clause’s
focus on “convictions”: “Taylor explained that the relevant part of the [ACCA]
refers to a ‘person who … has three previous convictions’ for—not a person who
has committed—three previous violent felonies or drug offenses.” Id. (internal
quotation marks and citation omitted). “This emphasis on convictions,” the
Johnson Court reiterated—again echoing Taylor—“indicates that Congress
intended the sentencing court to look only to the fact that the defendant had been
convicted of crimes falling within certain categories, and not to the facts
underlying the prior convictions.” Id. (internal quotation marks and citation
omitted). Third, and yet again channeling Taylor, the Johnson Court
underscored—at least in the context of a statute, like the ACCA, that predicates a
24
Case: 17-10172 Date Filed: 10/04/2018 Page: 25 of 153
sentence enhancement on prior crimes—the “utter impracticability” of requiring a
court “to reconstruct, long after the original conviction, the conduct underlying that
conviction.” Id.
4
Last came Dimaya, in which the Court applied the categorical approach in
striking down § 16’s residual clause—again, at least as that provision is
incorporated by the INA. A four-justice plurality concluded that § 16(b)
incorporates the categorical approach for a handful of (now increasingly familiar)
reasons. First, as in Johnson, the plurality noted that the government hadn’t
advocated a conduct-based approach: “To begin where Johnson did, the
Government once again ‘has not asked us to abandon the categorical approach in
residual-clause cases.’” Dimaya, 138 S. Ct. at 1217 (quoting Johnson, 135 S. Ct.
at 2562). Second, the plurality emphasized that the categorical approach was
adopted “in part to avoid the Sixth Amendment concerns that would arise from
sentencing courts’ making findings of fact that properly belong to juries.” Id.
(internal quotation marks and citation omitted).
Third, the plurality explained that “[b]est read,” the text of § 16’s residual
clause incorporates the categorical approach. Id. Quoting the Court’s earlier
decision in Nijhawan v. Holder, 557 U.S. 29, 34 (2009), the plurality stated:
Simple references to a ‘conviction,’ ‘felony,’ or ‘offense,’ . . . are
‘read naturally’ to denote the ‘crime as generally committed.’ And
25
Case: 17-10172 Date Filed: 10/04/2018 Page: 26 of 153
the words ‘by its nature’ in § 16(b) make that meaning all the clearer.
The statute, recall, directs courts to consider whether an offense, by its
nature, poses the requisite risk of force. An offense’s ‘nature’ means
its ‘normal and characteristic quality.’
Dimaya, 138 S. Ct. at 1217 (internal citations omitted). Fourth, and relatedly, the
plurality said that “the same conclusion follows if we pay attention to language that
is missing from § 16(b).” Id. at 1218. In particular, the plurality reasoned, “the
absence of terms alluding to a crime’s circumstances, or its commission, makes a
[conduct]-based interpretation an uncomfortable fit.” Id.
Finally, following Taylor and Johnson, the plurality stressed the “utter
impracticability” of applying a conduct-based approach to a statute, like § 16(b),
that requires consideration of prior convictions―in particular, the “daunting
difficulties of accurately reconstructing, often many years later, the conduct
underlying a conviction.” Id. (internal quotation marks omitted).
As already noted, Justice Gorsuch concurred separately in Dimaya,
explaining that he was “proceed[ing] on the premise”—without definitively
concluding—that as used in the INA, § 16(b) incorporates the categorical
approach. Id. at 1232 (Gorsuch, J., concurring in part and concurring in the
judgment). He gave several reasons for his circumspection: (1) “because no party
[had] argued for a different way to read” the provision at issue; (2) because
Supreme Court precedent (by which he presumably meant Leocal) “seemingly
require[d]” application of the categorical approach to § 16(b); and (3) “because the
26
Case: 17-10172 Date Filed: 10/04/2018 Page: 27 of 153
government itself ha[d] conceded (repeatedly) that the law compels” the
categorical approach in immigration-related § 16(b) cases. Id. He emphasized,
though, that he would “remain open” in future cases “to different arguments about
our precedent and the proper reading of language like” that found in § 16(b). Id. at
1233.
* * *
So . . . what are the takeaways? What factors have led the Supreme Court to
conclude that a statute requires the categorical approach? The decisions
interpreting the ACCA and § 16 reveal that the Court has historically applied the
categorical approach to those statutes’ residual clauses for the following reasons:
1. because the government never asked the Court to consider a conduct-based
approach (Johnson, Dimaya);
2. because the text of those statutes’ operative provisions focused not on
conduct, but rather on “convictions”—and thus, the Court reasoned, solely
on formal legal elements (Taylor, Johnson);
3. because those statutes’ definitional provisions used terms and phrases like
“offense,” “felony,” and “by its nature,” which the Court concluded pointed
toward a categorical (rather than conduct-based) inquiry (Leocal, Dimaya);
4. because those statutes lacked any reference to the underlying crime’s
commission or circumstances (Dimaya);
5. because applying the categorical approach would avoid the impracticability
of requiring sentencing courts to engage in after-the-fact reconstructions of
the circumstances underlying prior convictions (Taylor, Johnson, Dimaya);
and
6. because applying the categorical approach would avoid the Sixth
27
Case: 17-10172 Date Filed: 10/04/2018 Page: 28 of 153
Amendment issues that could arise from sentencing courts making findings
of fact that properly belong to juries (Taylor, Johnson, Dimaya).
The decisive question, it seems to us, is whether those considerations require
us to interpret § 924(c)(3)’s own residual clause to incorporate the categorical
approach—or whether, instead, the clause can “plausibly” be read to incorporate
the conduct-based approach. For reasons explained below, we conclude that
§ 924(c)(3)(B) can at the very least plausibly be read to bear a conduct-based
interpretation, and we therefore hold, pursuant to the canon of constitutional doubt,
that because the conduct-based reading spares the residual clause from the near-
certain death to which the categorical approach would condemn it, the conduct-
based approach must prevail. In so doing, we join the Second Circuit, which also
recently concluded—likewise applying the constitutional-doubt canon—that
§ 924(c)(3)(B) should be interpreted to embody the conduct-based approach. See
United States v. Barrett, __ F.3d ___, 2018 WL 4288566, at *9–14 (2d Cir. Sept.
10, 2018).
B
Although it’s not particularly elegant—in fact, it’s downright clunky and
more than a little repetitive—there’s really not a better way to assess whether the
Supreme Court’s own stated reasons for adopting the categorical approach in the
ACCA and immigration-related § 16 contexts likewise compel a categorical
28
Case: 17-10172 Date Filed: 10/04/2018 Page: 29 of 153
interpretation of § 924(c)(3)(B) than simply to march through them, one by one.
1
In applying the categorical approach in both Johnson and Dimaya, the
Supreme Court “first” and most prominently noted that the government hadn’t
advocated a conduct-based interpretation. See Johnson, 135 S. Ct. at 2562;
Dimaya, 138 S. Ct. at 1217 (plurality opinion); id. at 1232 (Gorsuch, J., concurring
in part and concurring in the judgment). Frankly, this seems like an odd place to
start in interpreting a statute—it’s not particularly, well, interpretive—but be that
as it may, the Supreme Court has “beg[u]n” with it, see id. at 1217 (plurality
opinion), so we will too.
Suffice it to say that things are very different here. In the wake of Johnson
and Dimaya—and the ensuing drumbeat suggesting that application of the
categorical approach likewise imperils § 924(c)(3)’s residual clause―the
government has expressly (and at length) urged us to abandon the categorical
approach to § 924(c)(3)(B) in favor of a conduct-based interpretation. See
Appellee’s En Banc Br. at 12–43. We have here, therefore, what the Supreme
Court lacked in both Johnson and Dimaya, and what the panel lacked in
McGuire—namely, the benefit of the full “adversarial testing” that is so “crucial to
sound judicial decisionmaking,” Dimaya, 138 S. Ct. at 1232 (Gorsuch, J.,
29
Case: 17-10172 Date Filed: 10/04/2018 Page: 30 of 153
concurring in part and concurring in the judgment).5
2
A second basis that the Supreme Court has highlighted in applying the
categorical approach—derived from the text of the ACCA’s operative provision,
and specifically its reference to “convictions”―is likewise inapplicable here. As
already noted, the Court in Johnson (relying on and quoting its earlier decision in
Taylor) emphasized that the ACCA’s operative clause “refers to a person who …
has three previous convictions for—not a person who has committed—three
previous violent felonies or drug offenses.” 135 S. Ct. at 2562 (internal quotation
marks and citation omitted). The statute’s focus on “convictions,” the Court said,
demonstrates that “Congress intended the sentencing court to look only to the fact
that the defendant had been convicted of crimes falling within certain categories,
and not to the facts underlying the prior convictions.” Id. (internal quotation marks
omitted); see also Barrett, __ F.3d ___, 2018 WL 4288566, at *10 (emphasizing
that, “[i]n rejecting a conduct-specific approach, the [Taylor] Court cited the
statutory text, which specifically referred to ‘convictions’ rather than conduct”).
Section 924(c)’s operative provision nowhere refers to “convictions.” See
5
Although the parties in McGuire dickered over whether a pure categorical approach or a
“modified” categorical approach should govern § 924(c)(3)(B), they agreed that some form of
categorical approach applied. No one urged the Court to apply a conduct-based approach. See
McGuire Appellant’s Br. at 17–19; McGuire Appellee’s Br. at 17–18.
30
Case: 17-10172 Date Filed: 10/04/2018 Page: 31 of 153
18 U.S.C. § 924(c)(1)(A). Quite the opposite, in fact—it refers to conduct: It
prescribes an increased term of imprisonment for “any person who, during and in
relation to any crime of violence . . . uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm.” Id. That’s not dispositive, of
course—§ 924(c)’s operative provision also applies to the statute’s elements
clause, which all seem to agree incorporates the categorical approach. But it does
demonstrate that § 924(c) lacks one of the key textual hooks that has traditionally
buttressed the Supreme Court’s application of the categorical approach to statutory
residual clauses.
3
Now, in fairness, there is some textual evidence that, on balance, might be
thought to favor interpreting § 924(c)(3)(B) to incorporate the categorical
approach. But it does not, we conclude, truly compel a categorical interpretation,
especially when weighed against other textual and practical considerations.
In McGuire, we applied the categorical approach to § 924(c)(3)’s residual
clause because, we said, “of the statute’s terms.” 706 F.3d at 1336. In particular,
we noted that the residual clause’s text “asks whether [the defendant] committed
‘an offense’ . . . that ‘by its nature, involves a substantial risk that physical force
against the person or property of another may be used.’” Id. at 1336–37 (quoting
18 U.S.C. § 924(c)(3)(B)). We now re-examine whether that language—and in
31
Case: 17-10172 Date Filed: 10/04/2018 Page: 32 of 153
particular, the statute’s use of the term “offense” and the phrase “by its nature”—
mandates the categorical approach. We conclude that it does not.
a
In support of its determination that § 16’s residual clause requires the
categorical approach, the Dimaya plurality relied on the Court’s earlier observation
in Leocal that § 16(b) “directs our focus to the ‘offense’ of conviction . . . rather
than to the particular facts.” Dimaya, 138 S. Ct. at 1217 (quoting Leocal, 543 U.S.
at 7). “Simple references to a ‘conviction,’ ‘felony,’ or ‘offense,’” the plurality
observed, “are ‘read naturally’ to denote the ‘crime as generally committed.’” Id.
(quoting Nijhawan, 557 U.S. at 34).
Ovalles’s position finds some support in § 924(c)(3)’s definition of “crime
of violence,” which incorporates two of the three terms—“offense” and “felony”—
that the Dimaya plurality highlighted: “[T]he term ‘crime of violence’ means an
offense that is a felony . . . .” 18 U.S.C. § 924(c)(3). There are important
counterweights, though. First, as already explained, § 924(c) nowhere uses the
word “conviction,” the term that the Supreme Court has historically (going all the
way back to Taylor) emphasized as a key textual driver of the categorical
approach. Second, even as to “offense” and “felony,” all the plurality said in
Dimaya—echoing the Court’s earlier decision in Nijhawan—was that those terms
are “naturally” read to refer to generic crimes, not that they are necessarily so read.
32
Case: 17-10172 Date Filed: 10/04/2018 Page: 33 of 153
And indeed, on the very same page from which the Dimaya plurality took its “read
naturally” quote, Nijhawan explains “the linguistic fact” that “in ordinary speech
words such as ‘crime,’ ‘felony,’ ‘offense,’ and the like” can go either way—
“sometimes [they] refer to a generic crime . . . and sometimes [they] refer to the
specific acts in which an offender engaged on a specific occasion.” 557 U.S. at
33–34; see also id. at 32 (holding that statutory provision using the term “offense”
called for application of a conduct-based, rather than categorical, approach);
United States v. Hayes, 555 U.S. 415, 426 (2009) (same); Barrett, __ F.3d ___,
2018 WL 4288566, at *13 (emphasizing Nijhawan’s conclusion that “words such
as ‘crime,’ ‘felony,’ and ‘offense’ can be used in both respects”). 6
6
The dissent thinks it inconceivable that that the word “offense” could require the categorical
approach for cases arising under § 924(c)(3)’s elements clause and yet, at the same time, permit a
conduct-based approach for cases arising under the residual clause. See Dissenting Op. of J.
Pryor at 127, 134–35. It cites Nijhawan for the proposition that “where . . . Congress uses
similar statutory language and similar statutory structure in two adjoining provisions, it normally
intends similar interpretations”—and from that premise reasons that because the term “offense”
supports application of the categorical approach to the elements clause, it “must” do so with
respect to the residual clause, as well. Id. at 26 (quoting Nijhawan, 557 U.S. at 39). But
Nijhawan itself refutes the dissent’s position. First, and most obviously, the dissent says almost
nothing in response to the Nijhawan Court’s explanation of “the linguistic fact”—quoted in text
above—that “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.” 557 U.S. at 33–34. Second, and more deeply, the
dissent ignores the fact that in his opinion for the Court, Justice Breyer marched methodically
through a number of adjacent statutory provisions that use the word “offense” to describe the
underlying crimes and concluded that in some of them the “offense” should be established
categorically, see Nijhawan, 557 U.S. at 37 (citing, e.g., 8 U.S.C. § 1101(a)(43)(E), (H), (I), and
(J)), while in others the “offense” could be demonstrated through attention to the underlying
conduct and circumstances, see id. at 37–38 (citing, e.g., 8 U.S.C. § 1101(a)(43)(K)(ii), (M)(ii),
(N), and (P)). “The upshot” here is the same as in Nijhawan: The terms “offense” and “felony”
33
Case: 17-10172 Date Filed: 10/04/2018 Page: 34 of 153
All things considered, therefore, § 924(c)(3)’s use of the terms “offense” and
“felony”―particularly when combined with the absence of the word
“conviction”―would be a pretty thin reed on which to base a conclusion that the
residual clause requires the categorical approach.
b
The strongest piece of evidence in favor of applying the categorical
approach to § 924(c)(3)’s residual clause, it seems to us, is the provision’s use of
the phrase “by its nature”: “[T]he term ‘crime of violence’ means an offense that is
a felony and . . . that by its nature, involves a substantial risk that physical force
against the person or property of another may be used in the course of committing
the offense.” 18 U.S.C. § 924(c)(3)(B) (emphasis added).
In Leocal, the Court relied in part on § 16(b)’s use of the same “by its
nature” phrase to conclude that the statute “requires us to look to the elements and
the nature of the offense of conviction, rather than to the particular facts relating to
petitioner’s crime.” 543 U.S. at 7. The plurality in Dimaya likewise pointed to the
“by its nature” language—at least as a secondary consideration, saying that it made
the case for applying the categorical approach to § 16’s residual clause “all the
clearer.” 138 S. Ct. at 1217. Quoting Webster’s Third New International
do not have invariable meanings that—all other considerations notwithstanding—always and
everywhere require the categorical approach. 557 U.S. at 38.
34
Case: 17-10172 Date Filed: 10/04/2018 Page: 35 of 153
Dictionary for the proposition that “[a]n offense’s ‘nature’ means its ‘normal and
characteristic quality,’” the Dimaya plurality reasoned that “§ 16(b) tells courts to
figure out what an offense normally—or, as we have repeatedly said,
‘ordinarily’—entails, not what happened to occur on one occasion.” Id. at 1217–
18 (internal citation omitted).
That is undoubtedly a reasonable interpretation of § 16(b)’s language—
which, again, § 924(c)(3)’s residual clause mirrors. But importantly here—where
the constitutional-doubt canon is in play—it is not a necessary interpretation.
There are other reasonable understandings—especially of § 924(c)(3)(B), with
respect to which other interpretive considerations point in the other direction.
Webster’s Third, for instance—the same dictionary that the Dimaya plurality cited
in support of its categorical-approach interpretation of the “by its nature” language,
alternatively defines the word “nature” to mean “the essential character or
constitution of something.” Webster’s Third New International Dictionary 1507
(2002). The Oxford Dictionary of English similarly defines “nature” as “the basic
or inherent features, character, or qualities of something.” Oxford Dictionary of
English 1183 (3d ed. 2010). It seems to us at the very least plausible that the
“something[s]” to which the term “nature” alludes could be particular acts rather
than (or in addition to) the “judge-imagined abstraction[s],” Johnson, 135 S. Ct. at
2558, that underlie the categorical approach. See Barrett, __ F.3d ___, 2018 WL
35
Case: 17-10172 Date Filed: 10/04/2018 Page: 36 of 153
4288566, at *13 (“[N]othing in these definitions indicates whether the offense
whose inherent characteristics are to be considered is the generic crime or the
particular one charged.”).
So, as Justice Thomas noted in Dimaya, “[o]n the one hand, the statute
might refer to the metaphysical ‘nature’ of the offense and ask whether it ordinarily
involves a substantial risk of physical force.” Dimaya, 138 S. Ct. at 1254
(Thomas, J., dissenting). So too, though, “[o]n the other hand, the statute might
refer to the underlying facts of the offense that the offender committed; the words
‘by its nature,’ ‘substantial risk,’ and ‘may’ would mean only that an offender who
engages in risky conduct cannot benefit from the fortuitous fact that physical force
was not actually used during his offense.” Id. “The text can bear either
interpretation,” and “[i]t is entirely natural to use words like ‘nature’ . . . to refer to
an offender’s actual underlying conduct.” Id.
To be clear, it’s no answer to say, “Sure, but Justice Thomas lost in
Dimaya.” As an initial matter, he was objecting there to a plurality’s (not a
majority’s) interpretation—and in particular its interpretation of a different statute,
§ 16(b), that lacks many of the textual, contextual, and practical features that we
conclude permit a conduct-based interpretation of § 924(c)(3)’s residual clause.
Moreover, and in any event, Justice Thomas’s linguistic observation about the
alternative meanings of the word “nature” remains—and indeed, finds support in
36
Case: 17-10172 Date Filed: 10/04/2018 Page: 37 of 153
dueling dictionary definitions. Especially in light of the inapplicability of other
reasons for applying the categorical approach to § 924(c)(3)(B), we simply aren’t
convinced that the phrase “by its nature” requires application of the categorical
approach here.
4
In addition to focusing on what the controlling statutes say in assessing the
categorical-approach issue, the Supreme Court has emphasized what they don’t
say. In Dimaya, for instance, the plurality reasoned that “the absence” from § 16
“of terms alluding to a crime’s circumstances, or its commission, makes a
[conduct]-based interpretation an uncomfortable fit.” 138 S. Ct. at 1218.
But again, § 924(c) is different. Not only (as already explained) does the
statute’s operative provision refer exclusively to conduct, but its definitional
provision (i.e., the residual clause itself) also contains conduct-based
language―namely, its requirement that the risk of force arise “in the course of
committing the offense.” 18 U.S.C. § 924(c)(3)(B).
5
Textual indicia aside, the Supreme Court has also emphasized practical
considerations in deciding between categorical and conduct-based interpretations.
As already explained, in initially devising the categorical approach in Taylor—and
thereafter applying it in Johnson and Dimaya—the Supreme Court underscored the
37
Case: 17-10172 Date Filed: 10/04/2018 Page: 38 of 153
“utter impracticability” of applying a conduct-based approach retrospectively to
determining the violence of prior crimes. E.g., Johnson, 135 S. Ct. at 2562. In
particular, the Court in Taylor fretted about the prospect that mounds of evidence
would need to be introduced at sentencing in order to reconstruct the circumstances
underlying long-since-passed convictions—potentially turning sentencing
proceedings into de facto mini-trials. See 495 U.S. at 601–02. That “look-back”
concern (our term, not the Supreme Court’s) has continued to animate the Court’s
application of a categorical approach in the ACCA and § 16 contexts. As the
plurality summarized in Dimaya: “This Court has often described the daunting
difficulties of accurately ‘reconstruct[ing],’ often many years later, ‘the conduct
underlying [a] conviction.’” 138 S. Ct. at 1218 (quoting Johnson, 135 S. Ct. at
2562, and citing Taylor, 495 U.S. at 601–02); see also Barrett, __ F.3d ___, 2018
WL 4288566, at *12 (“[T]he mandate for a categorical approach to residual
definitions of violent crimes has developed in a singular context: judicial
identifications of what crimes (most often, state crimes) of prior conviction fit
federal definitions of violent crimes so as to expose a defendant to enhanced
penalties or other adverse consequences in subsequent federal proceedings.”).
Importantly, the look-back problem doesn’t arise with respect to § 924(c),
which serves an altogether different function from the statutes at issue in Johnson
and Dimaya and operates differently in order to achieve that function. The ACCA
38
Case: 17-10172 Date Filed: 10/04/2018 Page: 39 of 153
identifies “previous convictions” for the purpose of applying a recidivism-based
sentencing enhancement to three-time felons who later possess firearms in
violation of 18 U.S.C. § 922(g). See 18 U.S.C. § 924(e)(1) (emphasis added).
Similarly, § 16(b)―as incorporated by the INA―classifies certain prior
convictions as “crime[s] of violence” for the purpose of rendering aliens
removable. See 18 U.S.C. § 16; 8 U.S.C. § 1101(a)(43)(F); 8 U.S.C.
§ 1227(a)(2)(A)(iii). 7 Section 924(c), by contrast, operates entirely in the
present—it creates a new and distinct offense for any person who “during and in
relation to any crime of violence ... uses or carries a firearm, or who, in furtherance
of any such crime, possesses a firearm.” 18 U.S.C. § 924(c)(1)(A). So, unlike in
the ACCA and § 16 contexts—where courts have to look backwards in time to
consider past crimes remote from (and wholly unconnected to) the charged
7
A point of clarification: The dissent charges—as if it were a bad thing—that our opinion
“focuses solely on § 16’s incorporation into the INA.” Dissenting Op. of J. Pryor at 110; see
also id. at 123 n.8. But of course it does—by design and with good reason. We have so
“qualif[ied our] references to § 16(b),” id. at 110, because Dimaya’s holding is likewise limited.
See 138 S. Ct. at 1210–12, 1213–16, 1223. Dimaya’s reasoning only covers—and, frankly, only
makes sense in the context of—§16(b)’s incorporation into the INA. Think about it: If the Court
had meant to impose the categorical approach on all of § 16(b)’s applications—even those in
which the incorporating statutes address contemporaneous crimes—then why would the plurality
have so heavily emphasized the look-back problem and the “daunting difficulties of
‘reconstructing’” prior convictions? 138 S. Ct. at 1218. Perhaps even clearer is crucial-fifth-
vote-caster Justice Gorsuch’s insistence that he certainly wasn’t prepared to venture beyond §
16(b)’s incorporation into the INA. See id. at 1232–33 (Gorsuch, J., concurring in part and
concurring in the judgment) (emphasizing that he “remain[s] open to different arguments about
[Supreme Court] precedent and the proper reading of language like” that found in § 16(b), and
that he “would address them in another case, whether involving the INA or a different statute”).
So yes, our focus is trained on § 16(b) as incorporated into the INA—just as the Dimaya
plurality’s and Justice Gorsuch’s were.
39
Case: 17-10172 Date Filed: 10/04/2018 Page: 40 of 153
offense, § 924(c)(3)’s definition of a “crime of violence” is never applied to an
unrelated prior crime or conviction. Instead, in § 924(c) cases, the firearms offense
and the predicate “crime of violence” go hand-in-hand; they inherently arise out of
the same event. By dint of the statute’s plain language, the gun-related conduct
must occur “during,” “in relation to,” or “in furtherance of” the crime of violence,
and with respect to that underlying offense the actionable risk of force must occur
specifically “in the course of committing” it. In short, it’s all one big ball of
wax—the crimes are typically (as here) charged in the same indictment, and if they
are tried, they are considered by the same jury. The “utter impracticability” that
Taylor, Johnson, and Dimaya identified—what we have called the look-back
problem—simply isn’t an issue. See Barrett, __ F.3d ___, 2018 WL 4288566, at
*12 (“Section 924(c)(3) . . . is not concerned with prior convictions. It pertains
only to § 924(c)(1) crimes of pending prosecution.”).
6
Relatedly, echoing the earlier decision in Taylor, the Dimaya plurality
acknowledged that the Court “adopted the categorical approach in part to avoid the
Sixth Amendment concerns that would arise from sentencing courts’ making
findings of fact that properly belong to juries.” 138 S. Ct. at 1217 (internal
quotation marks and citation omitted). Its point was that in reconstructing the
circumstances underlying a prior crime in order to assess its risk of violence, a
40
Case: 17-10172 Date Filed: 10/04/2018 Page: 41 of 153
reviewing court could well run afoul of the rule that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt,” Apprendi, 530 U.S. at 490. See Taylor, 495 U.S. at 601 (expressing
concern that judicial factfinding during a sentencing hearing about the real-world
facts of crimes that led to prior convictions could “abridg[e a defendant’s] right to
a jury trial”).
Yet again, that isn’t a concern here. For starters, because the jury in a §
924(c) case—unlike in, say, an ACCA case—is considering contemporaneous gun-
related and predicate offenses, its role already necessarily entails consideration of
the entire course of conduct charged as the underlying “crime of violence.”
Moreover, and significantly, the government here has conceded that whether the
defendant’s predicate offense constitutes a “crime of violence” within the meaning
of § 924(c)(3)’s residual clause should be treated as a mixed question of fact and
law to be resolved by a jury. See Appellee’s En Banc Br. at 33–34 (citing United
States v. Gaudin, 515 U.S. 506, 509–10, 522–23 (1995)). In particular, the
government admits that under a conduct-based approach, a § 924(c)(3)(B)
conviction requires a jury separately to find (or the defendant to admit through a
plea) not only (1) that the defendant committed the underlying federal offense, (2)
that the defendant used, carried, or possessed a firearm, and (3) that any use,
41
Case: 17-10172 Date Filed: 10/04/2018 Page: 42 of 153
carriage, or possession of the firearm occurred during and in relation to (or in
furtherance of) the federal offense, but also—and importantly—(4) that the federal
offense was in fact a “crime of violence.” As has the Supreme Court in similar
circumstances, we conclude that the government’s concession that, absent a plea, it
must prove and a jury must find all four elements―including that the underlying
offense qualifies as a “crime of violence”―“eliminat[es] any constitutional
concern.” Nijhawan, 557 U.S. at 40; see also Barrett, __ F.3d ___, 2018 WL
4288566, at *12 (“The Sixth Amendment concern is avoided because the trial jury,
in deciding whether a defendant is guilty of using a firearm ‘during and in relation
to any crime of violence,’ 18 U.S.C. § 924(c)(1)(A), can decide whether the
charged predicate offense is a crime of violence as defined in § 924(c)(3)(B), i.e.,
whether the felony offense ‘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).”).8
8
We are unpersuaded by Ovalles’s assertion (which the dissent echoes, see Dissenting Op. of J.
Pryor at 148–49) that a conduct-based approach would require hopelessly complex and
ineffective jury instructions about the crime-of-violence element. The district court can simply
instruct jurors that they must find beyond a reasonable doubt that the underlying offense―the
defendant’s commission of which they must already have found in order to satisfy the first
element―“involve[d] a substantial risk that physical force against the person or property of
another may [have] be[en] used in the course of committing the offense.” 18 U.S.C. §
924(c)(3)(B). There is nothing remarkable about asking jurors to make that sort of risk
determination—and, if necessary, requiring judges to instruct jurors on the meaning of terms like
“substantial” and “physical force.” That’s exactly how similar questions have been resolved for
centuries and are resolved every day in courts throughout the country. See Gaudin, 515 U.S. at
511–15; see also, e.g., Ala. Code § 13A-6-2(a)(2) (“A person commits the crime of murder if he
42
Case: 17-10172 Date Filed: 10/04/2018 Page: 43 of 153
* * *
So where does all of this leave us? With something of a mixed bag, frankly.
While some of the factors to which the Supreme Court has pointed in adopting and
applying the categorical approach might be thought (on balance) to favor a similar
interpretation of § 924(c)(3)(B), others cut pretty decisively in the opposite
direction, toward a conduct-based approach. And in constitutional-doubt land, the
tie (or the toss-up, or even the shoulder-shrug) goes to the statute-saving option—
which, here, is the conduct-based interpretation. So to be clear, we needn’t—and
don’t—conclude that textual, contextual, and practical considerations compel a
conduct-based reading of § 924(c)(3)’s residual clause. Nor, for that matter, do we
even need to find that § 924(c)(3)(B) is best read to incorporate a conduct-based
approach. Reasonable minds—say, for instance, the minds of the (putatively)
or she . . . recklessly engages in conduct which creates a grave risk of death to a person other
than himself or herself, and thereby causes the death of another person.”); Conn. Gen. Stat. §
53a-112(a)(1)(A) (“A person is guilty of arson in the second degree when, with intent to destroy
or damage a building . . . he starts a fire or causes an explosion and . . . such act subjects another
person to a substantial risk of bodily injury . . . .”); Mo. Stat. § 565.120(1) (“A person commits
the offense of kidnapping in the second degree if he or she knowingly restrains another
unlawfully and without consent so as to interfere substantially with his or her liberty and exposes
him or her to a substantial risk of serious physical injury.”).
Nor are we particularly troubled by Ovalles’s argument that allowing jurors to consider a
defendant’s use or possession of a firearm will inevitably transform every underlying offense
into a “crime of violence” within the meaning of § 924(c)(3). The government concedes that it
must separately prove—and that jurors should be charged that they must separately find—(1)
that the federal offense was “a crime of violence” and (2) that the defendant used, carried, or
possessed a firearm in the course of committing the underlying offense. District courts should
caution jurors that they may not find that the underlying offense involved a substantial risk of
physical force solely because the defendant possessed a gun.
43
Case: 17-10172 Date Filed: 10/04/2018 Page: 44 of 153
reasonable judges who join this opinion—can and will disagree about that. It is
enough for us to conclude—as we think is indisputable—that § 924(c)(3)(B) is at
least “plausibl[y]” (or “fairly possibl[y]”) understood to embody the conduct-based
approach. See Clark, 543 U.S. at 381; St. Cyr, 533 U.S. at 300.9 Accordingly, it is
our “plain duty” to adopt the conduct-based approach as the proper interpretation
of § 924(c)(3)’s residual clause. See Delaware & Hudson Co., 213 U.S. at 407. 10
We therefore overrule McGuire to the extent that it requires application of
the categorical approach to determine whether an offense constitutes a “crime of
violence” within the meaning of § 924(c)(3)(B) and hold that the crime-of-violence
determination should be made, instead, using a conduct-based approach.
9
Needless to say, we reject the dissent’s charge that we have “reach[ed]” out to “effectively
rewrite[]” § 924(c)(3)’s residual clause in order “to avoid having to strike it down.” Dissenting
Op. of J. Pryor at 124, 137. To the contrary, we have simply acknowledged that the interpretive
question is a close one and, accordingly—and pursuant to time-honored canons of
construction—saved it from the trash heap. It is the dissent, by contrast, that doggedly insists on
the one and only reading of § 924(c)(3)(B) that guarantees its invalidation.
10
One brief word in conclusion: The dissent repeatedly criticizes our reliance on what it calls
“extra-textual factors” in determining whether § 924(c)(3)(B) can plausibly be read to bear a
conduct-based interpretation. In particular, the dissent objects to the first, fifth, and sixth factors
examined above. See Dissenting Op. of J. Pryor at 103, 119–20, 124, 139–40, 143–44. The
reason, the dissent says, is that under the Supreme Court’s recent decision in Jennings v.
Rodriguez, 138 S. Ct. 830 (2018), practical considerations are categorically (pun intended) off-
limits in determining whether a statute can reasonably be interpreted in a particular manner. The
argument is difficult to discern, frankly, given that Dimaya—in which the plurality emphasized
the very same considerations—post-dates Jennings by almost two months. In any event, for
better or worse, these are the considerations that the Supreme Court has highlighted, and as the
dissent says, “[w]e are not free to ignore the Supreme Court’s decisions.” Dissenting Op. of J.
Pryor at 126 n.9. See also, e.g., Barrett, __ F.3d ___, 2018 WL 4288566, at *9–14 (evaluating
the same factors in holding that § 924(c)(3)’s residual clause should be interpreted to incorporate
the conduct-based approach).
44
Case: 17-10172 Date Filed: 10/04/2018 Page: 45 of 153
IV
Having jettisoned the categorical interpretation in favor of the conduct-based
approach for cases arising under § 924(c)(3)’s residual clause, we can make quick
work of the contention that the clause is unconstitutionally vague in the light of
Dimaya. It is not. The Supreme Court has repeatedly explained—and again all
here agree—that the vagueness problem that plagued the ACCA and § 16, and that
is asserted here, is a function of the “speculative,” “idealized,” “abstract” inquiries
required by the categorical approach. Johnson, 135 S. Ct. at 2557–58, 2561.
Accordingly, if § 924(c)(3)(B) is interpreted to embody a conduct-based
approach—as we have held it should be—there is no reason whatsoever to “‘doubt
[its] constitutionality.’” Dimaya, 138 S. Ct. at 1214 (quoting Johnson, 135 S. Ct.
at 2561); see also Barrett, __ F.3d ___, 2018 WL 4288566, at *10 (emphasizing
that under Johnson and Dimaya, “no constitutional vagueness inheres in a
substantial-risk definition of a crime of violence when applied to case-specific
conduct”).
V
That leaves us only to apply § 924(c)(3)(B)’s conduct-based approach to
Ovalles’s case. Given the stipulated facts before us—embodied in a written plea
agreement and a detailed colloquy—doing so is remarkably straightforward.
It is common ground here that in order to convict Ovalles on the § 924(c)
45
Case: 17-10172 Date Filed: 10/04/2018 Page: 46 of 153
charge, the government would need to prove (or Ovalles would need to plead to)
four distinct elements: (1) that Ovalles actually committed the underlying federal
offense—here, the attempted carjacking; (2) that the attempted-carjacking offense
constitutes a “crime of violence” within the meaning of § 924(c)(3); (3) that
Ovalles knowingly used, carried, or possessed a firearm; and (4) that any use or
carriage of the firearm occurred during and in relation to, or that any possession of
the firearm was in furtherance of, the attempted carjacking. See 18 U.S.C.
§ 924(c)(1)(A). The only element in dispute here is the second: Did Ovalles’s
attempted-carjacking offense, as she has admitted it actually occurred, constitute a
“crime of violence”—i.e., did her own acknowledged conduct “involve[] a
substantial risk that physical force against the person or property of another may be
used in the course of committing the offense”? Easy. Of course it did.
As it pertained to the attempted-carjacking count, the information charged
Ovalles with “attempt[ing] to take a motor vehicle . . . from the person and
presence of another, by force, violence and intimidation” with “the intent to cause
death and serious bodily harm.” Ovalles then executed a written plea agreement
acknowledging that she understood each charge in the information—including the
attempted-carjacking charge—and that “she [was] pleading guilty because she is in
fact guilty of the crimes [as] charged.” If attempting to steal a car “by force,
violence and intimidation” and with “the intent to cause death and serious bodily
46
Case: 17-10172 Date Filed: 10/04/2018 Page: 47 of 153
harm” (as Ovalles has admitted she did) doesn’t involve a “substantial risk” that
physical force may be used, then it’s hard to imagine what does.
Here, though, there’s no need for imagination—the real-life details of
Ovalles’s crime, all of which she has admitted, confirm it. We won’t restate in full
the government’s factual proffer recounting Ovalles’s involvement in the three-day
carjacking spree. Suffice it to say that, in general, the proffer demonstrated that
Ovalles and her co-conspirators robbed a grocery store, successfully carjacked
three automobiles by force, and attempted to carjack a fourth. With respect to the
attempted carjacking, in particular—which, again, serves as the predicate offense
for Ovalles’s § 924(c) conviction—the proffer detailed that Ovalles and her co-
conspirators approached a family getting out of their minivan, demanded the keys,
hit the family’s 13-year-old child in the face with a baseball bat, and then, in
making their escape, fired an AK-47 assault rifle at the family and a Good
Samaritan who had come to their aid. See supra at 6–7.
Especially when layered on top of Ovalles’s admission to the overtly violent
charge in the information, the government’s detailed factual proffer―with which
Ovalles repeatedly said she had no “material disagreement”—leads inexorably to
the conclusion that the attempted carjacking at issue here constitutes a “crime of
violence” within the meaning of § 924(c)(3)(B). Based on the facts to which she
has expressly stipulated, there simply can be no serious dispute that Ovalles
47
Case: 17-10172 Date Filed: 10/04/2018 Page: 48 of 153
recognized that her conduct posed a very real “risk” that physical force “may” be
used―just, as it turns out, it was.
VI
Accordingly, we hold as follows:
1. The question whether a predicate offense constitutes a “crime of
violence” within the meaning of 18 U.S.C. § 924(c)(3)(B) should be determined
using a conduct-based approach that accounts for the actual, real-world facts of the
crime’s commission, rather than a categorical approach.
2. To the extent that our decision in United States v. McGuire, 706 F.3d
1333 (11th Cir. 2013), required use of the categorical approach in making the
crime-of-violence determination under § 924(c)(3)(B), it is overruled.
3. As interpreted to embody a conduct-based approach, § 924(c)(3)(B) is
not unconstitutionally vague.
4. In light of the particular circumstances of its commission, all of which
Ovalles has expressly admitted, her attempted-carjacking offense was a “crime of
violence” within the meaning of § 924(c)(3)(B).
The case is REMANDED to the panel for proceedings consistent with this
opinion.
48
Case: 17-10172 Date Filed: 10/04/2018 Page: 49 of 153
WILLIAM PRYOR, Circuit Judge, joined by ED CARNES, Chief Judge, and
TJOFLAT, NEWSOM, and BRANCH, Circuit Judges, concurring:
How did we ever reach the point where this Court, sitting en banc, must
debate whether a carjacking in which an assailant struck a 13-year-old girl in the
mouth with a baseball bat and a cohort fired an AK-47 at her family is a crime of
violence? It’s nuts. And Congress needs to act to end this ongoing judicial charade.
I join the majority opinion in full, but I write separately to explain why our
resolution of this appeal forecasts how Congress should address the vexing issue of
how to punish violent recidivists under laws like the Armed Career Criminal Act 1:
by restoring the traditional role of the jury. The caselaw about how to punish
recidivists has confounded the federal courts for decades and has made the
resolution of this appeal tricky, but our decision also suggests a way out of the
mess. Although our decision involves a contemporaneous crime and not a prior
conviction, our conclusion that a jury may make findings about a defendant’s
violent conduct applies with equal force to recidivist statutes. Indeed, the modern
abandonment of the jury’s traditional role of making findings about prior
convictions has created more problems than it has solved.
1
18 U.S.C. § 924(e).
49
Case: 17-10172 Date Filed: 10/04/2018 Page: 50 of 153
A. Recidivist Wars
Empirical research proves that Congress has good reason to punish
recidivists with long sentences of imprisonment. A recent study by the United
States Sentencing Commission found that “[c]areer offenders, as a group, tend to
recidivate at a higher rate than non-career offenders.”2 More specifically, “almost
two-thirds . . . of career offenders released between 2004 and 2006 were
rearrested” in the eight-year period after their release, while just under “one-
half . . . of non-career offenders released in 2005 were rearrested” in the same
period.3 And a defendant’s criminal history as calculated under the Sentencing
Guidelines is a strong predictor of future encounters with the justice system. 4
Offenders without any criminal history points are rearrested at a rate of 30.2
percent. 5 This rate jumps to 63.3 percent for offenders with five criminal history
points and catapults to 81.5 percent for offenders with more than 10 criminal
history points.6 Relatedly, offenders with the lowest criminal history category are
2
U.S. Sentencing Comm’n, Report to the Congress: Career Offender Sentencing Enhancements
39 (2016).
3
Id.
4
See U.S. Sentencing Comm’n, Recidivism Among Federal Offenders: A Comprehensive
Overview 5, 18–19, 27 (2016).
5
Id. at 18.
6
Id.
50
Case: 17-10172 Date Filed: 10/04/2018 Page: 51 of 153
rearrested at a rate of 33.8 percent, while offenders with the highest criminal
history category are rearrested at a rate of 80.1 percent.7
Among career offenders, violent offenders, not surprisingly, pose the
greatest risk to the public. For example, “drug trafficking only” career offenders
recidivate at a rate of 54.4 percent, while “violent [crime] only” career offenders
recidivate at a rate of 69 percent. 8 The median drug trafficker recidivates after 26
months, while the median violent offender recidivates after only 14 months. 9 The
median drug trafficker commits two “[r]ecidivism [e]vents,” while the median
violent offender commits three. 10 And when a drug trafficker reoffends, he is most
likely to commit another drug trafficking offense, while a violent offender is most
likely to commit robbery. 11 Indeed, even “mixed” career offenders who have at
least one violent offense12 recidivate at a rate of 69.4 percent and are most likely to
commit assault when they recidivate.13
Past offenses involving a firearm are also a strong predictor of future
crimes. 14 For example, “[o]ffenders whose federal offense involved firearms [are]
7
Id. at 19.
8
U.S. Sentencing Comm’n, Report to the Congress, supra note 2, at 42.
9
Id.
10
Id.
11
Id.
12
See id. at 38.
13
Id. at 42.
14
See U.S. Sentencing Comm’n, Recidivism Among Federal Offenders, supra note 4, at 20.
51
Case: 17-10172 Date Filed: 10/04/2018 Page: 52 of 153
most likely to be rearrested” at a rate of 68.3 percent, and “[o]ffenders who
received an enhanced sentence for a weapon . . . ha[ve] higher recidivism rates
than other offenders.”15 In short, criminals with an affinity for guns and violence
are the least likely to change their ways. 16
That recidivists merit longer sentences is hardly a new discovery. Over a
century ago, the Supreme Court explained that “[t]he propriety of inflicting severer
punishment upon old offenders has long been recognized in this country and in
England.”17 Accordingly, “[s]tatutes providing for such increased punishment were
enacted in Virginia and New York as early as 1796, and in Massachusetts in 1804;
and there have been numerous acts of similar import in many states.”18
In more recent years, Congress has moved to protect public safety by
enacting federal crimes that provide lengthy terms of imprisonment for
15
Id.
16
Id.; see also U.S. Sentencing Comm’n, The Past Predicts the Future: Criminal History and
Recidivism of Federal Offenders 12 (2017) (“Offenders convicted of a firearms offense had the
highest rearrest rate (68.4%]), followed by offenders convicted of a violent offense (64.1%)
. . . .”).
17
Graham v. West Virginia, 224 U.S. 616, 623 (1912).
18
Id. (collecting cases); see also Spencer v. Texas, 385 U.S. 554, 566 n.9 (1967) (citing data
“that 62% of prisoners committed to federal prisons in the year ending June 30, 1965, had been
previously committed”); People v. Gowasky, 155 N.E. 737, 739 (N.Y. 1927) (reviewing the
history of recidivism statutes); Nancy J. King, Sentencing and Prior Convictions: The Past, the
Future, and the End of the Prior-Conviction Exception to Apprendi, 97 Marq. L. Rev. 523, 533–
34 & nn.52–62 (2014).
52
Case: 17-10172 Date Filed: 10/04/2018 Page: 53 of 153
recidivists.19 The Armed Career Criminal Act, for example, provides a 15-year
mandatory minimum sentence for a criminal convicted of unlawfully possessing a
firearm or ammunition who has “three previous convictions . . . for a violent felony
or serious drug offense.” 20 The Act defines a “serious drug offense” in terms of
convictions under certain federal and state laws that provide a maximum sentence
of 10 or more years of imprisonment. 21 And it defines a “violent felony” to include
crimes that (1) have “the use, attempted use, or threatened use of physical force” as
an “element”22—the so-called “elements clause”; (2) are “burglary, arson, or
extortion, [or] involve[] use of explosives”23—the “enumerated offenses clause”;
or (3) “otherwise . . . present[] a serious potential risk of physical injury to
another” 24—the “residual clause.”
B. The Residual Clause Strikes Back
As thoroughly chronicled in the majority opinion, years of litigation about
federal recidivist statutes have weakened the penalties created by Congress. But
19
See, e.g., H.R. Rep. No. 98-1073, at 2 (1984) (relying on “extensive studies on recidivism” to
justify an earlier version of the Armed Career Criminal Act). See generally U.S. Sentencing
Comm’n, Mandatory Minimum Penalties for Firearms Offenses in the Federal Criminal Justice
System (2018).
20
18 U.S.C. § 924(e)(1).
21
Id. § 924(e)(2)(A).
22
Id. § 924(e)(2)(B)(i).
23
Id. § 924(e)(2)(B)(ii).
24
Id., invalidated by Johnson v. United States, 135 S. Ct. 2551 (2015).
53
Case: 17-10172 Date Filed: 10/04/2018 Page: 54 of 153
these developments have not benefited all offenders. Recidivist drug traffickers
who possess a firearm are still subject to the 15-year mandatory minimum under
the Armed Career Criminal Act. But after the demise of the residual clause in
Johnson v. United States,25 violent recidivists who possess a firearm—the ones
akin to the violent career offenders who recidivate at a rate nearly 15 percentage
points higher than recidivist drug traffickers and who tend to commit violent
crimes when they do so—sometimes escape the mandatory minimum if their
earlier offenses lacked a legal “element” that involves physical force, regardless of
how the offender actually committed the offense. For example, an offender may
have been convicted of “sexual abuse in the first degree . . . by forcible
compulsion” under Alabama law for a crime that was actually violent.26 But
because the Supreme Court of Alabama has adopted a “water[ed] . . . down”
interpretation of the statute that “means that [the statute] does not categorically
include as an element the use, attempted use, or threatened use of physical force,”
the conviction will not count as a crime of violence because “the true facts matter
little, if at all, in this odd area of the law.”27
The same problem may exist for other offenses that can technically be
committed in nonviolent ways—but rarely, if ever, are—such as kidnapping, arson,
25
135 S. Ct. 2551 (2015).
26
Ala. Code § 13A-6-66(a)(1).
27
United States v. Davis, 875 F.3d 592, 600, 604 (11th Cir. 2017).
54
Case: 17-10172 Date Filed: 10/04/2018 Page: 55 of 153
and other sex crimes. Criminals who have committed violent crimes may escape
the mandatory minimum sentence of the Armed Career Criminal Act because
sentencing judges must “close [their] eyes” to everything but the legal definitions
of prior convictions. 28 In essence, the so-called categorical approach “divorces
what a habitual offender actually did from the punishment they are meant to
receive.”29 “The bizarre results” occasioned by this approach “are hard to grasp”
because “the doctrine is not based in reality, but rather relies on the legal fiction
that crimes are [merely] comprised of a set of elements, as opposed to the
underlying criminal conduct.”30
I do not mean to suggest that the residual clauses of the Armed Career
Criminal Act or of the federal definition of a crime of violence in recidivist
statutes 31 should have survived—at least not in their original forms that required
the sentencing judge to decide whether the offender’s criminal history qualified
him for an increased punishment. Judges have rightfully complained that the
categorical approach has taxed judicial economy. “The dockets of . . . all federal
28
Id. at 595.
29
Sheldon A. Evans, Punishing Criminals for Their Conduct: A Return to Reason for the Armed
Career Criminal Act, 70 Okla. L. Rev. 623, 626 (2018).
30
Id. at 645
31
See Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (invalidating 18 U.S.C. § 16(b) as
incorporated into the Immigration and Nationality Act for purposes of determining if an alien
was previously convicted of an aggravated felony).
55
Case: 17-10172 Date Filed: 10/04/2018 Page: 56 of 153
courts are now clogged with [ACCA] cases,” 32 and perhaps “no other area of law
has demanded more of [the courts’] resources.”33 And as the Supreme Court
explained in Johnson, the two-step process demanded by the categorical approach,
in which the sentencing judge imagined the “ordinary case” of a crime and then
decided “whether that abstraction present[ed] a serious potential risk of physical
injury,” was vague and confusing.34 The residual clause produced several circuit
splits over whether certain crimes were sufficiently violent. 35 Indeed, the justices
could not agree whether fleeing in a vehicle from law enforcement or drunk
driving qualified as violent crimes, 36 eventually leading the Supreme Court to
conclude that “trying to derive meaning from the residual clause . . . [was] a failed
enterprise.”37 And even the elements clause has created confusion, with members
of this Court disagreeing about whether crimes like attempted murder, attempted
armed robbery, robbery, aggravated assault, and felony battery are violent
crimes. 38
32
United States v. Vann, 660 F.3d 771, 787 (4th Cir. 2011) (Agee, J., concurring).
33
United States v. Aguila-Montes de Oca, 655 F.3d 915, 917 (9th Cir. 2011), abrogated by
Descamps v. United States, 570 U.S. 254 (2013).
34
135 S. Ct. at 2557.
35
See id. at 2560 (collecting cases).
36
See Sykes v. United States, 564 U.S. 1, 36 (2011) (Kagan, J., dissenting) (opining that fleeing
in a vehicle is not a violent felony); Begay v. United States, 553 U.S. 137, 156 (2008) (Alito, J.,
dissenting) (opining that drunk driving is a violent felony).
37
Johnson, 135 S. Ct. at 2560.
38
See, e.g., Hylor v. United States, ___ F.3d ____, No. 17-10856, slip op. at 10–13 (11th Cir.
July 18, 2018) (Jill Pryor, J., concurring) (opining that attempted murder and attempted armed
56
Case: 17-10172 Date Filed: 10/04/2018 Page: 57 of 153
The problems with the categorical approach also cannot necessarily be
remedied by having the sentencing judge make findings about the underlying facts
of prior convictions. The Sixth Amendment requires that, “[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury.” 39 And the specific
details of a recidivist’s past crimes go beyond the simple “fact of [his] prior
conviction.” 40 Indeed, some members of the Supreme Court have opined that,
under the Sixth Amendment, even the bare fact of a prior conviction should be
proved to a jury. 41
C. Return of the Jury
robbery are not violent felonies); United States v. Lee, 886 F.3d 1161, 1165–71 (11th Cir. 2018)
(Jordan, J., concurring) (opining that prior Eleventh Circuit decisions holding that robbery is a
violent felony were wrongly decided);United States v. Vail-Bailon, 868 F.3d 1293, 1308 (11th
Cir. 2017) (en banc) (Wilson, J., dissenting) (opining that battery is not a violent felony); Vail-
Bailon, 868 F.3d at 1315 (Rosenbaum, J., dissenting) (same); United States v. Golden, 854 F.3d
1256, 1257–60 (11th Cir. 2017) (Jill Pryor, J., concurring) (opining that a prior Eleventh Circuit
decision holding that aggravated assault is a violent felony was incorrect); In re Colon, 826 F.3d
1301, 1306–08 (11th Cir. 2016) (Martin, J., dissenting) (opining that aiding and abetting a Hobbs
Act robbery is not a crime of violence).
39
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
40
Id.; see also Mathis v. United States, 136 S. Ct. 2243, 2252 (2016) (citing “serious Sixth
Amendment concerns” about judicial factfinding); Taylor v. United States, 495 U.S. 575, 601
(1990) (expressing concern that judicial factfinding about earlier offenses would “abridg[e a
defendant’s] right to a jury trial”); King, Sentencing and Prior Convictions, supra note 18, at
550–58, 562–63 (explaining constitutional concerns about the role of judges).
41
See, e.g., Dimaya, 138 S. Ct. at 1254 (Thomas, J., dissenting) (“In my view, if the
[g]overnment wants to enhance a defendant’s sentence based on his prior convictions, it must put
those convictions in the indictment and prove them to a jury beyond a reasonable doubt.”);
Almendarez-Torres v. United States, 523 U.S. 224, 267 (1998) (Scalia, J., dissenting) (“[I]t is . . .
‘unfair,’ of course, to deprive [a] defendant of a jury determination . . . on the critical question of
[a] prior conviction.”).
57
Case: 17-10172 Date Filed: 10/04/2018 Page: 58 of 153
The combination of the need to punish violent recidivists and the problem of
judicial factfinding about prior convictions yields an obvious solution for
Congress: rewrite the Armed Career Criminal Act and other recidivist statutes to
require that the government must prove to a jury beyond a reasonable doubt that
the defendant has previously been convicted of a felony the actual commission of
which involved the use, attempted use, or threatened use of physical force against
another person. For example, in the case of a defendant with a prior conviction
under Alabama law for first-degree sexual abuse by forcible compulsion, the
prosecution could introduce evidence that the defendant in fact used violent force
to subdue his victim. This evidence might include certified charging documents,
stipulations, plea agreements, factual proffers, and verdict forms from the past
prosecution, as well as traditional evidence such as witness testimony and physical
evidence.
Tasking the jury with determining recidivism is consistent with the common
law. “Habitual offender laws like the ACCA enjoy a long tradition in this country
that dates back to colonial times.” 42 And“[a]t common law, the fact of prior
convictions had to be charged in the same indictment charging the underlying
crime . . . and submitted to the jury for determination along with that crime.” 43 In
42
Evans, Punishing Criminals for Their Conduct, supra note 29, at 628.
43
Almendarez-Torres, 523 U.S. at 261 (Scalia, J., dissenting) (collecting authorities).
58
Case: 17-10172 Date Filed: 10/04/2018 Page: 59 of 153
1967, the Supreme Court acknowledged that “[t]he common-law procedure for
applying recidivist statutes . . . , which requires allegations and proof of past
convictions in the current trial, is, of course, the simplest and best known
procedure.” 44 And earlier decisions of state courts left little doubt that “a verdict of
the jury finding the prior conviction . . . [was] essential to the power of the court to
impose the increased punishment” absent a statute that displaced the common
law. 45
“[T]he right to have a jury decide prior-offense status . . . was the law in
virtually every federal and state jurisdiction, from the Founding past World War
II.” 46 For example, a former Texas recidivism statute provided enhanced penalties
when the prosecutor proved to the jury that the offender “ha[d] been before
convicted of the same [felony] offense . . . or one of the same nature.” 47 And a jury
finding was more than a formality. Under a former Indiana statute, “the previous
convictions, sentences, and imprisonments [had to] be described specifically, and
the jury [had to] find that the defendant was convicted, sentenced, and imprisoned
44
Spencer, 385 U.S. at 566.
45
State v. Findling, 144 N.W. 142, 143 (Minn. 1913) (collecting cases); see also King,
Sentencing and Prior Convictions, supra note 18, at 566–98 (collecting extensive data on
historic state practices); Anthony M. Radice, Recidivist Procedures: Prejudice and Due Process,
53 Cornell L. Rev. 337, 341 n.19 (1968); Harold Dubroff, Note, Recidivist Procedures, 40
N.Y.U. L. Rev. 332, 333 (1965).
46
King, Sentencing and Prior Convictions, supra note 18, at 553.
47
1925 Tex. Crim. Stat. art. 62; see also Spencer, 385 U.S. at 556 n.1 (citing Tex. Penal Code
Ann. art. 62 (West 1952)); King, Sentencing and Prior Convictions, supra note 18, at 566–98
(collecting state laws).
59
Case: 17-10172 Date Filed: 10/04/2018 Page: 60 of 153
in the instances described, and not otherwise.” 48 Indeed, in Kelley v. State,49 the
Supreme Court of Indiana held that the prosecution could not rely on “a certified
transcript of a judgment . . . [that did] not describe the crime for which [the
defendant] was convicted, but merely recite[d]” that the defendant was sentenced
to between one and seven years of imprisonment. 50
The common-law method for proving prior convictions ordinarily permitted
the prosecutor to rely on a broad array of evidence if the defendant refused “to
stipulate as to the prior conviction[] and thereby relieve the State of the necessity
of . . . adducing proof before the jury of such prior convictions.”51 For example, in
Crocker v. State,52 after a defendant accused of “robbery with a prior conviction
for robbery” contested the fact of his first conviction, the prosecutor introduced
“records from the penitentiary,” “testimony of one of the officers involved in the
prior case,” and a “comparison of finger prints of the [defendant] with the finger
prints taken in connection with the prior offense.” 53 And in Dozier v. State,54 the
48
Kelley v. State, 185 N.E. 453, 455 (Ind. 1933) (quoting Burns’ Ann. Ind. Stat. § 2340 (1926)).
49
185 N.E. 453 (Ind. 1933).
50
Id. at 455; cf. Carter v. Commonwealth, 11 Ky. Op. 92, 93 (Ky. 1881) (“The fact that the
accused had been previously indicted for a felony, describing the nature of the offense, in a court
having jurisdiction, that he was assigned and pled to the indictment . . . , etc., are facts necessary
to be alleged.”).
51
Crocker v. State, 385 S.W.2d 392, 394 (Tex. Crim. App. 1964).
52
385 S.W.2d 392 (Tex. Crim. App. 1964).
53
Id. at 393.
54
318 S.W.2d 80 (Tex. Crim. App. 1958).
60
Case: 17-10172 Date Filed: 10/04/2018 Page: 61 of 153
jury was tasked with weighing “certified copies of the judgment and sentence,”
“records of the Texas Department of Correction, including fingerprints,” and
“expert testimony identifying [the fingerprints] as identical with those of the
[defendant].” 55 Factfinding by juries was considered essential to recidivism
statutes.
And still today, there are states that require factfinding by juries to sentence
an offender under their own recidivist statutes. Under Indiana’s current habitual
offender statute, 56 “habitual offender proceedings are treated as substantive
criminal trials. The State must prove the allegations beyond a reasonable doubt” to
a jury. 57 The test for determining whether a prior conviction from another
jurisdiction qualifies as a predicate offense under Indiana’s statute does not turn on
the elements of the offense, but on whether the acts that resulted in the out-of-state
conviction would have constituted a predicate offense “if they had been committed
in Indiana.”58
California also uses a conduct-based approach in cases in which it is not
possible to determine whether an offense committed in another jurisdiction would
qualify as a predicate felony through an inspection of the elements of the offense
55
Id. at 82.
56
Ind. Code § 35-50-2–8.
57
Moore v. State, 769 N.E.2d 1141, 1146 (Ind. Ct. App. 2002); see also Seay v. State, 698
N.E.2d 732, 733–34 (Ind. 1998) (describing the role of the jury in Indiana habitual-offender
proceedings).
58
Weiss v. State, 903 N.E.2d 557, 561 (Ind. Ct. App. 2009).
61
Case: 17-10172 Date Filed: 10/04/2018 Page: 62 of 153
alone.59 Although California law permits judges to make the factual findings
required to determine that the conduct that resulted in an out-of-state conviction
would have been a predicate offense if committed in the state, a California court
“may not rely on its own independent review of record evidence to determine what
conduct ‘realistically’ led to the defendant's conviction,” but must instead rely on
“those facts that were already necessarily found by a prior jury in rendering a
guilty verdict or admitted by the defendant in entering a guilty plea.” 60
Within our own Circuit, Alabama 61 and Georgia62 likewise require the state
to prove that the conduct underlying an offender’s prior out-of-state conviction
would have been a predicate offense under the state’s recidivist statute if
committed in the state, although both Alabama 63 and Georgia64 permit judges to
make the requisite factual findings. So in advocating a return to the jury’s
traditional role in determining recidivism at the federal level, I am not advancing a
59
See People v. Gallardo, 407 P.3d 55, 57 (Cal. 2017).
60
Id.
61
See Skinner v. State, 987 So. 2d 1172, 1175 (Ala. Crim. App. 2006) (“In determining whether
an out-of-state conviction will be used to enhance punishment pursuant to the [Alabama
habitual-offender statute], the conduct upon which the foreign conviction is based must be
considered and not the foreign jurisdiction’s treatment of that conduct.”).
62
See Walker v. Hale, 657 S.E.2d 227, 230 (Ga. 2008) (holding that an out-of-state crime
qualifies as a predicate offense under Georgia’s recidivist statute if “the same offense, if
committed in this State, would constitute a serious violent felony” as defined under the statute).
63
See Ala. R. Crim. P. 26.6(a) (“Except in death penalty cases and in cases involving offenses
committed prior to January 1, 1980, the judge shall impose the sentence in all cases.”).
64
See Brown v. State, 670 S.E.2d 400, 402 (Ga. 2008) (holding that the right to trial by jury is
not violated by the Georgia repeat-offender statute’s requirement that the judge make findings of
prior convictions).
62
Case: 17-10172 Date Filed: 10/04/2018 Page: 63 of 153
proposal untested by contemporary experience. I am instead proposing a solution
that has proved workable in practice in several states.
Some may object that jurors’ knowledge of past convictions will lead them
to engage in propensity reasoning,65 but the Supreme Court long ago held that the
“use of prior convictions in [a] . . . criminal trial . . . [is not] so egregiously unfair
upon the issue of guilt or innocence as to offend” the guarantee of due process of
law.66 In any event, the details of past convictions are unlikely to reach the jury. 67
To begin, about 97 percent of federal prosecutions end in guilty pleas.68 And those
few defendants who go to trial can stipulate to their past convictions and limit any
proceedings to the charged offenses.69
65
See, e.g., Dubroff, supra note 45, at 337 (citing the “prejudice engendered by proving guilt for
the present offense simultaneously with the issue of recidivism” under the common-law method).
66
Spencer, 385 U.S. at 559; see also id. at 560 (“Such statutes . . . have been sustained in this
Court on several occasions against contentions that they violate constitutional strictures dealing
with double jeopardy, ex post facto laws, cruel and unusual punishment, due process, equal
protection, and privileges and immunities.”).
67
See generally Nancy J. King, Juries and Prior Convictions: Managing the Demise of the Prior
Conviction Exception to Apprendi, 67 SMU L. Rev. 577 (2014) (outlining procedures that
preserve the right to a jury trial in recidivism proceedings while limiting prejudice to
defendants).
68
See U.S. Sentencing Comm’n, 2017 Sourcebook of Federal Sentencing Statistics fig. C,
https://www.ussc.gov/research/sourcebook-2017.
69
See Pitcock v. State, 367 S.W.2d 864, 865 (Tex. Crim. App. 1963) (explaining that under a
recidivism statute, “should the appellant again offer to fully stipulate as to the prior conviction,
the state should not be allowed to introduce evidence on this point”), overruled on other grounds
by Lehman v. State, 792 S.W.2d 82 (Tex. Crim. App. 1990) (en banc); cf. Old Chief v. United
States, 519 U.S. 172, 174 (1997) (explaining that in a federal prosecution of a felon for
possession of a firearm, 18 U.S.C. § 922(g)(1), a district court abuses its discretion if it allows
the government to “prove the element of prior conviction” when a defendant “offer[s] to concede
th[at] fact”).
63
Case: 17-10172 Date Filed: 10/04/2018 Page: 64 of 153
The supposed unfairness to defendants of admitting proof of prior
convictions is the same concern that motivated the failed experiment of allowing
judges to assess recidivism. When the Supreme Court decided Spencer v. Texas 70
in 1967 and upheld the common-law jury method against a challenge under the
Fourteenth Amendment,71 the majority opined that it “might well agree” that other
methods of assessing recidivism, such as “leaving that question to the court,”
would be “faire[r]” than placing a defendant’s criminal history before the jury. 72
Justice Stewart also wrote in his concurring opinion that, “[i]f the Constitution
gave [him] a roving commission to impose upon the criminal courts of [the states
his] own notions of enlightened policy, [he] would not join the [majority] opinion”
because other “recidivist procedures . . . are far superior to those utilized [under the
common law].” 73 And then-contemporary academic commentators critiqued the
common-law method and identified alternatives, including “determination of
[recidivist] status by the judge.” 74 But here we are. The cure of judicial factfinding
has proved worse than the disease it was supposed to treat.
70
385 U.S. 554 (1967).
71
Id. at 559.
72
Id. at 566–67.
73
Id. at 569 (Stewart, J., concurring); see also id. (observing that many states had recently
modified or abandoned the common-law method).
74
David S. Sidikman, Note, The Pleading and Proof of Prior Convictions in Habitual Criminal
Prosecutions, 33 N.Y.U. L. Rev. 210, 215–16 (1958) (capitalization omitted) (explaining that
judicial assessment “should be preferred over the common-law” method and that “a jury trial
should not be considered essential where the issue is conviction of prior offenses”); cf. Radice,
64
Case: 17-10172 Date Filed: 10/04/2018 Page: 65 of 153
Another objection might be that compiling evidence of prior convictions will
be burdensome. But with the advent of electronic records and other advantages of
modern technology, the task of reconstructing the details of prior convictions will
today be far easier than it was under the original common-law procedure and, over
time, will become easier still. 75 Because most state and federal prosecutions end in
guilty pleas, the relevant details of prior convictions ordinarily will be preserved in
factual proffers and other plea records. 76 And in the light of the rapid rate at which
many violent offenders recidivate, other relevant evidence likely will be fresh.77
In any event, Congress has some options for ensuring that all violent
recidivists remain subject to the mandatory minimum penalty. As explained above,
the elements clause may fail to capture offenders who commit broadly defined
crimes in violent ways. But the facts of their prior crimes, when ascertainable,
should not be immune from consideration when they commit new crimes.
supra note 45, at 340–41 & n.21 (critiquing the common-law method, but also acknowledging
that judicial factfinding “deprives the defendant of a jury trial on the issue”).
75
Cf. Crocker, 385 S.W.2d at 393 (explaining that the prosecution introduced “records from the
penitentiary,” “testimony of one of the officers involved in the prior case,” and fingerprint
evidence); King, Sentencing and Prior Convictions, supra note 18, at 561 (discussing how
technology has improved the identification of repeat offenders).
76
See Bureau of Justice Assistance, U.S. Dep’t of Justice, Plea and Charge Bargaining 1 (2011)
(“[A]bout 90 to 95 percent of both federal and state court cases are resolved through [plea
bargaining].”).
77
See U.S. Sentencing Comm’n, Report to the Congress, supra note 2, at 42 (finding a
“[m]edian [t]ime to [r]ecidivism” of 14 months).
65
Case: 17-10172 Date Filed: 10/04/2018 Page: 66 of 153
That this country comprises 50 states with different criminal codes all but
ensures that a formalist approach to defining a crime of violence—administered
only by judges—will be either over- or underinclusive and almost certainly will be
vulnerable to persistent litigation like that which felled the residual clause. For
example, a recent bill introduced in the United States Senate proposes to apply the
mandatory minimum to defendants with “[three] or more previous serious felony
convictions,” namely “any conviction . . . for an offense . . . punishable by
imprisonment for a statutory maximum term of not less than 10 years.” 78 But this
definition is both too narrow and too broad. It would exclude the offense of “felony
battery” under Florida law, 79 a third-degree felony with a maximum term of
imprisonment of five years, 80 even though this crime requires the infliction of
“great bodily harm, permanent disability, or permanent disfigurement.” 81 It also
would exclude convictions for “domestic battery by strangulation” under Florida
law82 and for “assault[ing] another and inflict[ing] substantial bodily harm” under
Minnesota law. 83 But it would include the Florida offense of “[u]nlawful
78
Restoring the Armed Career Criminal Act, S. 3335, 115th Cong. § 2 (2018).
79
Fla. Stat. § 784.041(1).
80
Id. § 775.082(3)(e).
81
Id. § 784.041(1)(b).
82
Id. § 784.041(2)(a).
83
Minn. Stat. § 609.223 subd. 1.
66
Case: 17-10172 Date Filed: 10/04/2018 Page: 67 of 153
possession or use of a fifth wheel,”84 a second-degree felony with a maximum term
of imprisonment of 15 years. 85 It would include a conviction under Utah law for
“the intentional sale of five or more unlawful telecommunication devices within a
six-month period,” 86 also a second-degree felony with a maximum term of
imprisonment of 15 years.87 And it would include the Massachusetts offense of
knowing possession of “ten or more pieces of false money . . . with intent to utter
or pass the same as true,” a crime punishable by a life sentence. 88 In the light of the
substantial recidivism differences between violent and nonviolent offenders,
Congress should ensure that their punishments are based on the nature of their past
convictions and not the potential sentences for those convictions.
Make no mistake—Congress must eventually do something. The need to
punish violent recidivists is just as strong today as it was when the Supreme Court
decided Spencer over 50 years ago.89 The only question is what Congress should
do. Restoring the common-law role of the jury is the right place to start.
84
Fla. Stat. § 812.0147.
85
See id. § 775.082(3)(d).
86
Utah Code § 76-6-409.8(2).
87
Id. § 76-3-203(2).
88
Mass. Gen. Laws ch. 267, § 17.
89
See Spencer, 385 U.S. at 566 n.9 (reporting “62% of prisoners committed to federal prisons in
the year ending June 30, 1965, had been previously committed.”).
67
Case: 17-10172 Date Filed: 10/04/2018 Page: 68 of 153
MARTIN, Circuit Judge, dissenting:
As United States Circuit Judges, we have been given great power and
privilege. And our positions call upon us to decide the fate of many people who
have neither. In a nation that incarcerates a larger percentage of its population than
almost all others, federal judges devote much time to examining (and reexamining)
the sentences imposed on people serving time in our federal and state prisons. The
interpretation the majority of this en banc Court gives to the sentencing statute at
issue here, which gives no relief for Irma Ovalles, presents the opportunity to
review the development of this Circuit’s sentencing jurisprudence in recent years.
My review reveals a body of law that has relentlessly limited the ability of the
incarcerated to have their sentences reviewed. Decisions of this Court have left
only a narrow path to relief for those serving sentences longer than the law now
allows. Yet this narrow path is not mandated by decisions of the Supreme Court or
by Acts of Congress. Indeed, this Court has withheld relief from prisoners even
when precedent counsels otherwise.
As did my colleagues in the majority, I begin with the landmark Supreme
Court decision in Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015).
Having read the majority opinion, the reader is surely aware that in Johnson, the
United States Supreme Court invalidated part of the Armed Career Criminal Act
(ACCA), a sentencing statute designed to punish violent repeat offenders more
68
Case: 17-10172 Date Filed: 10/04/2018 Page: 69 of 153
harshly. Id. at 2557. The question before the Court in Johnson was not whether
violent repeat offenders should be punished more harshly. Rather, the question
was how to decide who is a violent repeat offender. Id. at 2555. In Johnson, the
Court held that one definition the statute used to identify violent repeat offenders
was so vague, and so susceptible to divergent meanings, that relying on it to
lengthen people’s prison sentences violated the protections guaranteed by the U.S.
Constitution. Id. at 2557. As a result, the Supreme Court struck down the part of
ACCA known as the residual clause. This ruling called into question the sentences
of thousands of federal prisoners sentenced under ACCA and other, similarly
worded statutes—including the one that was the basis for Irma Ovalles’s sentence.
After Johnson, it was the job of the Eleventh Circuit, and all inferior federal courts,
to review the lawfulness of these sentences.
Yet at every turn, this Court erred in ways that stopped prisoners from
getting their sentences reviewed and prevented people who had meritorious claims
from getting relief. Ms. Ovalles’s case is a “successor” to Johnson, Maj. Op. at 2,
and it is the latest in this line of decisions. Judge Jill Pryor’s dissent shows how
the majority strays from the plain text of the statute and from Supreme Court
precedent. I fully join her opinion. I write separately to provide the context of the
Eleventh Circuit’s response to Johnson. This is not the first time this Court has
mistakenly applied Johnson, nor the first time our mistake will leave an unlawful
69
Case: 17-10172 Date Filed: 10/04/2018 Page: 70 of 153
sentence intact. Indeed, today’s en banc decision, like others before it, promises to
have lasting effects for many prisoners.
I. JOHNSON AFTERMATH
When the Supreme Court invalidates a statute that was the basis for
sentences being served by thousands of federal prisoners, the first question
becomes, who benefits? Do we simply quit relying on this unconstitutional statute
for those who will be sentenced in the future, or do we go back and give relief to
those who were sentenced under the flawed statute in the past? There are rules
governing who gets relief. See generally Teague v. Lane, 489 U.S. 288, 109 S. Ct.
1060 (1989). Generally, people sentenced under a flawed statute more than a year
before the Supreme Court announces a new rule like the one in Johnson get relief
based on the new rule (retroactive relief) if the Supreme Court has told us they can.
See 28 U.S.C. § 2255(f)(3), (h); In re Henry, 757 F.3d 1151, 1157–60 (11th Cir.
2014).
One statutory tool for a person seeking relief from an unlawful federal
prison sentence is found in 28 U.S.C. § 2255. Provisions of this statute were
intended to (and do) limit opportunities for prisoners to get courts to review
problems with their sentences. Prisoners may contest their sentences once as a
matter of right under § 2255, but they must do it within one year of their sentences
becoming final. Id. § 2255(f). This one-year statute of limitations goes by quickly
70
Case: 17-10172 Date Filed: 10/04/2018 Page: 71 of 153
indeed for most federal prisoners, who are routinely sentenced to serve decades-
long prison terms. Section 2255 does allow prisoners to bring a second or
successive challenge to their sentences after that first year, but it is much harder.
For starters, prisoners seeking relief when they are years into serving their sentence
must first come to a court of appeals to get permission. Id. §§ 2244(b)(3)(A),
2255(h). There are other barriers to getting a second chance at relief in federal
court, but for purposes of this discussion, perhaps the most important is that the
statute gives inmates no ability to contest a decision from a panel of this Court
telling them they cannot file a second or successive petition. Id. § 2244(b)(3)(E)
(“The grant or denial of an authorization by a court of appeals to file a second or
successive application shall not be appealable and shall not be the subject of a
petition for rehearing or for a writ of certiorari.”). For this “seeking permission”
process, prisoners are stuck with the answer we give them, whether our answer is
right or wrong.
As one would expect, after the Supreme Court decided Johnson, thousands
of prisoners tried to get permission from our Court (and others) to challenge their
sentences. This is understandable because many of them had been sentenced under
a statute they now knew was, in part, unconstitutional. To the best of my
knowledge, our Court applied Johnson to give relief to inmates exercising their
direct appeal rights, and to those who were within the one-year time limit for
71
Case: 17-10172 Date Filed: 10/04/2018 Page: 72 of 153
bringing their first collateral attack. E.g., Mays v. United States, 817 F.3d 728,
736–37 (11th Cir. 2016) (applying Johnson to a first § 2255 motion); United States
v. Braun, 801 F.3d 1301, 1307–08 (11th Cir. 2015) (applying Johnson on direct
appeal).
However, prisoners who were already more than a year into serving
sentences impacted by Johnson have had a hard time getting their cases considered
in the Eleventh Circuit. Shortly after Johnson was decided, this Circuit declined to
allow the Supreme Court’s new rule in Johnson to serve as the basis for a second
or successive motion under § 2255. In re Franks, 815 F.3d 1281, 1283 (11th Cir.
2016), abrogated by Welch v. United States, 578 U.S. __, 136 S. Ct. 1257 (2016);
In re Rivero, 797 F.3d 986, 989 (11th Cir. 2015), abrogated in part by Welch, 136
S. Ct. 1257 (2016); see 28 U.S.C. §§ 2244(b)(2)(A), 2255(h). Our Court denied
permission for § 2255 filings by long-ago sentenced inmates because the Supreme
Court did not say Johnson applied retroactively to them. As a member of this
Court who believed Supreme Court precedent required broader review of sentences
imposed under ACCA, this Court’s decision to the contrary was especially
dismaying because the government urged us to give retroactive relief to these
inmates. The government filed a statement in these cases saying: “[T]he Court
should grant authorization to file second or successive § 2255 motions where a
defendant makes a prima facie showing that, in light of Johnson, he was
72
Case: 17-10172 Date Filed: 10/04/2018 Page: 73 of 153
erroneously sentenced under the Armed Career Criminal Act.” Franks, 815 F.3d at
1289 (Martin, J., dissenting) (quotation marks omitted and alteration adopted).
As I discussed in my dissent in Franks, the Supreme Court’s decisions in
Schriro v. Summerlin, 542 U.S. 348, 351, 124 S. Ct. 2519, 2522 (2004) (holding
“[n]ew substantive rules generally apply retroactively”), and Bousley v. United
States, 523 U.S. 614, 620–21, 118 S. Ct. 1604, 1610 (1998) (determining a rule
that narrowed the scope of a criminal statute by interpreting its terms is substantive
and applied retroactively), “logically dictate the retroactivity of Johnson.” Franks,
815 F.3d at 1288 (Martin, J., dissenting) (quotation marks omitted). When the
Supreme Court struck down ACCA’s residual clause as unconstitutionally vague in
Johnson, it narrowed the scope of that statute’s reach. Id. Thus, the rule it
announced “necessarily carr[ied] a significant risk that a defendant . . . faces a
punishment that the law cannot impose upon him” and as such, should have been
applied retroactively. Summerlin, 542 U.S. at 352, 124 S. Ct. at 2522–23
(quotation marks omitted). Nevertheless, this Circuit ruled in In re Rivero that no
cases logically dictated Johnson’s retroactivity. Rivero, 797 F.3d at 989.
In Rivero, this Circuit held that no cases dictated Johnson’s retroactivity in
part because “Johnson did not hold that Congress could not impose a punishment
for the same prior conviction in a statute with less vague language.” Id. Our Court
73
Case: 17-10172 Date Filed: 10/04/2018 Page: 74 of 153
distinguished Bousley as involving a rule that was “the product of statutory
interpretation,” and not “a new rule of constitutional law.” Id. at 991.
Turns out we were wrong. Just shy of a year after Johnson issued, the
Supreme Court decided Welch v. United States, 578 U.S. ___, 136 S. Ct. 1257
(2016), commanding that inmates be given Johnson relief retroactively—and
rejecting this Court’s reasons for concluding Johnson did not apply retroactively.
In holding Johnson was retroactive, the Supreme Court pointed to Bousley, where
it concluded an interpretation narrowing the sweep of a criminal statute applies
retroactively, “even though Congress could (and later did) . . . amend[] the statute.”
Welch, 136 S. Ct. at 1267. By that same logic, the Welch Court held, Johnson
announced a retroactively applicable substantive rule. The Court also observed,
quite rightly, that “[t]reating decisions as substantive if they involve statutory
interpretation, but not if they involve statutory invalidation, would produce unusual
outcomes” and is an “arbitrary distinction [that] has no place in the Teague
framework.” Welch, 136 S. Ct. at 1268. In short, the Supreme Court rejected this
Court’s attempt to distinguish Bousley.
Fortunately, the Supreme Court was quick to correct this Court’s erroneous
decision on retroactivity—Welch issued just over eight months after Rivero and
three months after Franks. But in the meantime our Court had turned away dozens
of prisoners seeking authorization to file second or successive § 2255 motions
74
Case: 17-10172 Date Filed: 10/04/2018 Page: 75 of 153
based on Johnson. See In re Robinson, 822 F.3d 1196, 1198–1201 (11th Cir.
2016) (Martin, J., concurring in judgment). And because such applications must
be filed within one year of when the Supreme Court announced the new rule in
Johnson, see Dodd v. United States, 545 U.S. 353, 359, 125 S. Ct. 2478, 2482–83
(2005), all prisoners seeking the retroactive benefit of Johnson in their case had
only about two months to file an (or another) application.
Thus, in a compressed timeframe, the Court began reviewing thousands of
applications from inmates seeking to file a second or successive § 2255 petition
based on Johnson’s retroactivity. The statute requires these applications to make a
“prima facie” showing that they are entitled to relief. 28 U.S.C. §§ 2244(b)(3)(C),
2255(h). I will now review how this Circuit has implemented this statutory
requirement for Johnson applications.
II. INSTITUTING MERITS REVIEW OF APPLICATIONS SEEKING
AUTHORIZATION TO FILE SECOND OR SUCCESSIVE § 2255
MOTIONS RAISING JOHNSON CLAIMS
Again, when prisoners apply to circuit courts for authorization to file a
second or successive habeas motion, the governing statute limits our review of the
application to determining only whether the prisoner has made a “prima facie
showing” that his proposed motion “contain[s] . . . a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable.” 28 U.S.C. §§ 2244(b)(3)(C), 2255(h). I had occasion to
75
Case: 17-10172 Date Filed: 10/04/2018 Page: 76 of 153
discuss more fully in my concurrence in In re Williams, 898 F.3d 1098, 1107 (11th
Cir. 2018) (Martin, J., specially concurring), why a prima facie showing is “a less
demanding standard” than what is required to appeal from a District Court’s ruling
on a habeas petition. And the standard for appealing a District Court’s habeas
ruling “does not require a showing that the appeal will succeed.” Welch, 136 S.
Ct. at 1263 (quotation marks omitted).
Up until the rush of Johnson filings, this Court only reviewed filings from
prisoners asking for permission to bring a second or successive petition to see
whether the prisoner had made a prima facie case. We did this because, again, this
is the task the statute assigns us. See, e.g., In re Moss, 703 F.3d 1301, 1303 (11th
Cir. 2013) (explaining that the panel’s conclusion that the prisoner had made a
prima facie showing was “a limited determination” and the District Court would
need to do a de novo review); see also Jordan v. Sec’y, Dep’t of Corr., 485 F.3d
1351, 1357–58 (11th Cir. 2007) (holding that District Courts must review de novo
whether a petitioner has actually satisfied the requirements to file a second or
successive application because the statute “restricts us to deciding whether the
petitioner has made out a prima facie case of compliance with the § 2244(b)
requirements”); In re Joshua, 224 F.3d 1281, 1282 n.2 (11th Cir. 2000) (stating the
merits of a prisoner’s claim are “not relevant to whether [he] can obtain permission
to bring a second or successive § 2255 motion to vacate”).
76
Case: 17-10172 Date Filed: 10/04/2018 Page: 77 of 153
Before the rush of Johnson filings, we also recognized the practical
challenges of conducting a merits review by looking only at the filings asking for
permission to bring the action:
When we make that prima facie decision we do so based only
on the petitioner’s submission. We do not hear from the government.
We usually do not have access to the whole record. And we often do
not have the time necessary to decide anything beyond the prima facie
question because we must comply with the statutory deadline. See
§ 2244(b)(3)(D) (requiring a decision within 30 days after the motion
is filed).
Jordan, 485 F.3d at 1357–58. Beyond the limitations mentioned in Jordan, our
Court also requires prisoners to use a form designed for prisoners seeking to file a
second or successive petition. In re Saint Fleur, 824 F.3d 1337, 1342 & n.1 (11th
Cir. 2016) (Martin, J., concurring). This “form gives prisoners very little space to
explain their claims.” Id. at 1342 n.1; see Williams, 898 F.3d at 1101–02 (Wilson,
J., specially concurring). The mandatory form also prohibits prisoners from
attaching any “separate petitions, motions, briefs, arguments, etc.” Saint Fleur,
824 F.3d at 1342 n.1 (Martin, J., concurring) (quotation marks omitted); see
Williams, 898 F.3d at 1101–02 (Wilson, J., specially concurring).
Yet after Johnson, this Court began doing exactly what we had previously
explained the constraints on our prima facie review would not permit: deciding the
merits of a prisoner’s Johnson claim. See, e.g., In re Thomas, 823 F.3d 1345, 1349
(11th Cir. 2016). And the Court did this based on the limited filings, which the
77
Case: 17-10172 Date Filed: 10/04/2018 Page: 78 of 153
prisoner understood was just a permission-seeking document intended to allow him
to present the merits of his claims in District Court.
The questions that come up about sentences after Johnson are complicated.
Every ACCA sentence is based on the individual criminal history of the people
serving them. Under ACCA, a prisoner who had in the past committed three or
more crimes that qualified as either a “serious drug crime” or a “violent felony”
got a sentence that had to be at least fifteen years long. 18 U.S.C. § 924(e). Most
are longer. Yet ACCA allows no more than a ten-year sentence for a prisoner who
had fewer than three such earlier criminal convictions. Id. § 924(a)(2). Thus, the
devil is in the details. Johnson required the federal courts to do the tedious work of
examining the criminal histories of people who have been convicted of violating a
seemingly endless list of state crimes, defined by many different states in many
different ways. In many cases, this Court undertook this complicated review based
merely on the prisoner’s application to file a second or successive § 2255 motion.
In so doing, this Court effectively reimposed sentences on these inmates
here at the court of appeals level, without ever allowing more thorough District
Court review. We turned away prisoners seeking District Court review by ruling
that their criminal history that had qualified for a fifteen-year plus sentence still
qualified them for the longer sentence under a part of ACCA that survived
Johnson. See, e.g., In re Hires, 825 F.3d 1297, 1301–02 (holding Florida robbery
78
Case: 17-10172 Date Filed: 10/04/2018 Page: 79 of 153
and Florida aggravated assault qualify as ACCA predicates under the elements
clause).
As it turned out, the language the Supreme Court invalidated in Johnson also
appeared in other federal sentencing statutes, so our Court began to get filings from
prisoners sentenced under those statutes as well. For example, prisoners like Ms.
Ovalles also sought to challenge sentences imposed under 18 U.S.C. § 924(c), the
statute at issue in this case. Section 924(c) contains language very similar to that
declared unconstitutional in Johnson and “identical” to that declared
unconstitutional in Sessions v. Dimaya, 138 S. Ct. 1204 (2018). Maj. Op. at 16.
In some § 924(c) cases where the prisoner merely sought leave to present claims in
District Court, this Court decided on the merits—sometimes as a matter of first
impression—that a particular state crime still qualified as a “crime of violence”
under 18 U.S.C. § 924(c)(3)(A), which does not contain the language found
unconstitutional in Johnson. See, e.g., In re Saint Fleur, 824 F.3d 1337, 1340–41
(holding, for the first time, that substantive Hobbs Act robbery is a crime of
violence under 18 U.S.C. § 924(c)(3)(A)). 1
1
In Saint Fleur, I agreed with the panel opinion that Mr. Saint Fleur’s § 924(c) conviction
“look[ed] to be valid despite Johnson.” Saint Fleur, 824 F.3d at 1341 (Martin, J., concurring). In
hindsight I regret participating in merits reviews of sentences like Mr. Saint Fleur’s at this stage.
But even facing the flood of requests to file second or successive petitions, I realized at the time I
was “increasingly wary of deciding whether to grant leave to file a second or successive § 2255
petition based on a conclusion that the applicant’s proposed claim will fail on the merits.” Id.
By the time Saint Fleur was decided, I had come to realize that making these merits rulings on
79
Case: 17-10172 Date Filed: 10/04/2018 Page: 80 of 153
Also as a result of Johnson’s holding that the language of ACCA was
unconstitutional, it should have surprised no one that our Court would begin to see
challenges to sentences imposed under identical language in the U.S. Sentencing
Guidelines. USSG § 4B1.2(a). Yet here again, where prisoners sought to challenge
their sentences under this guideline, our Court denied them the chance to present
their claims in District Court. In a direct appeal from a sentencing, with full
adversarial testing, this Court said Johnson did not apply because the sentences
were imposed under a Guideline system that was advisory. United States v.
Matchett, 802 F.3d 1185, 1193–96 (11th Cir. 2015) (“The vagueness doctrine,
which ‘rest[s] on [a] lack of notice’ . . . does not apply to advisory guidelines.”).2
This is how the process should work. But then another panel of this Court, faced
with a prisoner’s application to file a second or successive petition, denied Johnson
relief even to those who had been sentenced under the mandatory Guidelines. See
In re Griffin, 823 F.3d 1350, 1353–56 (11th Cir. 2016) (extending Matchett, 802
F.3d at 1193–96 (11th Cir. 2015) to sentences imposed under the mandatory
Guidelines).
such thin pleadings, and with no adversarial testing was the wrong approach. I was also coming
to understand that some of our merits rulings were wrong, and there was little to no recourse for
inmates who got bum rulings.
2
Though I advocated that Johnson applied to the advisory guidelines, see In re Clayton, 829 F.3d
1254, 1256 (Martin J., concurring in the result), our Court’s holding to the contrary carried the
day. See Beckles v. United States, 580 U.S. __, 137 S. Ct. 886 (2017).
80
Case: 17-10172 Date Filed: 10/04/2018 Page: 81 of 153
During this time, many panels, including some I served on, chose to publish
our rulings on these applications. See, e.g., In re Smith, 829 F.3d 1276 (11th Cir.
2016); In re Colon, 826 F.3d 1301 (11th Cir. 2016); Hires, 825 F.3d at 1297; Saint
Fleur, 824 F.3d at 1337; In re Hines, 824 F.3d 1334 (11th Cir. 2016). Under
Eleventh Circuit precedent, published rulings are binding on all future panels
facing the same issue. United States v. St. Hubert, 883 F.3d 1319, 1328–29 (11th
Cir. 2018) (holding published orders on applications to file second or successive
habeas motions are binding on all future appellate panels).3 Some of these panel
opinions were decided over dissent, “which would ordinarily require oral argument
under this circuit’s rules.” Williams, 898 F.3d at 1109 n.4 (citing 11th Cir. R. 34-
3(b)(3)) (Martin, J., specially concurring).
In a short time span, our Court got thousands of authorization applications
raising Johnson claims. But once any panel published a decision holding an
inmate’s past conviction still counts as a predicate conviction under the ACCA, it
became easier to dispose of new filings. A panel receiving a new application to
file a second or successive petition could quickly cite to a published decision
rejecting someone else’s application based on its declaration that the two had
identical predicate convictions that had been ruled a “violent felony” even after
3
Judge Wilson and I discussed this issue in greater depth in our concurring opinions in Williams,
898 F.3d at 1100 (Wilson, J., specially concurring); id. at 1105 (Martin, J., specially concurring).
81
Case: 17-10172 Date Filed: 10/04/2018 Page: 82 of 153
Johnson. Unfortunately, several of these published merits decisions were just plain
wrong. That means not only did the mistaken decision deny relief for the inmate
who brought the case, but it will continue to require denial of relief for others who
would rightly be entitled to it.
III. EXAMPLES OF INCORRECT MERITS DECISIONS
ON SECOND OR SUCCESSIVE APPLICATIONS
In the rush to conduct these merits reviews of applications to file a second or
successive habeas petition within the 30-day statutory time frame, based only on a
form filed by a usually uncounseled prisoner, it should come as no surprise that our
Court made some mistaken rulings. I think it worthwhile to discuss three examples
of such mistakes in more detail here, to aid in understanding the impact of this
Court’s chosen method for responding to prisoners seeking relief after Johnson.
Unless we overrule them en banc or the Supreme Court corrects our errors, the
merits decisions we made under the constraints I have discussed will continue to
bar relief for prisoners with meritorious claims.
A. Florida Robbery and Aggravated Assault
In In re Hires, a panel denied Mr. Hires authorization to file a second or
successive habeas motion based on an earlier conviction imposed on him in
Florida. 825 F.3d at 1297. In reviewing Mr. Hires’s application, the panel first
looked to Turner v. Warden Coleman FCI, 709 F.3d 1328 (11th Cir. 2013),
abrogated on other grounds by Johnson, 135 S. Ct. 2551, to rule that a conviction
82
Case: 17-10172 Date Filed: 10/04/2018 Page: 83 of 153
for Florida aggravated assault qualified as a “violent felony” under ACCA’s
elements clause. Hires, 825 F.3d at 1301. Second, it relied on United States v.
Dowd, 451 F.3d 1244 (11th Cir. 2006), to say that Florida armed robbery also
qualified as a violent felony under the elements clause. Hires, 825 F.3d at 1301–
02. Pointing to Turner and Dowd, the panel held Mr. Hires had three prior
convictions that still qualified as violent felonies “without regard to the ACCA’s
residual clause” and denied his application. Id. at 1301–02, 1303–04. But the
panel need not have followed Dowd, which failed to apply the categorical
approach, as Supreme Court precedent requires. Smith v. GTE Corp., 236 F.3d
1292, 1300 n.8 (11th Cir. 2001) (“Under the well-established prior panel precedent
rule of this Circuit, the holding of the first panel to address an issue is the law of
this Circuit, thereby binding all subsequent panels unless and until the first panel’s
holding is overruled by the Court sitting en banc or by the Supreme Court.”).
To be clear, Turner was also wrongly decided. In United States v. Golden,
854 F.3d 1256 (11th Cir. 2017), Judge Jill Pryor concurred separately to explain
why Turner’s holding about Florida aggravated assault was wrong. Golden, 854
F.3d at 1258 (Jill Pryor, J., concurring). To summarize, Turner incorrectly applied
our precedent in United States v. Palomino Garcia, 606 F.3d 1317 (11th Cir. 2010),
and overlooked our precedent in United States v. Rosales-Bruno, 676 F.3d 1017
(11th Cir. 2012). Golden, 854 F.3d at 1258. Although Judge Jill Pryor called for
83
Case: 17-10172 Date Filed: 10/04/2018 Page: 84 of 153
the Court, sitting en banc, to reconsider Turner, see Golden, 854 F.3d at 1258–59,
we have not yet done so and I’ve seen no indication we will anytime soon.
Instead, we continue to apply Turner to deny prisoners relief. See, e.g., Hylor v.
United States, 896 F.3d 1219, 1223 (11th Cir. 2018). But Turner at least was
binding on the Hires panel. See Golden, 854 F.3d at 1257 (panel opinion)
(concluding Turner is binding even if flawed).
As for Florida armed robbery, in Dowd, this Court summarily stated in one
sentence that Florida armed robbery “is undeniably” a violent felony and cited to
ACCA’s elements clause. 451 F.3d at 1255. I had an opportunity in United States
v. Seabrooks, 839 F.3d 1326 (11th Cir. 2016), to point out that Dowd’s one-
sentence reasoning was not adequate, let alone a proper application of Supreme
Court precedent, in light of the Supreme Court’s more recent decisions explaining
how to apply the categorical approach. Seabrooks, 839 F.3d at 1348–49 (Martin,
J., concurring in the judgment). 4 Yet, only three weeks after the panel’s fractured
4
I did understand at the time, however, that this Court’s decision in United States v. Lockley,
632 F.3d 1238 (11th Cir. 2011), controlled the outcome of Mr. Seabrooks’s case. Seabrooks,
839 F.3d at 1350–52. In holding that Florida attempted robbery qualified as a “crime of
violence” under the elements clause of Guideline § 4B1.2(a), Lockley determined that the “least
culpable conduct sufficient to support a robbery conviction” under Florida law was “taking by
putting the victim in fear.” Seabrooks, 839 F.3d at 1350 (citing Lockley, 632 F.3d at 1244). The
Lockley panel decided that “‘[p]utting in fear,’ per Florida law, involves an act causing the
victim to fear death or great bodily harm.” 632 F.3d at 1244. Mr. Seabrooks sought to
distinguish Lockely by arguing that “sudden snatching,” not “putting in fear,” was the least
culpable conduct under Florida law. Seabrooks, 839 F.3d at 1350–51. My review of Florida
Supreme Court decisions made me believe that, at the time of Mr. Seabrooks’s conviction,
sudden snatching would not have been a sufficient basis for an attempted robbery conviction.
84
Case: 17-10172 Date Filed: 10/04/2018 Page: 85 of 153
decision in Seabrooks, another panel applied Dowd as binding precedent and ruled
that all Florida armed robbery convictions are categorically violent felonies for
ACCA purposes. See United States v. Fritts, 841 F.3d 937, 940, 943–44 (11th Cir.
2016). Fritts also cited Hires and other published cases dealing with second or
successive petitions to support its conclusion that Florida armed robbery qualifies
as a violent felony under the elements clause. Id. at 940 (citing Hires, 825 F.3d
1297, In re Thomas, 823 F.3d 1345, 1349 (11th Cir. 2016), and In re Moore, 830
F.3d 1268, 1271 (11th Cir. 2016)). Fritts is wrongly decided, and the Supreme
Court is now set to review our holding in that case. See United States v. Stokeling,
684 F. App’x 870, 872–76 (11th Cir. 2017) (Martin, J., concurring) (unpublished),
cert. granted 138 S. Ct. 1438 (2018); see also United States v. Lee, 886 F.3d 1161,
1166–69 (11th Cir. 2018) (Jordan, J., concurring); United States v. Geozos, 870
F.3d 890, 901 (9th Cir. 2017) (holding Florida robbery and Florida armed robbery
are not categorically violent felonies for ACCA purposes and ordering release of
prisoner). In the meantime, however, this Court continues to rely on Fritts to bar
inmates’ claims for relief. See, e.g., Hylor, 896 F.3d at 1223.
B. Johnson’s Applicability to the Mandatory Guidelines
See id. at 1351–52. (discussing change in Florida law in 1997). In another case, Judge Jordan
showed that intermediate Florida courts were affirming robbery convictions despite conduct that
did not involve an act causing the victim to fear death or great bodily harm, calling into question
Lockley’s soundness. See United States v. Lee, 886 F.3d 1161, 1166–69 (11th Cir. 2018)
(Jordan, J., concurring).
85
Case: 17-10172 Date Filed: 10/04/2018 Page: 86 of 153
As I’ve mentioned, the United States Sentencing Guidelines contained
language identical to what the Supreme Court ruled unconstitutionally vague in the
ACCA statute. This Court upheld guideline sentences imposed in reliance on this
language under the advisory guideline regime. Matchett, 802 F.3d at 1196; see
Beckles v. United States, 580 U.S. __, 137 S. Ct. 886, 890 (2017) (holding “the
advisory Guidelines are not subject to vagueness challenges under the Due Process
Clause”). But I think this Court got it wrong in In re Griffin when it extended
Matchett’s ruling that there was no constitutional vagueness problem with advisory
guidelines to hold sentences under the mandatory Guidelines were not
unconstitutionally vague. See In re Griffin, 823 F.3d 1350, 1354–56. Cf. Cross v.
United States, 892 F.3d 288, 299–302, 307 (7th Cir. 2018) (holding Johnson
invalidated the residual clause of the mandatory career-offender Guideline and
ordering resentencing). The Griffin panel’s first mistake was concluding it was
bound by Matchett, when in fact Matchett addressed a different question. See
Griffin, 823 F.3d at 1354. Matchett was concerned solely with the advisory
Guidelines. Nonetheless, citing Matchett, Griffin reasoned that “[t]he
Guidelines—whether mandatory or advisory—cannot be unconstitutionally vague
because they do not establish the illegality of any conduct and are designed to
assist and limit the discretion of the sentencing judge.” Id. But this is not what
Matchett said. Matchett recognized that the vagueness doctrine, and thus Johnson,
86
Case: 17-10172 Date Filed: 10/04/2018 Page: 87 of 153
applied to “criminal statutes that define elements of a crime or fix punishments.”
Matchett, 802 F.3d at 1194 (emphasis added) (citing Johnson, 135 S. Ct. at 2557).
The Griffin panel failed to consider that the Supreme Court has equated the
mandatory Guidelines with laws that fix sentences. See, e.g., United States v.
Booker, 543 U.S. 220, 234, 125 S. Ct. 738, 750 (2005) (“Because [the Guidelines]
are binding on judges, [the Court] ha[s] consistently held that the Guidelines have
the force and effect of laws.” (emphasis added)). Booker also rejected the idea that
“[t]he availability of a departure in specified circumstances” was enough to make a
mandatory Guideline range advisory. See 543 U.S. at 234, 125 S. Ct. at 750.
The Griffin panel also said, “Due process does not mandate notice of where,
within the statutory range, the guidelines sentence will fall.” 823 F.3d at 1354.
But this too is wrong. In Beckles v. United States, 580 U.S. ___, 137 S. Ct. 886
(2017), the Supreme Court told us that the vagueness doctrine did not apply to the
post-Booker advisory Guidelines precisely because “‘the due process concerns that
require[d] notice in a world of mandatory Guidelines no longer’ apply.” Id. at 894
(quoting Irizarry v. United States, 553 U.S. 708, 714, 128 S. Ct. 2198, 2202 (2008)
(alterations adopted and emphasis added)).
This Court alternatively held in Griffin that Welch did not make Johnson
retroactive on all collateral challenges. The Griffin panel said Johnson was
retroactive only where it applied to result in “a substantive change of law [by]
87
Case: 17-10172 Date Filed: 10/04/2018 Page: 88 of 153
alter[ing] the statutory range of permissible sentences.” Griffin, 823 F.3d at 1355.
The panel noted that application of Johnson to the Sentencing Guidelines would
result only in “changes in how the sentencing procedural process is to be
conducted.” Id. In short, the Griffin panel accepted Johnson as a substantive rule
in the ACCA context, but characterized it as a procedural rule in the Sentencing
Guideline context. This cannot be right.
Welch explained that a new rule “has a procedural function” if it “alters only
the procedures used to obtain the conviction.” 136 S. Ct. at 1266. A new rule has
a “substantive function” if it “alters instead the range of conduct or class of persons
that the law punishes.” Id. Johnson is clearly a substantive rule as applied to the
mandatory Guidelines because if the residual clause in the career-offender
Guideline is void for vagueness, then the range of conduct that Guideline reaches
is necessarily narrowed. See id. To the extent Griffin relied on a distinction
between statutes promulgated by Congress and Guidelines issued by the
Sentencing Commission, that is a distinction without a difference for the time
when the Guidelines were mandatory. See United States v. R.L.C., 503 U.S. 291,
297, 112 S. Ct. 1329, 1334 (1992) (rejecting the idea that “the statutory character
of a specific penalty provision gives it primacy over administrative sentencing
guidelines,” noting “the mandate to apply the Guidelines is itself statutory” (citing
18 U.S.C. § 3553(b)).
88
Case: 17-10172 Date Filed: 10/04/2018 Page: 89 of 153
Even with these flaws in Griffin, it is binding precedent in our Circuit, and
we are required to deny leave to file a second or successive petition to any prisoner
seeking relief from a sentence imposed under the mandatory guideline system.
C. Florida Manslaughter
My third example of a merits decision that missed the mark came in In re
Burgest, 829 F.3d 1285 (11th Cir. 2016). Here, the panel denied Mr. Burgest
permission to file a second or successive motion based on Griffin. Id. at 1287.
The panel then went on to consider—even though the case had already been
decided against Mr. Burgest—whether a conviction for Florida manslaughter
qualified as a “crime of violence” under the career-offender Guideline. Id. The
commentary to the career-offender Guideline defined “crime of violence,” in part,
by listing several included offenses, which list included “manslaughter.” See
USSG § 4B1.2 cmt. n.1. On this basis alone, the Burgest panel held that Florida
manslaughter was a crime of violence. See 829 F.3d at 1287.
But Burgest’s reasoning ignored Eleventh Circuit precedent that requires us
to apply the categorical approach when deciding whether a prior conviction is a
qualifying offense for sentencing enhancement purposes. See Lockley, 632 F.3d at
1241–42 (noting “robbery” is enumerated as a “crime of violence” in the Guideline
commentary to § 4B1.2 and stating “[w]here, as here, the Guidelines specifically
designate a certain offense as a ‘crime of violence,’ we compare the elements of
89
Case: 17-10172 Date Filed: 10/04/2018 Page: 90 of 153
the crime of conviction to the generic form of the offense as defined by the States,
learned treatises, and the Model Penal Code”). When it failed to use the
categorical approach, the panel merely relied on the label Florida uses. This
practice was explicitly rejected by this Court in Palomino Garcia. See 606 F.3d at
1327–29 (rejecting the government’s argument that a 16-level enhancement under
Guideline § 2L1.2 should be affirmed merely because the State called the offense
“aggravated assault” and the Guideline definition enumerated “aggravated assault”
as a “crime of violence”). A blind reliance on how any given state law labels a
crime leads to prisoners who engaged in similar conduct being sentenced
differently. That is because conduct criminalized in one state may not be in
another. For example, if Florida labeled the act of crossing the street outside of the
crosswalk “manslaughter,” that would be enough for the Burgest panel to conclude
jaywalking was a “crime of violence.” Our precedent should have stood to defeat
this result.
Where other circuits used the categorical approach, they found that Florida’s
manslaughter statute encompasses more acts than those captured in the generic
definition. See United States v. Mendoza-Padilla, 833 F.3d 1156, 1159–60 (9th
Cir. 2016) (relying on the federal generic definition of manslaughter as well as the
Fifth Circuit’s survey of all 50 states in United States v. Dominguez-Ochoa, 386
F.3d 639, 645–46 (5th Cir. 2004)); United States v. Garcia-Perez, 779 F.3d 278,
90
Case: 17-10172 Date Filed: 10/04/2018 Page: 91 of 153
284 & nn. 23–24, 289 (5th Cir. 2015) (relying on the generic definition developed
in Dominguez-Ochoa and United States v. Bonilla, 524 F.3d 647 (5th Cir. 2008),
which also included discussions of treatises and the Model Penal Code). The Fifth
Circuit decided that Florida manslaughter can be committed “by act, by
procurement, or by culpable negligence.” Garcia-Perez, 779 F.3d at 284; see Fla.
Stat. § 782.07(1). That court then examined Florida case law to find that a long
line of cases, left unaddressed by more recent ones, “establishes that something
less than recklessness as to death is required to prove act manslaughter.” Garcia-
Perez, 779 F.3d at 287. Through this process, the Fifth Circuit concluded that
Florida manslaughter “falls outside the definition of generic contemporary
manslaughter,” which requires “either intent to kill or recklessness.” Id. at 284,
289. Thus, for inmates seeking sentencing relief in the Fifth Circuit, a past
conviction for manslaughter from Florida does not defeat their claim. This is true
in the Ninth Circuit as well. Mendoza-Padilla, 833 F.3d at 1159–62.
Hires, Griffin, and Burgest are examples of how this Court’s approach to
second or successive applications has harmed prisoners serving long sentences
imposed under ACCA or the Sentencing Guidelines. The Court’s approach in
these cases disregarded our own precedent and rules in search of a quick end to the
flood of applications filed by prisoners raising Johnson claims. How did this
happen? For one thing, I believe the Court tried to get to the merits of these cases
91
Case: 17-10172 Date Filed: 10/04/2018 Page: 92 of 153
too fast. The statute for reviewing these applications sets a 30-day limit for ruling
on them. 28 U.S.C. § 2244(b)(3)(D). Once our Court decided to get to the merits
at the mere “seeking permission” stage, we should have joined seven of our sister
circuits and held that the 30-day timeframe was not mandatory. See In re Johnson,
814 F.3d 1259, 1262 n.1 (11th Cir. 2016) (listing cases). I was on a panel that did
just that, id. at 1262, but our panel opinion was vacated by the Court in an en banc
order without opinion. 815 F.3d 733 (vacating the panel opinion and taking the
case en banc); see also No. 16-10011, slip op. (11th Cir. April 21, 2016) (granting
the request to file a second or successive petition but leaving the panel opinion
vacated).
Our nation has experienced an explosion in its prison population over the
last twenty years or so. 5 The Supreme Court’s decision in Johnson required federal
judges to take a close look at the sentences of thousands of people incarcerated in
federal prison. For many inmates, we did not. In our haste, this Court made
mistakes (myself included) that always seemed to work against the prisoner. Yet
this Court has not just failed to correct its mistakes. It has also acted to set these
incorrect decisions in stone.
IV. BARRING MULTIPLE APPLICATIONS TO FILE § 2255 MOTIONS
5
See E. Anne Carson, Bureau of Justice Statistics, Prisoners in 2016 1 (Aug. 7, 2018),
https://www.bjs.gov/content/pub/pdf/p16.pdf.
92
Case: 17-10172 Date Filed: 10/04/2018 Page: 93 of 153
During the two or so months after the Supreme Court decided Welch, some
prisoners were savvy enough to apply to seek relief more than once. This Court
then undertook to put an end to this practice, and in doing so, adopted an
interpretation of AEDPA that is far removed from the text of the statute. And
beyond our Court’s departure from what the statute requires, it also overlooked
Supreme Court precedent counseling a path quite different from what this Court
chose.
Until recently, federal prisoners at least had the comfort of knowing that
when they were denied leave to file second or successive habeas motions, that
denial was without prejudice and “there [was] no rule against filing multiple
applications for leave to file a successive § 2255 petition.” See In re Anderson,
829 F.3d 1290, 1296 (11th Cir. 2016) (Martin, J., dissenting) (quoting In re Barber,
No. 16-10107, slip. op. at 32 (11th Cir. Feb. 10, 2016) (Marcus, J., dissenting)).
However, in the course of deciding the rush of filings after Johnson, a panel of this
Court held that AEDPA requires courts of appeals to deny with prejudice
“applications for leave to file a second or successive § 2255 motion presenting the
same claims we have already rejected on their merits in a previous application.” In
re Baptiste, 828 F.3d 1337, 1340 (11th Cir. 2016) (construing 28 U.S.C. §
2244(b)(1)).
93
Case: 17-10172 Date Filed: 10/04/2018 Page: 94 of 153
In order to reach this result, the Baptiste panel first determined § 2244(b)(1)
applies to § 2255 motions, even though § 2244(b)(1) only expressly refers to
petitions for habeas corpus relief filed by state prisoners under 28 U.S.C. § 2254.
828 F.3d at 1339. For justification, the Baptiste panel said simply that “it would be
odd indeed if Congress had intended to allow federal prisoners to refile precisely
the same non-meritorious motions over and over again while denying that right to
state prisoners.” Id. But courts have no power to rewrite Acts of Congress
because we think them “odd.” Second, Baptiste determined “§ 2244(b)(1) applies
with equal force” to authorization applications pending before courts of appeal. Id.
The panel reasoned that reading the statute to prohibit only claims raised in earlier
habeas petitions filed in District Court—what the Seventh Circuit said was the
“natural reading” of the statute, Bennett v. United States, 119 F.3d 470, 471 (7th
Cir. 1997)—“would treat frivolous applications more favorably than those that
presented some arguable merit.” Baptiste, 828 F.3d at 1340 (citing Bennett).
Two of my colleagues have explained at length the problems with Baptiste,
and I will not revisit them all here. See In re Jones, 830 F.3d 1295, 1297–1305
(11th Cir. 2016) (Rosenbaum and Jill Pryor, JJ., concurring in result). I add only
that my best understanding is that Baptiste’s interpretation is contrary to Supreme
Court precedent. In Magwood v. Patterson, 561 U.S. 320, 130 S. Ct. 2788 (2010),
the Court interpreted § 2244(b)(1) and (b)(2) in the course of deciding what
94
Case: 17-10172 Date Filed: 10/04/2018 Page: 95 of 153
“second or successive” meant as that phrase is used in those provisions. 561 U.S.
at 330–31, 130 S. Ct. at 2796. Magwood held those provisions “apply only to a
‘habeas corpus application under § 2254,’ that is, ‘an application for a writ of
habeas corpus on behalf of a person in custody pursuant to the judgment of a State
court.’” 561 U.S. at 332, 130 S. Ct. at 2797 (emphasis omitted) (quoting 28 U.S.C.
§ 2254(b)(1)). The Supreme Court thus interpreted “application,” as that word is
used in §§ 2244(b)(1) and (b)(2) not to refer to a filing seeking authorization to file
a second or successive habeas motion, but instead to refer to the actual habeas
petition filed in the District Court.
The Supreme Court also explained in Magwood that § 2254’s “requirement
of custody pursuant to a state-court judgment distinguishes § 2254 from other
statutory provisions authorizing relief from constitutional violations—such as
§ 2255, which allows challenges to the judgments of federal courts.” 561 U.S. at
333, 130 S. Ct. at 2797. And the Supreme Court has many times noted that
Congress intended provisions of § 2254 to promote comity and federalism
principles. E.g., Cullen v. Pinholster, 563 U.S. 170, 185, 131 S. Ct. 1388, 1401
(2011). There does indeed seem to be a reason for treating § 2254 and § 2255
prisoners differently beyond just the textual limitations. That reason is federalism.
Baptiste’s application of § 2244(b)(1) to § 2255 motions based on its “it would be
odd” rule makes no mention of this difference.
95
Case: 17-10172 Date Filed: 10/04/2018 Page: 96 of 153
Nonetheless, the judges of this Court are bound to apply Baptiste. The harm
it does is not hard to see. For example, I will return briefly to Mr. Hires’s case. In
re Hires, 825 F.3d at 1297. After Welch, Mr. Hires filed an application seeking
authorization to file a second or successive § 2255 motion. Id. at 1298. He wanted
to raise the single claim that his ACCA sentence was invalid because it relied on
the residual clause. See id. at 1298. The panel denied the application because it
concluded Mr. Hires still had three qualifying predicate convictions, including
Florida aggravated assault and Florida armed robbery. See id. at 1301–02. Yet as
set out above, Hires applied erroneous precedent, which was not binding on the
panel because of intervening Supreme Court decisions. Yet even if this Court or
the Supreme Court had corrected our mistake in the short time between Welch and
the one-year anniversary of Johnson, Mr. Hires would be barred by Baptiste from
raising this Johnson claim in a new application. In fact, Mr. Hires did file another
application for leave to file a second or successive petition after Welch. This Court
denied it, citing Baptiste. In re Hires, No. 16-13813-J, slip op. at 2 (11th Cir. July
19, 2016). Thus, Baptiste ensures that Mr. Hires got one chance, and only one. He
does not get another, even though this Court muffed his single opportunity by
wrongly deciding his claim.
96
Case: 17-10172 Date Filed: 10/04/2018 Page: 97 of 153
In this way, Baptiste requires a prisoner to bear all consequences of any
mistake this Court makes in his case. It would be one thing if this were what
AEDPA required of us. But it is not. Baptiste itself was wrongly decided.
To the extent that Baptiste was issued as a work-load management tool for
the courts, it is not necessary. As discussed, AEDPA already allows a very narrow
path for courts to revisit decisions on authorization applications. See 28 U.S.C. §
2244(b)(3)(E) (barring appeals, petitions for rehearing, and petitions for a writ of
certiorari from the grant or denial of authorization to file a second or successive
petition). In fact, the only approach this Court has identified is a decision to rehear
the case nostra sponte by an en banc court. See In re Lambrix, 776 F.3d 789, 794
(11th Cir. 2015). And in any event, at some point all prisoners will encounter
AEDPA’s one-year deadline. See Dodd, 545 U.S. at 359, 125 S. Ct. at 2482–83.
Thus, Baptiste effectively locks in erroneous holdings to the detriment of prisoners
for the foreseeable future.
V. A FINAL ROADBLOCK TO RELIEF
I end with the Court’s recent refusal to reconsider United States v. Beeman,
871 F.3d 1215 (11th Cir. 2017), denying r’hrg en banc 899 F.3d 1218 (11th Cir.
2018). In Beeman, a panel of this Court held that to prove a Johnson claim, a
prisoner had to prove that “it was use of the residual clause that led to the
sentencing court’s enhancement of his sentence.” 871 F.3d at 1221–22. Beeman
97
Case: 17-10172 Date Filed: 10/04/2018 Page: 98 of 153
erred, in my view, when it limited the ways to prove this. Id. at 1224 n.5.
Beeman said this “historical fact” could be proved, among other ways, by pointing
to an express statement by the District Court at sentencing saying it was relying on
the residual clause or by pointing to precedent binding at the time of sentencing
showing that a crime qualified as an ACCA predicate only under the residual
clause. Id. at 1224 & nn.4-5.
Of course, before Johnson District Courts did not say at sentencing which
ACCA clause they relied on because nothing in the law required them to. See
Beeman, 899 F.3d at 1228 (Martin, J., dissenting from denial of rehearing en
banc). There is no exhaustive body of law from this Circuit before Johnson
specifying which among countless offenses from fifty states qualified as violent
crimes only under the residual clause. Also, up until Johnson was decided, few
defendants had reason to suspect the unconstitutionality of the residual clause, so
they had no reason to ask about the source of their enhanced sentence. After all,
the Supreme Court twice “rejected suggestions by dissenting Justices that the
residual clause violates the Constitution’s prohibition of vague criminal laws,”
most recently in 2011. Johnson, 135 S. Ct. at 2556 (citing Sykes v. United States,
564 U.S. 1, 131 S. Ct. 2267 (2011) and James v. United States, 550 U.S. 192, 127
S. Ct. 1586 (2007)).
98
Case: 17-10172 Date Filed: 10/04/2018 Page: 99 of 153
Beeman said its historical-fact test was necessary to preserve the “burden of
proof.” 871 F.3d at 1221–24. Not so. Other courts require prisoners to prove their
claims by demonstrating that their prior conviction could not qualify as an ACCA
predicate under the enumerated offenses and elements clauses. See United States
v. Geozos, 870 F.3d 890, 896 (9th Cir. 2017); United States v. Winston, 850 F.3d
677, 682 (4th Cir. 2017). This alternative method for carrying the burden of proof
in these cases does not lessen the burden in any way. See Beeman, 899 F.3d at
1226-29 (Martin, J., dissenting from denial of rehearing en banc). And we can
determine whether a prior conviction counted as an ACCA predicate under the
enumerated offenses and elements clauses. As the Supreme Court told us in
Descamps v. United States, 570 U.S. 254, 260, 263, 133 S. Ct. 2276, 2283, 2285
(2013), the rules for evaluating predicate offenses under the enumerated offenses
and elements clauses are “the same today as they have always been.” Id. If the
prior conviction could not qualify under these clauses, then of course the District
Court must have relied on the residual clause at the prisoner’s sentencing.
For those rare prisoners who somehow made it past this Court’s review of
their authorization applications and through the District Court’s front doors, they
will face one last, likely fatal, roadblock. District Courts will now decide whether
prisoners should get the benefit of Johnson without being able to consider
developments in that law intended to help them evaluate who qualifies as a violent
99
Case: 17-10172 Date Filed: 10/04/2018 Page: 100 of 153
repeat offender. In the end, of the thousands of inmates who filed authorization
applications raising potentially meritorious Johnson claims, very few will ever get
a full review of the merits of their claims and even fewer will get relief. See
Williams, 898 F.3d at 1107-08 (Martin, J., specially concurring).
VI. TODAY’S DECISION IN CONTEXT
As this review shows, our Court has made many missteps after Johnson. It
all began, in my view, when we started conducting merits review of prisoners’
cases when all they wanted was permission to file a second or successive § 2255
motion in District Court. We compounded that error when we started publishing
those decisions, establishing them as precedent. Then we locked in our mistakes
by adopting an interpretation of § 2255, not in keeping with the text of the statute,
to prevent prisoners from filing more than one application to file a second or
successive petition, even where we wrongly denied their first. And then we denied
those prisoners who managed to get full District Court review of their sentences
the ability to use current Supreme Court precedent to show they had been
sentenced under the ACCA residual clause. At every turn, our rulings put
obstacles in the paths of prisoners trying to have their sentences reviewed. These
roadblocks mean some prisoners in our Circuit will serve unconstitutional
sentences.
100
Case: 17-10172 Date Filed: 10/04/2018 Page: 101 of 153
Today’s majority en banc opinion decides that the Supreme Court’s
decisions in Johnson and Dimaya did not invalidate § 924(c)’s residual clause.
Again, I fully join Judge Jill Pryor’s dissent explaining why this is wrong. I note
with regret that today’s decision is but a piece of the precedent I reviewed here.
This Court has mishandled the application of Johnson to many people who should
have benefitted from it, and we do so again today.
My final observation about the majority’s en banc ruling against Ms. Ovalles
is to note that the majority opinion makes much of the fact that the government has
asked us to abandon the categorical approach in interpreting § 924(c)(3)(B). See
Maj. Op. at 29–30. Judge Jill Pryor’s dissent explains why this consideration
should not factor into our analysis of the statute at issue. Jill Pryor Dissent at 144–
45. I would add that, when deciding whether Johnson was retroactive, we paid no
heed to the government’s concession that it was. See supra at 1–2. If we are going
to defer to the government’s view, we should do so whether it advocates for or
against relief for the prisoner.
I respectfully dissent from the majority opinion, particularly as it evidences
this Court’s failure to properly review and correct unlawful sentences in the wake
of Johnson.
101
Case: 17-10172 Date Filed: 10/04/2018 Page: 102 of 153
JILL PRYOR, Circuit Judge, with whom WILSON, MARTIN, and JORDAN,
Circuit Judges, join, dissenting:
This case is about 18 U.S.C. § 924(c), a frequently charged federal criminal
statute, and how one recent Supreme Court case in particular, Sessions v. Dimaya,
138 S. Ct. 1204 (2018), bears on our interpretation of this law. In Dimaya, the
Supreme Court struck down as unconstitutional a statute, 18 U.S.C. § 16(b),
containing the exact same clause as the one in § 924(c) that we must interpret in
this case. The words in this clause were not incidental to the Supreme Court’s
decision; the decision was based on the Court’s interpretation of the text. In my
view, this should be the end of it. If § 16(b) is void for vagueness under the Due
Process Clause, then so is the part of § 924(c) we analyze here. The majority
agrees that if the method of statutory interpretation the Supreme Court used in
Dimaya must be used in this case, then the part of § 924(c) under which appellant
Irma Ovalles was convicted and sentenced must be stricken as unconstitutional.
But the majority denies that we must use this method of statutory interpretation,
even though the Supreme Court has told us that the language of § 16—and, by
extension, the language of § 924(c)—“requires” it. Leocal v. Ashcroft, 543 U.S. 1,
7 (2004).
Before I get to why I think the majority is wrong, let me point out where
we agree. We courts are loath to strike down acts of Congress—and appropriately
so. When a law passed by Congress may be read to have more than one plausible
102
Case: 17-10172 Date Filed: 10/04/2018 Page: 103 of 153
or “fairly possible” meaning, and one interpretation would cause the law to be
upheld as constitutional while another would require it to be struck down, we are
“obligated to construe the statute” so as to uphold it. I.N.S. v. St. Cyr., 533 U.S.
289, 300 (2001). This is the canon of constitutional avoidance, or constitutional
doubt, as the majority calls it. The Supreme Court recently clarified a significant
limitation on the use of this rule of statutory construction, however: “In the
absence of more than one plausible construction, the canon simply has no
application.” Jennings v. Rodriguez, 138 S. Ct. 830, 842 (2018) (internal quotation
marks omitted). Put differently, what courts may not do is assign a law a strained
or unreasonable reading to save it from being declared unconstitutional. I disagree
with the majority that the text of § 924(c) plausibly can be interpreted in a way
other than how the Supreme Court interpreted the same language in Dimaya and
Leocal. In making the case that it can, the majority is forced to rely on factors
outside of the text—which Supreme Court precedent clearly says we may not do.
See Rodriguez, 138 S. Ct. at 842-43; see also Pereira v. Sessions, 138 S. Ct. 2105,
2118 (2018) (explaining that practical considerations “do not justify departing
from [a] statute’s clear text”).
This case—with all its textual analysis, discussion of canons of statutory
construction, and parsing of precedent—may come across like a purely academic
exercise. In reality, it is anything but. People who are serving sentences of five
103
Case: 17-10172 Date Filed: 10/04/2018 Page: 104 of 153
years to life under § 924(c) will get no relief from this Court even though the
Supreme Court held that an identically-worded statute was so vague that its
enforcement violated the right to due process under law. For the reasons I explain
in more detail below, I respectfully dissent.1
***
Section 924(c) makes it a federal crime to use or carry a firearm “during and
in relation to any crime of violence or drug trafficking crime” or to possess a
firearm in furtherance of such a crime. 18 U.S.C. § 924(c)(1)(A). A “crime of
violence,” under the provision at issue in this case, is one 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.” Id. § 924(c)(3)(B).
The punishment for violating § 924(c) is from five years to life in prison,
depending on the nature of the firearm and how it is used, carried, or possessed.
When reviewing this same crime of violence definition in another federal statute,
18 U.S.C. § 16(b), in the face of a challenge that it was unconstitutionally vague,
the Supreme Court in Dimaya applied the “categorical approach” to interpreting
the statute. See Dimaya, 138 S. Ct. at 1211 (citing Leocal, 543 U.S. at 7). Relying
1
After Johnson was decided but before the Supreme Court issued its decision in Dimaya, a panel
of this court rejected Ms. Ovalles’s constitutional vagueness challenge to the residual clause of
§ 924(c). See Ovalles v. United States, 861 F.3d 1257 (11th Cir. 2017), vacated, reh’g en banc
granted, 889 F.3d 1259 (11th Cir. 2018). I held the mandate because I believed that Johnson’s
reasoning applied with equal force to § 924(c)(3)(B). After Dimaya was decided, our court sua
sponte decided to rehear this case en banc.
104
Case: 17-10172 Date Filed: 10/04/2018 Page: 105 of 153
on its precedent, including Johnson v. United States, 135 S. Ct. 2551 (2015), which
interpreted similar language in another statute, the Armed Career Criminal Act
(“ACCA”), the Court said that to qualify as a crime of violence, the crime must be
one that categorically—that is, in the “ordinary case” rather than in the particular
way that the defendant committed it—meets the statutory definition. When the
court applied the categorical approach to § 16, it struck subsection (b) of the statute
as void for vagueness. Dimaya, 138 S. Ct. at 1215-16.
No one disputes that if we must use the categorical approach to interpret
§ 924(c)(3)(B), the statute is unconstitutional. See Maj. Op. at 2. The majority
argues that we should employ the canon of constitutional avoidance to save
§ 924(c)(3)(B) because the statute can plausibly be interpreted to incorporate a
“conduct-based approach”—one that looks to the “real-world facts of the
defendant’s offense” instead of how the law defines the crime or what conduct is
entailed in the ordinary case. Maj. Op. at 3. The problem with the majority’s
approach is that its alternative way of reading § 924(c)(3)(B) to permit a conduct-
based approach is simply not plausible when we remain faithful to the text of the
statute.
So how does the majority get there? Sifting through Supreme Court cases
applying the categorical approach to ACCA and § 16, the majority identifies six
factors that led the Supreme Court to apply the categorical approach in those
105
Case: 17-10172 Date Filed: 10/04/2018 Page: 106 of 153
instances. It then applies those factors to § 924(c)(3)(B) and—finding many of
them missing or inapplicable—determines that this statute plausibly could be read
differently. But only three of the majority’s factors concern the text. And the
majority’s analysis of its factors, both textual and extra-textual, is in my view
deeply flawed. If we follow what the Supreme Court said about the text of the
other two statutes and apply it to § 924(c) as a whole and in context, we find that
§ 924(c)(3)(B) presents an even stronger case for applying the categorical approach
than the other statutes—so strong that no other reading is plausible.
I.
To understand why the approach the Supreme Court used in Dimaya,
Johnson, and other precedent interpreting similarly-worded legislation controls the
outcome of this case, some background on that precedent and the other legislation
is unavoidable. In this section I first discuss three statutes, all of which Congress
enacted or revised as part of an overhaul of the criminal code in the mid-1980s:
the statute at issue here, 18 U.S.C. § 924(c), particularly its definition of “crime of
violence”; a definition of “crime of violence” found in 18 U.S.C. § 16 that is
applied in numerous criminal and noncriminal contexts; and ACCA, 18 U.S.C.
§ 924(e). Next I review a line of Supreme Court and circuit decisions that have
explained the necessity of construing these statutes using the categorical approach.
Finally, I discuss the decisions striking as unconstitutionally vague similar
106
Case: 17-10172 Date Filed: 10/04/2018 Page: 107 of 153
language in ACCA and identical language in § 16, as well as decisions framing the
limits of the canon of constitutional avoidance. These decisions bear directly on
whether § 924(c)(3)(B) is unconstitutionally vague.
A. The Statutes
In the mid-1980s, Congress, as part of a movement to get tougher on crime,
passed the Comprehensive Crime Control Act of 1984 (the “CCCA”), which
overhauled the federal criminal code for the first time in over half a century. Pub.
L. No. 98-473, 98 Stat. 1976 (1984); see also S. Rep. No. 98-225, at 2 (1983)
(discussing the CCCA’s purpose of “restor[ing] a proper balance between the
forces of law and the forces of lawlessness”). The CCCA “broadly reformed the
federal criminal code in such areas as sentencing, bail, and drug enforcement, and
. . . added a variety of new violent and nonviolent offenses.” Leocal, 543 U.S. at 6.
The CCCA either enacted or revised all three of the statutes that are relevant to this
case: § 924(c), § 16, and ACCA. See Pub. L. No. 98-473, 98 Stat. 2136, 2138,
2185 (1984); Leocal, 543 U.S. at 6 (explaining § 16’s enactment as part of the
CCCA); United States v. Hill, 863 F.2d 1575, 1579 (11th Cir. 1989) (“The
genealogy of [§] 924 traces back to the Armed Career Criminal Act of 1984, which
was enacted as a part of the Comprehensive Crime Control Act of 1984.”),
abrogated on other grounds by Taylor v. United States, 495 U.S. 575 (1990); infra
note 2 (describing § 924(c)’s revision as part of the CCCA).
107
Case: 17-10172 Date Filed: 10/04/2018 Page: 108 of 153
The statute at issue here, 18 U.S.C. § 924(c), revised in the CCCA, 2
criminalizes and imposes mandatory enhanced sentences for using or carrying a
firearm “during and in relation to any crime of violence or drug trafficking crime”
or possessing a firearm in furtherance of such a crime. 18 U.S.C. § 924(c)(1)(A).
The “crime of violence or drug trafficking crime” must be committed “during”—
that is, at the same time as—the firearm use or possession. “[D]rug trafficking
crime” is defined in § 924(c) as “any felony punishable under the Controlled
Substances Act” and a couple of other federal drug laws. Id. § 924(c)(2).
“[C]rime of violence”—the focus of our inquiry—has a two part definition:
For purposes of this subsection the term “crime of violence” means an
offense that is a felony and—
(A) has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force
against the person or property of another may be used in the
course of committing the offense.
Id. § 924(c)(3). Subsection (c)(3)(A) of this definition is known as the “elements
clause,” and subsection (c)(3)(B) is known as the “residual clause.” This case is
about the residual clause. The residual clause acts as a catchall for violent crimes
2
“Prior to 1984, § 924(c) provided for the imprisonment of one who uses a firearm to commit
any felony. In 1984, as part of the [CCCA], Congress revised that rule and provided that the
firearm penalty should apply only to those who engaged in a crime of violence.” United States v.
Cruz, 805 F.2d 1464, 1470 (11th Cir. 1986) (citations and internal quotation marks omitted). By
revising § 924(c), Congress narrowed the text to fit the manner in which prosecutors typically
had employed the statute since its enactment. Id. at 1471.
108
Case: 17-10172 Date Filed: 10/04/2018 Page: 109 of 153
that do not meet the elements clause definition, so long as those crimes satisfy the
residual clause’s criteria.
Section 924(c) is one of several CCCA statutes to address crimes of
violence. Another is 18 U.S.C. § 16, which “provide[s] . . . a general definition of
the term ‘crime of violence’ to be used throughout the [CCCA],” including “for
defining the elements of particular [criminal] offenses.” Leocal, 543 U.S. at 6.
Like § 924(c), until recently §16 defined “crime of violence” using both an
elements clause and a residual clause:
The term “crime of violence” means—
(a) an offense that has as an element the use, attempted use, or threatened
use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a
substantial risk that physical force against the person or property of
another may be used in the course of committing the offense.
18 U.S.C. § 16. Section 16’s residual clause, § 16(b), which is “essentially
identical to § 924(c)(3)’s residual clause at issue here,” Maj. Op. at 10, was struck
down as unconstitutional in Dimaya.
Since passage of the CCCA, § 16’s general “crime of violence” definition
“has . . . been incorporated into a variety of statutory provisions, both criminal and
noncriminal.” Leocal, 543 U.S. at 7. Section 16’s definition also was incorporated
into provisions of the Immigration and Nationality Act (“INA”), including a
provision that permits deportation of a noncitizen convicted of an “aggravated
109
Case: 17-10172 Date Filed: 10/04/2018 Page: 110 of 153
felony,” which includes any “crime of violence” as defined in § 16. 8 U.S.C.
§ 1227(a)(2)(A)(iii); see id. § 1101(a)(43)(F). I discuss this provision, which was
the subject of the Supreme Court’s decision in Leocal, in more detail later. But I
pause briefly to note that the majority focuses solely on § 16’s incorporation into
the INA, qualifying as such its references to § 16(b) at least half a dozen times, and
omitting reference to all of the other ways in which § 16 is incorporated into the
federal code. The effect of this narrowing is that the majority focuses myopically
on § 16 as applied to prior crimes, rather than as it is incorporated into offenses
with other contemporaneously occurring elements. The majority’s distinction is an
artificial one because we are required to “interpret the statute consistently, whether
we encounter its application in a criminal or noncriminal context.” Leocal, 543
U.S. at 11 n.8.
In fact, for the vast majority of instances where § 16’s definition is
incorporated into the criminal code, the “crime of violence” element is committed
at the same time as the offense’s other elements. For example, 18 U.S.C. § 25
criminalizes and provides penalties for an adult “who intentionally uses a minor to
commit a crime of violence,” as that term is defined in § 16. A person who
violates § 25 commits the “crime of violence” element at the same time as the
110
Case: 17-10172 Date Filed: 10/04/2018 Page: 111 of 153
offense’s other elements. 3 And so many incorporations of § 16 function very
similarly to the incorporation of the “crime of violence” definition in § 924(c)(3)—
the elements and residual clauses—into § 924(c)(1)—which contains the offense’s
other elements: using, carrying, or possessing a firearm during (at the same time
as) and in relation to (to facilitate) the predicate crime of violence or drug
trafficking crime. 4
3
Other incorporations of § 16 in this manner abound. See, e.g., 18 U.S.C. § 119(a)(1)
(criminalizing knowingly making public restricted personal information about certain persons
performing official duties “with the intent to threaten, intimidate, or incite the commission of a
crime of violence against that covered person” or a member of the person’s family); 18 U.S.C.
§ 842(p)(2)(A) (forbidding the teaching or demonstrating of how to make an explosive device
with the intent that the teaching “be used for, or in furtherance of, an activity that constitutes a
Federal crime of violence”); 18 U.S.C. § 1952(a)(2) (criminalizing interstate travel with intent to
“commit any crime of violence to further any unlawful activity”); 18 U.S.C. § 1956(a)(1),
(c)(7)(B)(ii) (incorporating § 16’s crime of violence definition into the money laundering
statute); 18 U.S.C. § 1959(a)(4) (enhancing penalties for violent crime in aid of racketeering
where a defendant threatens to commit a crime of violence); 18 U.S.C. § 2261(a)(1)
(criminalizing interstate travel to commit a crime of violence against a domestic partner); 18
U.S.C. § 3663A(c)(1)(A)(i) (incorporating § 16’s crime of violence definition into the
Mandatory Victims Restitution Act, which requires an award of restitution if the defendant is
convicted of a crime of violence). Section 16 also is incorporated into the definitions of other
noncriminal statutes. See, e.g., 34 U.S.C. § 30503(a)(1)(A) (providing, in the federal hate crimes
statute, federal assistance for the prosecution of any “crime of violence”); 34 U.S.C.
§ 12361(d)(2)(A) (incorporating § 16’s crime of violence definition into the definition of “crime
of violence motivated by gender” in the Violence Against Women Act).
4
I use “elements” here to describe the set of facts and circumstances the government must prove
to obtain a conviction. I recognize that the Supreme Court has characterized § 924(c) as having
only two elements. See, e.g., Smith v. United States, 508 U.S. 223, 228 (1993) (“First, the
prosecution must demonstrate that the defendant ‘use[d] or carrie[d] a firearm.’ Second, it must
prove that the use or carrying was ‘during and in relation to’ a ‘crime of violence or drug
trafficking crime.’” (quoting 18 U.S.C. § 924(c))). But it is beyond dispute that, broken down,
§ 924(c) requires the government to prove five separate facts: the defendant’s (1) knowing (2)
use or carrying of a firearm, (3) during, (4) and in relation to (5) a crime of violence or drug
trafficking crime. See id. at 238 (explaining that the government must prove both that the
firearm was knowingly used or carried “during” and “in relation to” the predicate offense); 11th
Cir. Pattern Jury Instructions 35.2 (18 U.S.C. § 924(c)(1)(A)).
111
Case: 17-10172 Date Filed: 10/04/2018 Page: 112 of 153
Yet another (and for our purposes, the last) CCCA statute to address crimes
of violence is ACCA. ACCA, enacted as part of the CCCA, imposes a mandatory
15-year term of imprisonment on a person convicted of being a felon in possession
of a firearm who previously was convicted of three serious drug offenses, violent
felonies, or both. ACCA defines “violent felony” like this:
[A]ny crime punishable by imprisonment for a term exceeding one
year . . . that—
(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk
of physical injury to another[.]
Id. § 924(e)(2)(B). Like § 924(c) and § 16, ACCA has an elements clause,
subsection (i), and it had—until the Supreme Court struck it down as
unconstitutionally vague—a residual clause, which in subsection (ii) began with
“or otherwise . . . .” The balance of subsection (ii) is known as the “enumerated
crimes clause.”
Section 924(c), § 16, and ACCA, all either enacted or revised as part of one
comprehensive piece of legislation, are notably similar in their text. All three
statutes, until the majority’s decision today, have been analyzed using the same
“categorical approach.” I discuss this approach in the next subsection.
112
Case: 17-10172 Date Filed: 10/04/2018 Page: 113 of 153
B. The Categorical Approach that Has Governed All Three Statutes
When Congress passed the CCCA, in which it revised § 924(c) to include a
“crime of violence” definition and enacted § 16 and ACCA, it did so with the
expressed intention to capture certain crimes—not conduct—as crimes of violence.
See generally Taylor, 495 U.S. at 581-90, 601; see also infra at 40-41 (describing
Senate Report expressing Congress’s intent to capture certain “statutes,” such as
the federal bank robbery statute, in § 924(c)’s definition of “crime of violence”).
The Supreme Court gave effect to Congress’s expressed intent when the Court
interpreted ACCA, which, again, imposes enhanced sentences when a defendant
has been convicted of prior crimes that meet ACCA’s definition of “violent
felony.” The Court explained that ACCA “always has embodied a categorical
approach to the designation of predicate offenses.” Taylor, 495 U.S. 588
(emphasis added).5 To decide which prior crimes qualify as predicate offenses, the
Supreme Court said, courts must look not to whether the defendant’s actual
conduct in committing the crime was violent, but rather to whether the statute
creating the crime described a violent offense. See id. at 600.
5
The majority therefore is incorrect when it says that the Supreme Court “conceived” the
categorical approach in Taylor, see Maj. Op. at 20, because in Taylor the Supreme Court
explained that the statute “always” has embodied the categorical approach. In other words, the
categorical approach is not a pure judicial creation; rather, it is a judicial explanation of
congressional intent.
113
Case: 17-10172 Date Filed: 10/04/2018 Page: 114 of 153
When in Taylor the Supreme Court first described the categorical approach,
it did so in the context of ACCA’s enumerated crimes clause. The Court based its
holding—that a categorical, rather than a factual or conduct-based, approach must
be used—primarily on ACCA’s text as a whole, but also on ACCA’s legislative
history and because construing it with a conduct-based approach would lead to
practical problems in criminal proceedings. The Court first explained that
ACCA’s text “generally supports” a categorical approach because it refers to
“convictions,” not commissions of an offense, and because its elements clause
refers to a statute’s “element[s],” not to any particular facts or conduct. Id. “Read
in this context,” the Court said, the enumerated crimes clause should be read
categorically. Id. at 600-01. Second, the Court noted, “the legislative history of
[ACCA] shows that Congress generally took a categorical approach to predicate
offenses.” Id. at 601. Third, the Court observed that “the practical difficulties and
potential unfairness of a factual approach are daunting.” Id. Specifically, the
Court worried that a conduct-based approach would lead to mini-trials where the
government would seek to prove to a jury, and the defense would seek to rebut, the
circumstances of prior—maybe even long prior—offenses. Id. at 601-02. The
Court also doubted that a sentencing court, rather than a jury, would be able to
make these findings because doing so might draw a Sixth Amendment challenge.
Id. at 602.
114
Case: 17-10172 Date Filed: 10/04/2018 Page: 115 of 153
After Taylor, the Supreme Court held that the categorical approach must be
applied to ACCA’s elements and residual clauses as well. See Curtis Johnson v.
United States, 559 U.S. 133, 137 (2010) (applying the categorical approach to
ACCA’s elements clause); James v. United States, 550 U.S. 192, 208 (2007),
overruled on other grounds by Johnson, 135 S. Ct. at 2551 (applying the
categorical approach to ACCA’s residual clause). As applied to a residual clause,
essentially a catchall provision, the Court said that the categorical approach
requires courts to decide “whether the conduct encompassed by the elements of the
offense, in the ordinary case, presents” a risk that satisfies the risk standard in the
statute—in ACCA, “serious potential risk.” James 550 U.S. at 208; see Dimaya,
138 S. Ct. at 1211 (explaining that the “ordinary case” analysis applies to § 16(b)
such that courts must decide whether the conduct encompassed by the elements of
the offense, in the ordinary case, presents a risk that satisfies the risk standard in
§ 16(b)—“a substantial risk that physical force . . . may be used”).
In contrast to its multi-factored reasoning in Taylor, when the Supreme
Court first construed § 16, it applied the categorical approach based solely on the
text of the statute, without reference to legislative history or practical concerns.
And it said this construction was not merely optimal, but required. Specifically, in
Leocal, a unanimous Supreme Court explained that “[i]n determining whether the
petitioner’s conviction falls within the ambit of § 16, the statute directs our focus to
115
Case: 17-10172 Date Filed: 10/04/2018 Page: 116 of 153
the ‘offense’ of conviction.” Leocal, 543 U.S. at 7 (construing § 16 as
incorporated into the INA). The term “offense,” the Court noted, was present in
both § 16(a), the elements clause, and § 16(b), the residual clause. Additionally,
for the residual clause, the Court emphasized that the “offense” was one that “by its
nature” involved a substantial risk that physical force may be used. Id. (emphasis
in original). The Supreme Court said, in no uncertain terms, that “[t]his language
requires us to look to the elements and the nature of the offense of conviction,
rather than to the particular facts relating to [the] petitioner’s crime.” Id. (emphasis
added). This bears repeating: unanimously, and based on the statute’s text alone,
the Supreme Court said that the crime of violence definition in § 16 requires a
categorical approach. As I mentioned above, the Court also noted that “[a]lthough
[it was construing] § 16 in the deportation context, § 16 is a criminal statute, and it
has both criminal and noncriminal applications.” Id. at 11 n.8. The Court
explained that it was required to “interpret the statute consistently, whether [it]
encounter[ed] its application in a criminal or noncriminal context.” Id.
When it came to construing § 924(c)(3), in United States v. McGuire this
Court used the same textual analysis to explain why the categorical approach must
be used. 706 F.3d 1333, 1336-37 (11th Cir. 2013). Justice O’Connor, sitting by
designation with our Court, explained:
We employ this categorical approach because of the statute’s terms:
It asks whether [the defendant] committed “an offense” that “has as
116
Case: 17-10172 Date Filed: 10/04/2018 Page: 117 of 153
an element the use, attempted use, or threatened use of physical force
against the person or property of another,” or that “by its nature,
involves a substantial risk that physical force against the person or
property of another may be used.”
Id. (emphasis in original) (quoting 18 U.S.C. § 924(c)(3)). McGuire held that
§ 924(c), just like § 16, by its terms required a categorical approach. Since
McGuire, our Court has continued to apply the categorical approach to
§ 924(c)(3)(B) until today, and we have been in good company doing so. All but
two circuits apply the categorical approach to § 924(c). 6
C. Johnson, Dimaya, and the Role of the Canon of Constitutional
Avoidance
The majority agrees that if the categorical approach must be used, then based
on Dimaya § 924(c)’s residual clause is unconstitutionally vague. The question is
whether the Supreme Court’s decisions—spanning from 1990 to 2018—that the
categorical approach must be applied to language like § 924(c)’s can be side-
stepped due to the canon of constitutional avoidance. In this section I discuss the
Supreme Court’s reasoning in these decisions. I also discuss the evolution of the
6
See United States v. Taylor, 848 F.3d 476, 491 (1st Cir. 2017); United States v. Fuertes, 805 F.
3d 485, 498 (4th Cir. 2015); United States v. Buck, 847 F.3d 267, 274 (5th Cir. 2017); United
States v. Gooch, 850 F.3d 285, 290 (6th Cir. 2017); United States v. Cardena, 842 F.3d 959, 996
(7th Cir. 2016); United States v. Prickett, 839 F.3d 697, 698 (8th Cir. 2016); United States v.
Mendez, 992 F.2d 1488, 1490 (9th Cir. 1993); United States v. Salas, 889 F.3d 681, 686 (10th
Cir. 2018); United States v. Eshetu, 898 F.3d 36, 37 (D.C. Cir. 2018); but see United States v.
Barrett, __ F.3d ___, 2018 WL 4288566 (2d Cir. Sept. 10, 2018) (applying a conduct-based
reading of § 924(c)(3)(B) to uphold it); United States v. Robinson, 844 F.3d 137 (3d Cir. 2016)
(holding, prior to Dimaya that a categorical approach should not be applied to § 924(c)).
117
Case: 17-10172 Date Filed: 10/04/2018 Page: 118 of 153
canon of constitutional avoidance in this setting and how a minority of the Justices
have advocated unsuccessfully for its use to save ACCA’s and § 16(b)’s residual
clauses.
After wrestling with ACCA’s residual clause on several occasions, the
Supreme Court in Johnson struck it as void for vagueness. 135 S. Ct. at 2557. The
Court’s majority explained that “[t]wo features of the residual clause conspire to
make it unconstitutionally vague.” Id. “In the first place, the residual clause
leaves grave uncertainty about how to estimate the risk posed by a crime. It ties
the judicial assessment of risk to a judicially imagined ‘ordinary case’ of a crime,
not to real-world facts or statutory elements.” Id. Second, “the residual clause
leaves uncertainty about how much risk it takes for a crime to qualify as a violent
felony. It is one thing to apply an imprecise ‘serious potential risk’ standard to
real-world facts; it is quite another to apply it to a judge-imagined abstraction.” Id.
at 2558. The Court concluded, “[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. It
was, therefore, the necessity of applying the categorical approach that rendered
ACCA’s residual clause unconstitutionally vague.
118
Case: 17-10172 Date Filed: 10/04/2018 Page: 119 of 153
Justice Alito dissented in Johnson. He argued that the Court should have
employed the canon of constitutional avoidance to save ACCA’s residual clause by
adopting a conduct-based approach like the majority adopts here. Id. at 2578
(Alito, J., dissenting). Justice Alito noted that ACCA’s residual clause referred to
“conduct that presents a serious potential risk of physical injury to another” and
therefore plausibly could refer “to things done during the commission of an offense
that are not part of the elements needed for conviction.” Id. (emphasis added).
The majority rejected his approach, noting that the government had not urged the
Court to abandon the categorical approach and explaining that “Taylor had good
reasons to adopt” it, including the statute’s text and practical problems resulting
from a conduct-based approach. See id. at 2562 (majority opinion).
When Johnson was decided, though, it was an open question whether extra-
textual factors—such as the government’s concessions and practical
considerations—could play a role in the decision whether to invoke the canon of
constitutional avoidance to save a statute. In Zadvydas v. Davis, the Supreme
Court construed an INA statute providing that a noncitizen under an order of
removal whom the government has not removed within the 90-day statutory
removal period “‘may be detained beyond the removal period.’” 533 U.S. 678,
682 (2001) (quoting 8 U.S.C. § 1231(a)(6)). The Court, concerned that indefinite
detention would raise serious due process concerns, read a limitation into the
119
Case: 17-10172 Date Filed: 10/04/2018 Page: 120 of 153
statute: the noncitizen could only be detained for a reasonable time. Id. at 682,
689-90. To define the reasonable time limitation on detention, a presumptive six
months, the Court looked to extra-textual factors including Congressional intent,
practical difficulties in obtaining removal in a shorter time, and the need to
promote uniform administration in the federal courts. Id. at 701. So, at the time
Johnson was decided, Zadvydas could have been read to permit considerations
outside the text to play a role in whether the court should invoke the canon of
constitutional avoidance. See, e.g., Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir.
2015), reversed by Jennings v. Rodriguez, 138 S. Ct. 830, 852 (2018).
This year, however, the Supreme Court put any lack of clarity in Zadvydas
to rest. In Rodriguez, the Court clarified that “[t]he canon of constitutional
avoidance comes into play only when, after the application of ordinary textual
analysis, the statute is found to be susceptible of more than one construction. In
the absence of more than one plausible construction, the canon simply has no
application.” Rodriguez, 138 S. Ct. at 842 (emphasis added) (internal quotation
marks and citation omitted). The Court characterized its prior holding in Zadvydas
as “a notably generous application of the constitutional-avoidance canon.” Id. at
843. In Zadvydas, the Rodriguez majority explained, the Court had “detected
ambiguity” in the statute’s use of “may be detained” and only then looked to extra-
textual considerations to determine a limitation on the length of detention that
120
Case: 17-10172 Date Filed: 10/04/2018 Page: 121 of 153
would avoid a potential due process problem. Id. at 834. After Rodriguez, there
can be no doubt that the only consideration relevant to the constitutional avoidance
question is the text. Only if the text is ambiguous can the canon of constitutional
avoidance be employed. And only if the canon of constitutional avoidance is
employed can we examine extra-textual considerations.
Later in the term, the Supreme Court struck § 16’s residual clause as
unconstitutionally vague. See Dimaya, 138 S. Ct. at 1216 (majority opinion).7 The
Court reasoned that § 16(b), like ACCA’s residual clause, first “calls for a court to
identify a crime’s ‘ordinary case’ in order to measure the crime's risk.” Id. at 1215.
And “[n]othing in § 16(b) helps courts to perform that task, just as nothing in
ACCA did.” Id. Second, § 16(b) creates “uncertainty about the level of risk that
makes a crime ‘violent.’” Id. Section 16(b)’s “substantial risk” standard, the
Supreme Court explained, is no more determinate than ACCA’s “serious potential
risk” standard. Id. Combined, the categorical approach and uncertain risk standard
7
Dimaya resulted in a somewhat fractured decision. Justice Kagan, writing for a majority of the
Court, struck § 16(b) as unconstitutionally vague. 138 S. Ct. at 1213-16, 1218-23 (majority
opinion). She also wrote for a plurality of the Court to explain why the categorical approach
must apply to that statute. See id. at 1216-18 (plurality opinion). Justice Gorsuch, who supplied
the fifth vote to Justice Kagan’s majority opinion, wrote separately to explain his view of the
vagueness doctrine and noted that that he “proceeded on the premise” that the categorical
approach applied to § 16(b) rather than “wip[ing] the precedential slate clean.” Id. at 1232-33
(Gorsuch, J., concurring in part and concurring in the judgment). Chief Justice Roberts, in a
dissent joined by Justices Kennedy, Thomas, and Alito, argued that § 16(b), read categorically,
“does not give rise to the concerns that drove the Court’s decision in Johnson” and therefore was
constitutional. Id. at 1234-41 (Roberts, C.J., dissenting). Justice Thomas, joined by Justices
Kennedy and Alito, argued in a separate dissent that the Court should have employed the canon
of constitutional avoidance to save the statute. Id. at 1254-59 (Thomas, J., dissenting).
121
Case: 17-10172 Date Filed: 10/04/2018 Page: 122 of 153
rendered § 16(b) more unpredictable and more arbitrary than due process can
tolerate. Id. at 1215-16.
Again, as in Johnson, a dissent argued that the Court should have employed
the canon of constitutional avoidance to save the residual clause. Id. at 1254-59
(Thomas, J., dissenting). Justice Thomas, joined by Justices Kennedy and Alito,
announced that “[t]he text of § 16(b) does not require a categorical approach,” id.
at 1254, despite Leocal’s holding that the text of § 16(b) “requires” a categorical
approach. Leocal, 543 U.S. at 7. A majority of the Justices—the plurality of four
Justices plus Chief Justice Roberts in a separate dissent—rejected Justice
Thomas’s view that § 16(b) is amenable to more than one reading. The plurality,
now constrained by Rodriguez, explained why the text of § 16(b) required a
categorical approach: by referring to an “offense” that “by its nature” involves the
risk that force may be used, said the plurality, the statute’s text “demands” a
categorical approach. Id. at 1217 (plurality opinion). Noting Johnson’s additional
reasons for declining to adopt a conduct-based approach—including the
government’s concession that the categorical approach applied and potential
practical problems with a conduct-based approach—the plurality explained that
none of these things mattered because “§ 16(b)’s text creates no draw.” Id. (citing
Leocal, 543 U.S. at 7). The plurality concluded that “[t]he upshot of all of this
textual evidence is that § 16’s residual clause—like ACCA’s, except still more
122
Case: 17-10172 Date Filed: 10/04/2018 Page: 123 of 153
plainly—has no plausible fact-based reading.” 8 Id. at 1218 (emphasis added)
(internal quotation marks omitted); see id. at 1235-36 (Roberts, C.J., dissenting)
(reaffirming the validity of the Supreme Court’s unanimous holding in Leocal and
applying the categorical approach to § 16(b)).
II.
Section 924(c)’s residual clause is void for vagueness for precisely the same
reasons that its twin, § 16(b), is void for vagueness. First, the categorical
approach—which the Supreme Court said must be applied to text identical to
§ 924(c)(3)(B)—requires courts to imagine the ordinary case of an offense. And
“[n]othing [in the statute] helps courts to perform that task.” Dimaya, 138 S. Ct. at
1215 (majority opinion). Second, the “substantial risk” standard in § 924(c)(3)(B)
is indeterminate at best, creating “uncertainty about the level of risk that makes a
crime ‘violent.’” Id. Combined, these two features of § 924(c)(3)(B) create
“‘more unpredictability and arbitrariness than the Due Process Clause tolerates.’”
Id. at 1216 (quoting Johnson, 135 S. Ct. at 2561).
The majority, in an attempt to salvage § 924(c)’s residual clause, tosses out
the categorical approach in the name of constitutional avoidance. The majority
8
Although Dimaya interpreted § 16(b) as incorporated into the INA specifically, the plurality
expressly acknowledged that, “as we have said before, § 16(b) is a criminal statute with
applications outside the immigration context,” so there was “no ground for discovering a novel
interpretation of § 16(b),” as applied to the INA. 138 S. Ct. at 1218 (plurality opinion).
123
Case: 17-10172 Date Filed: 10/04/2018 Page: 124 of 153
acknowledges that the categorical approach must be applied to the definitions of
drug trafficking crime and of crime of violence in § 924(c)(3)’s elements clause,
but holds that a conduct-based approach at least plausibly applies to the definition
of crime of violence in § 924(c)(3)’s residual clause. In adopting a conduct-based
approach to § 924(c)(3)(B)—and thus overruling in part our decision in
McGuire—the majority contorts the plain text of the statute and reads similar
structure and language differently within the same statute. The majority does so in
disregard of the Supreme Court’s unequivocal statement in Leocal that language
identical to § 924(c)(3)(B) requires a categorical approach—that is, it cannot
plausibly be read another way. And the majority does so in disregard of the
Supreme Court’s admonition that in deciding whether to employ the canon of
constitutional avoidance we must look to a statute’s text alone. The majority
effectively rewrites the statute to avoid having to strike it down.
To reach this result, the majority distills from Taylor and its progeny a
multi-factor test for deciding whether we should apply the categorical approach to
§ 924(c)(3)(B). Only three of the majority’s six factors are text-based, and they
appear seemingly on an even playing field with three other extra-textual
“considerations.” Maj. Op. at 27-28. Even if these extra-textual considerations
mattered before Rodriguez, they do not matter now. What we know now is that if
a purely textual analysis leads to only “one plausible construction, the canon [of
124
Case: 17-10172 Date Filed: 10/04/2018 Page: 125 of 153
constitutional avoidance] simply has no application.” Rodriguez, 138 S. Ct. at 842
(internal quotation marks omitted). Below I explain why the majority’s textual
analysis, contained in three of its six factors, is incorrect and clearly in
contravention of Supreme Court precedent. I then explain why the majority’s
explanation of its other extra-textual factors—which cannot be relevant factors at
all—is flawed as well.
A. The Text of Section 924(c) Permits Only One Reading: that the
Categorical Approach Is Required.
The question we must ask in this case is whether the text of § 924(c)(3)(B)
plausibly can be read to support a conduct-based approach rather than a categorical
one. If not, the inquiry ends, and § 924(c)(3)(B) is unconstitutional. The answer is
that it cannot. Section 924(c)’s text, read as a whole, in its statutory context, and
with the Supreme Court’s guidance, cannot plausibly be read to permit a conduct-
based approach to the residual clause.
First of all, the Supreme Court has already told us that a categorical
approach is the only approach we can take to this text. In Leocal, the Supreme
Court unanimously explained that the text of § 16(b)—“identical” to the language
in § 924(c)(3)(B), Maj. Op. at 10, 16——“requires us to look to . . . the nature of
the offense of conviction, rather than to the particular facts relating to [the] crime”
because the text includes “offense” in conjunction with “by its nature.” Leocal,
543 U.S. at 7 (emphasis added); see Dimaya, 138 S. Ct. at 1217-18 (plurality
125
Case: 17-10172 Date Filed: 10/04/2018 Page: 126 of 153
opinion) (describing why § 16(b)’s language—specifically, “offense that is a
felony and . . . that by its nature”—“has no plausible fact-based reading” (internal
quotation marks omitted)); id. at 1235-36 (Roberts, C.J., dissenting) (reaffirming
the validity of the Supreme Court’s unanimous holding in Leocal that the
categorical approach must be used to interpret § 16(b)). The Supreme Court did
not say that this text merely suggests a categorical approach, nor did it leave room
for us to conclude that the text is amenable to more than one reading. Instead, the
Court said the text requires a categorical approach. Leocal, 543 U.S. at 7; see also
Dimaya, 138 S. Ct. at 1218 (plurality opinion) (“The upshot of all of this textual
evidence is that § 16’s residual clause—like ACCA’s, except still more plainly—
has no plausible fact-based reading.” (internal quotation marks omitted)).9 Text
cannot both require a categorical approach and also plausibly support a conduct-
based approach.
9
When the majority says that “[o]nly a plurality of the [Supreme] Court concluded that [§ 16(b)]
actually requires the categorical approach,” Maj. Op. at 15, it fails to account for Leocal. No
doubt realizing this shortcoming, the majority rationalizes that “the Leocal Court didn’t provide a
detailed explanation” when it held that § 16(b)’s language requires a categorical approach. Maj.
Op. at 23. But the Court did provide an explanation—a textual one. See supra at 14-15. We are
not free to ignore the Supreme Court’s decisions, whatever their level of detail. Nor, for that
matter, are we free to ignore Leocal even if we might question whether its unanimous
proclamation that § 16 requires a categorical approach remains good law in light of Dimaya’s
invalidation of § 16(b). “The [Supreme] Court has told us, over and over again, to follow any of
its decisions that directly applies in a case, even if the reasoning of that decision appears to have
been rejected in later decisions and leave to that Court the prerogative of overruling its own
decisions.” Evans v. Sec’y, Fla. Dep’t of Corr., 699 F.3d 1249, 1263 (11th Cir. 2012) (internal
quotation marks omitted).
126
Case: 17-10172 Date Filed: 10/04/2018 Page: 127 of 153
The reasoning behind Leocal’s holding applies with at least equal force to
§ 924(c). To recap, § 924(c)’s “crime of violence” definition looks like this:
For purposes of this subsection the term “crime of violence” means an
offense that is a felony and—
(A) has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force
against the person or property of another may be used in the
course of committing the offense.
18 U.S.C. § 924(c)(3). “[O]ffense that is a felony,” language that required a
categorical approach to § 16(b), is part of the definition of “crime of violence” in
both the residual clause and the elements clause, and no one disputes that the latter
requires a categorical approach. “[W]here . . . Congress uses similar statutory
language and similar statutory structure in two adjoining provisions, it normally
intends similar interpretations.” Nijhawan v. Holder, 557 U.S. 29, 39 (2009).
Since “offense that is a felony” in the elements clause is categorical language, the
same words in the adjoining residual clause must be, too. And we know from
Leocal that “by its nature,” present in § 16(b) and in § 924(c)(3)(B), is categorical
language. Leocal, 543 U.S. at 7.
There is additional textual support for a categorical reading of
§ 924(c)(3)(B) beyond the “crime of violence” definition. The categorical
approach also applies, without a doubt, to the other possible predicate offense, a
127
Case: 17-10172 Date Filed: 10/04/2018 Page: 128 of 153
“drug trafficking crime.” See 18 U.S.C. § 924(c)(2). That the categorical
approach applies to the drug trafficking crime definition as well as the elements
clause’s crime of violence definition is evidence that the same approach must also
apply to the residual clause’s crime of violence definition. Nijhawan, 557 U.S. at
39; see U.S. Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 455
(1993) (“Statutory construction is a holistic endeavor, and, at a minimum, must
account for a statute’s full text, language as well as punctuation, structure, and
subject matter.” (internal quotation marks and citation omitted)).
The text of § 924 as a whole further supports a categorical reading of
§ 924(c). Section 924 also contains ACCA, § 924(e). The statutes are unique in
establishing mandatory minimum sentences for federal firearms offenses. See U.S.
Sentencing Comm’n, Mandatory Minimum Penalties for Firearms Offenses in the
Federal Criminal Justice System 2 (2018). The Supreme Court has, without
exception, construed ACCA (including, when it was in effect, its residual clause)
to require a categorical approach. Taking an even broader look at the statutory
scheme, we know that § 924(c), ACCA, and § 16 all were created or amended as
part of the same legislative action, the CCCA. The use of very similar residual
clauses in these statutes is more evidence still that Congress intended the same
categorical meaning for § 924(c)(3)(B). See Rodriguez, 138 S. Ct. at 845 (rejecting
construction of an immigration statute that was “incompatible with the rest of the
128
Case: 17-10172 Date Filed: 10/04/2018 Page: 129 of 153
statute” and explaining that only one reading of the statute “makes sense in the
context of the statutory scheme as a whole”).
None of the majority’s three text-based factors convinces me that
§ 924(c)(3)(B) plausibly can be read to support a conduct-based approach. Nor am
I persuaded that we can divine the meaning of one clause of a statute by breaking it
down word by word and isolating those words from their surrounding context. See
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts § 2, at 56 (2012) (“The words of a governing text are of paramount concern,
and what they convey, in their context, is what the text means.”). Indeed, by
separating the text of § 924(c) into three “considerations” that are hardly separate
ideas, the majority performs a sleight of hand that, the Supreme Court has told us
on numerous occasions, has no place in textual analysis. See, e.g., Rodriguez, 138
S. Ct. at 845. Even picked apart, though, the words do not support majority’s
interpretation.
The majority’s three textual considerations or factors are: “the text of
[ACCA’s] operative provisions focused not on conduct, but rather on
‘convictions’—and thus . . . solely on formal legal elements” (factor 2 of the
majority’s six-factor test); ACCA’s and § 16’s “definitional provisions used terms
and phrases like ‘offense,’ ‘felony,’ and ‘by its nature,’ which . . . pointed toward a
categorical (rather than conduct-based) inquiry” (factor 3); and “those statutes
129
Case: 17-10172 Date Filed: 10/04/2018 Page: 130 of 153
lacked any reference to the underlying crime’s commission or circumstances”
(factor 4). Maj. Op. at 27. I address them in turn.
1. The “Operative Provision” of Section 924(c) Does Not Permit a
Conduct-Based Approach to the Residual Clause.
In its analysis of § 924(c)’s text, the majority first notes that what it deems
ACCA’s “operative provision”—“[a]ny person who violates [18 U.S.C. § 922(g)]
and has three previous convictions . . . for a violent felony or a serious drug
offense, or both”—refers to “convictions” rather than underlying conduct, yet there
is no reference to “convictions” in § 924(c)’s “operative provision,” § 924(c)(1).
Rather, the majority says, § 924(c)(1) “refers to conduct,” Maj. Op. at 30-31
(emphasis in original), pointing to the language that “any person who, during and
in relation to any crime of violence . . . uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm,” id. (quoting § 924(c)(1)(A)).
According to the majority, this language offers strong support for applying a
conduct-based approach to the statute’s residual clause.
I find the majority’s argument unpersuasive for at least two reasons. First,
setting aside for now comparisons to other statutes, the language in § 924(c)(1) that
the majority insists “refer[s] exclusively to conduct,” Maj. Op. at 37, cannot bear
the weight the majority places on it. Section 924(c)(1) makes it a federal crime to
use, carry, or possess a firearm “during and in relation to” one of three categories
of crimes: drug trafficking crimes, elements-clause crimes of violence, or residual-
130
Case: 17-10172 Date Filed: 10/04/2018 Page: 131 of 153
clause crimes of violence. If the “during and in relation to” language supported a
conduct-based approach to the residual clause, it necessarily would do the same for
the drug trafficking and elements-clause definitions. After all, the same words—
“during and in relation to”—must be ascribed the same meaning for each category
of crime listed in § 924(c), whether a drug trafficking crime, an elements- clause
crime of violence, or a residual-clause crime of violence. “To give these same
words”—[“during and in relation to”]—“a different meaning for each category”—
[the elements- and residual-clause definitions of crime of violence and the drug
trafficking crime definition]—“would be to invent a statute rather than interpret
one.” Clark v. Martinez, 543 U.S. 371, 378 (2005). The Supreme Court
emphatically has instructed that we cannot avoid a constitutional problem by
inventing or reinventing a statute. Rodriguez, 138 S. Ct. at 843 (“Spotting a
constitutional issue does not give a court the authority to rewrite a statute as it
pleases.”).
Second, and relatedly, by comparing § 924(c)(3)(B) to ACCA the majority is
in some sense setting up a straw man, because ACCA is not the best analogue to
§ 924(c)(3); § 16 is. As the Dimaya plurality noted, § 16’s text, even “more
plainly” than ACCA’s, requires a categorical approach. Dimaya, 138 S. Ct. at
1218 (plurality opinion); see id. at 1235-36 (Roberts, C.J., dissenting) (reaffirming
Leocal). So to compare and contrast ACCA’s language with § 924(c)’s is a bit
131
Case: 17-10172 Date Filed: 10/04/2018 Page: 132 of 153
disingenuous when a more similar statute exists. The majority does not look to
§ 16(b) when examining this textual factor, perhaps because the majority confines
all discussion of § 16(b) to its incorporation into the INA, where it, like ACCA’s
residual clause, defined a prior conviction. But § 16(b) in its numerous other
applications functioned just as § 924(c)(3)(B) does, yet § 16(b) “require[d]” a
categorical approach. Leocal, 543 U.S. at 7, 11 n.8; see also Martinez, 543 U.S. at
380, 392 (explaining that when construing the same statutory language in one of a
statute’s many applications, “[t]he lowest common denominator, as it were, must
govern,” such that any “construction called for by one of the statute’s applications”
must apply to all applications).
A look at some examples of § 16’s incorporation into the criminal code
proves both points. By examining § 16’s incorporation into the criminal code, we
see how conduct-based elements and categorical elements exist side-by-side
without the former allowing a conduct-based reading of the latter. And we see just
how similar § 16(b)’s incorporations are to § 924(c)(3)(B)’s incorporation into
§ 924(c)’s “operative provision,” and thus why § 16 is a better textual analogue for
§ 924(c)(3)(B) than ACCA is.
Let’s take, for example, 18 U.S.C. § 25, which, as I mentioned in Part I.A.,
criminalizes an adult’s intentional use of a minor to commit a crime of violence.
To convict a defendant under § 25, a jury must find that the defendant intentionally
132
Case: 17-10172 Date Filed: 10/04/2018 Page: 133 of 153
used a minor to commit the crime of violence, an element that necessarily will
require examination of the defendant’s conduct. But the “crime of violence”
element of the statute necessarily is categorical, see Leocal, 543 U.S. at 7; it is
unaffected by the mens rea element. There are plenty of other examples. Take 18
U.S.C. § 119(a), which makes it a crime to knowingly disclose to the public
restricted personal information about certain persons (most often, witnesses or
informants in federal criminal proceedings) when that information will be used to
incite or facilitate a crime of violence against that person or her family member.
Section 119(a) contains several conduct-based elements, including that the
defendant must make restricted information public, have knowledge that the
information is restricted and is being made public, and have the intent either to
personally incite the commission of a crime of violence against a covered person or
her family member or that the personal information be used to facilitate the
commission of a crime of violence. These conduct-based elements appearing in
crimes incorporating § 16’s definition of crime of violence did not, to the Supreme
Court, suggest a conduct-based approach for § 16(b), so they do not suggest a
conduct-based approach for § 924(c)(3)(B), either.
2. The Phrases “Offense that Is a Felony” and “By its Nature” Require a
Categorical Approach to Section 924(c)’s Residual Clause.
133
Case: 17-10172 Date Filed: 10/04/2018 Page: 134 of 153
Next, the majority examines the words “offense,” “felony,” and “by its
nature,” concluding that although in some contexts they may signal a categorical
reading, in this context they do not necessarily. I am unpersuaded.
The majority says that “offense” plausibly can be read to refer to the
defendant’s conduct, pointing to other contexts in which “offense” denotes
conduct. In the case the majority relies primarily upon, Nijhawan, the Supreme
Court recognized “the linguistic fact” that in ordinary speech words such as
“offense” or “felony” can refer to a person’s conduct rather than a statute of
conviction. 557 U.S. at 33-34. No dispute there. But the far more important
lesson from Nijhawan is that context—the words surrounding “offense” or
“felony”—drives those words’ meaning in any particular provision. And here, the
context could not be clearer: “offense that is a felony” applies both to the elements
clause and to the residual clause; in that context, “offense that is a felony” must be
categorical.10 Nijhawan offers direct support for this. In Nijhawan, the Supreme
Court held that one definition of “aggravated felony” in the INA, 8 U.S.C. § 1101,
requires courts to examine the specific facts and circumstances of a crime as it was
committed. 557 U.S. at 36-39. Unlike § 924(c)’s three predicate offense
definitions, the definitions of “aggravated felony”—of which there are many,
10
At the same time, the majority ignores the highest and best guidance we have—the Supreme
Court’s unanimous statement in Leocal that the precise words we are tasked with interpreting in
this case require a categorical approach.
134
Case: 17-10172 Date Filed: 10/04/2018 Page: 135 of 153
including “crime of violence” as defined in § 16—contain some that clearly require
an examination of underlying conduct. Id. at 36-38. Specifically at issue in
Nijhawan was the “aggravated felony” definition found in subsection
(a)(43)(M)(i). That subsection, and the one following it, collectively defined
“aggravated felony” as:
an offense that—
(i) involves fraud or deceit in which the loss to the victim or victims
exceeds §10,000; or
(ii) is described in section 7201 of Title 26 (relating to tax evasion) in
which the revenue loss to the Government exceeds $10,000[.]
8 U.S.C. § 1101(a)(43)(M) (emphasis added). The Supreme Court explained that
the second of these definitions has to refer to the actual circumstances of the
petitioner’s offense because “[t]here is no offense ‘described in section 7201 of
title 26’ that has a specific loss amount as an element.” Nijhawan, 557 U.S. at 38
(quoting 8 U.S.C. § 1101(a)(43)(M)(ii)). Because the “offense . . .in which”
language necessarily refers to the circumstances of the petitioner’s actual conduct
in subsection (a)(43)(M)(ii), the language must be read the same way for
subsection (a)(43)(M)(i). The Court explained that where “Congress uses similar
statutory language and similar statutory structure in two adjoining provisions, it
normally intends similar interpretations.” Id. at 39. In Nijhawan, it was
135
Case: 17-10172 Date Filed: 10/04/2018 Page: 136 of 153
“offense”—in the prefatory phrase—and “in which”—present in both
subsections—that required interpreting both subsections to apply to conduct.
As I explained above, applying this same logic to § 924(c)(3) compels a
categorical reading of the statute. Like subsection (a)(43)(M)’s “offense . . . in
which” language, the prefatory phrase “offense that is a felony” in § 924(c) is
incorporated into the definitions for both the elements clause and the residual
clause. If we start with the uncontroversial proposition that “offense that is a
felony” is categorical in the elements clause and then apply the Supreme Court’s
reasoning in Nijhawan, we must conclude that Congress intended “offense that is a
felony” to be categorical for both crime of violence definitions in § 924(c)(3). See
Nijhawan, 557 U.S. at 39. 11
Aside from its reading of “offense,” the majority appears to acknowledge
that the phrase “by its nature” is best read to require a categorical approach. But,
11
The majority also cites United States v. Hayes, 555 U.S. 415, 426 (2009), for the proposition
that the Supreme Court has employed a conduct-based approach rather than a categorical
approach to a statutory term using the word “offense.” Hayes did not, however, reject a
categorical approach in favor of a factual approach. Instead, Hayes held that the definition of
“misdemeanor crime of domestic violence” in 18 U.S.C. § 921(a)(33)(A) has two distinct
elements, one of which is categorical—an elements clause crime of violence definition—and one
that requires that “a person who has a specified domestic relationship with the victim” have
“committed” the “offense.” Id. There was never a suggestion that the “committed” element
could be interpreted categorically—it is necessarily based on who actually committed the offense
and that person’s relationship with the victim. So § 921(a)(33)(A)’s conduct-based element
operates independently of its categorical element. The same is true for § 924(c)’s conduct-based
elements and categorical (crime of violence or drug trafficking crime) element. See supra Part
II.A.1. (explaining why § 924(c)’s conduct-based elements do not support reading the residual
clause as conduct-based).
136
Case: 17-10172 Date Filed: 10/04/2018 Page: 137 of 153
says the majority, Justice Thomas, in dissent in Dimaya, makes some good points
about the meaning of the word “nature” that make a conduct-based reading
possible. “Nature,” the majority says, might mean “the essential character or
constitution of something,” and that “something” might be “particular acts” rather
than the elements of a crime of conviction. Maj. Op. at 35. The problem with the
majority’s argument is that the text of § 924(c) tells us precisely what that
“something” is: when the statute says “by its nature,” its clearly refers to “offense
that is a felony.” 12 And for the reasons I just explained, “offense that is a felony”
must be read categorically. Isolating the word “nature” and claiming that it is
amenable, out of context, to more than one meaning does little to inform the
meaning of § 924(c)(3)(B) when § 924(c) is read as a whole.
The majority also credits Justice Thomas’s suggestion that “the words ‘by its
nature,’ ‘substantial risk,’ and ‘may’ would mean only that an offender who
engages in risky conduct cannot benefit from the fortuitous fact that physical force
was not actually used during his offense.” Maj. Op. at 36 (quoting Dimaya, 138 S.
Ct. at 1254). Taken separately, I agree that these words and phrases could mean
that. But together? No way.
12
In holding that ACCA’s residual clause must be read with a categorical approach and defined
by the “ordinary case” of an offense, the Supreme Court described an offense that would fall
within the residual clause as one “that, by its nature, presents a serious risk of injury to
another”—categorical language—even though ACCA does not contain that phrase. James, 550
U.S. at 209.
137
Case: 17-10172 Date Filed: 10/04/2018 Page: 138 of 153
Again, the residual clause defines “crime of violence” as “an offense that is
a felony and . . . that by its nature, involves a substantial risk that physical force . . .
may be used” during commission of the offense. 18 U.S.C. § 924(c)(3)(B). The
“substantial risk” requirement on its own means that an offender who engages in
risky conduct cannot benefit from the fact that force was not actually used, so the
addition of “may” would serve no purpose other than to abstract the defendant’s
actual conduct one step further. Of course, we cannot read words out of a statute
in the name of constitutional avoidance. See Gustafson v. Alloyd Co., 513 U.S.
561, 574 (1995) (emphasizing that courts must “avoid a reading [of a statute]
which renders some words altogether redundant”).
3. Section 924(c)(3)(B)’s “In the Course of Committing the Offense”
Language Does Not Support a Conduct-Based Approach.
Third, in its reach to find another meaning in the statute, the majority
considers as a factor the presence or absence of “any reference to the underlying
crime’s commission or circumstances,” a factor that it says it distills from Dimaya.
Maj. Op. at 27. The majority argues that § 924(c)’s residual clause “is different”
from § 16(b) because § 924(c)(3)(B) says “in the course of committing the
offense,” which it deems to be “conduct-based language.” Id. at 37. This is flat
wrong—both statutes contain “in the course of committing the offense.”
Therefore, the statutes are not different at all. And if this temporal language
138
Case: 17-10172 Date Filed: 10/04/2018 Page: 139 of 153
somehow suggested a conduct-based approach, it likewise would do so for the
identically worded § 16(b), and we know from Leocal that that is not the case.
We also know from the Supreme Court’s decisions applying the categorical
approach to ACCA that the fact that the risk must arise in the course of committing
the offense does not admit of a conduct-based approach. In James, the Supreme
Court explained that the “risk” that triggered ACCA’s residual clause must arise
“while the crime is in progress”—that is, in the course of committing the offense.
James, 550 U.S. at 203. Although ACCA’s residual clause “lacked an express
temporal limit,” the limit was built into the case law such that “the analyses under
ACCA’s residual clause and § 16(b) coincide[d].” Dimaya, 138 S. Ct. at 1219-20
(majority opinion). Because we know ACCA’s residual clause and § 16(b) require
a categorical approach, we also know that the statutes’ temporal limitations,
explicit or implicit, do not plausibly suggest a conduct-based approach; otherwise,
the majorities in Johnson and Dimaya would have had to accede to the dissenters’
suggestions that they employ the canon of constitutional avoidance. To the
contrary, the Supreme Court has explained that the categorical approach
necessitates a temporal limitation because “the riskiness of a crime in the ordinary
case depends on the acts taken during [the crime’s] commission.” Id. at 1220.
Section 924(c)(3)(B)’s “in the course of committing the offense,” then, is
categorical language, not conduct-based language.
139
Case: 17-10172 Date Filed: 10/04/2018 Page: 140 of 153
* * *
The majority’s strained reading of § 924(c)’s residual clause does not, in my
view, even approach plausible. Under Rodriguez, we must end the analysis there.
The statute cannot be construed to avoid a plain violation of due process. And yet,
“[u]nable to find sure footing in the statutory text, the [g]overnment and [the
majority] pivot away from the plain language and raise a number of practical
concerns. These practical considerations are meritless and do not justify departing
from the statute’s clear text.” Pereira, 138 S. Ct. at 2118.
B. The Majority’s Extra-textual Factors Do Not Support Application of a
Conduct-Based Approach.
Even if we could set aside the text of the statute (which of course we may
not do), the majority’s three “practical considerations” lacking a textual hook
support no different reading of § 924(c)’s residual clause. To review, these three
practical considerations are because: in Johnson and Dimaya the government
“never asked the Court to consider a conduct-based approach” (factor 1); “applying
the categorical approach would avoid the impracticability of requiring sentencing
courts to engage in after-the-fact reconstructions of the circumstances underlying
prior convictions” (factor 5); and “applying the categorical approach would avoid
the Sixth Amendment issues that could arise from sentencing courts making
findings of fact that properly belong to juries” (factor 6). Maj. Op. at 27-28.
140
Case: 17-10172 Date Filed: 10/04/2018 Page: 141 of 153
Before I get into the majority’s factors, I pause to note that although the
majority claims to have distilled its factors from Taylor and its progeny, absent
from the majority’s consideration is one of Taylor’s three reasons for applying the
categorical approach to ACCA: that “the legislative history of the enhancement
statute shows that Congress generally took a categorical approach to predicate
offenses.” 495 U.S. at 601. Because § 924(c)(3)(B) is amenable to only one
plausible reading, I would no more wade into legislative history than I would
explore the majority’s extra-textual factors. But if we were to peek at the
legislative history of § 924(c), it—like ACCA’s legislative history—supports a
categorical approach only. As part of the CCCA, Congress “completely revised”
§ 924(c). S. Rep. 98-225, at 313 (1983). Before the revision, the Supreme Court
had interpreted § 924(c) to exclude certain potential predicate criminal “statutes,”
like the federal bank robbery statute and the assault-on-a-federal-officer statute,
which contained penalty enhancements of their own. Id. Congress then amended
§ 924(c) to include these statutes. In so doing, the Senate expressly acknowledged
the Supreme Court case law as the motivating factor for its revision. Even more
importantly, as it acknowledged that case law the Senate itself referred to crimes in
terms of categories: statutes, not conduct.
The Senate stated that the purpose of its revision was to “ensure that all
persons who commit federal crimes of violence, including those crimes set forth in
141
Case: 17-10172 Date Filed: 10/04/2018 Page: 142 of 153
statutes which already provide for enhanced sentences for their commission with a
dangerous weapon, receive a mandatory sentence.” Id. (emphasis added). The
Senate sought to do so in response to the Supreme Court’s body of cases that had
“negated [§ 924(c)]’s use in cases involving statutes, such as the bank robbery
statute and assault on a federal officer statute.” Id. at 312 (emphasis added).
Congress explained that “[t]hese are precisely the type of extremely dangerous
offenses for which a mandatory punishment for the use of a firearm is most
appropriate,” so it overrode the court decisions to ensure that certain statutes fell
within the purview of § 924(c). Id. (emphasis added); see also United States v.
Robinson, 844 F.3d 137, 148 (3d Cir. 2016) (Fuentes, J., concurring in judgment)
(“The Senate report discussion of Section 924(c) included comments on which
precise offenses are ‘crime[s] of violence’ under the statute, but never which facts
would qualify a conviction as a ‘crime of violence’ and which facts would
disqualify the same conviction.”).
Relatedly, our court and nearly every other federal court in the nation has
consistently applied the categorical approach to § 924(c)(3), and Congress has not
once sought to intervene—despite the fact that, as evidenced by the above
legislative history, Congress previously has substantially revised the statute in
response to the federal courts’ construction of it. “The claim to adhere to case law
is generally powerful once a decision has settled statutory meaning” because
142
Case: 17-10172 Date Filed: 10/04/2018 Page: 143 of 153
“unlike in the context of constitutional interpretation, the legislative power is
implicated, and Congress remains free to alter what [a] [c]ourt has done.”
Patterson v. McLean Credit Union, 491 U.S. 164, 172-73 (1989), quoted with
approval in Shepard v. United States, 544 U.S. 13, 23 (2005). “If Congress had
wanted judges to look into a felon’s actual conduct, it presumably would have said
so.” Dimaya, 138 S. Ct. at 1218 (plurality opinion) (internal quotation marks
omitted); see also id. at 1233 (Gorsuch, J., concurring) (noting that Congress
“remains free . . . to write a new residual clause that affords the fair notice lacking
here.”).
The canon of constitutional avoidance “rest[s] on the reasonable
presumption that Congress did not intend the alternative which raises serious
constitutional doubts. The canon is thus a means of giving effect to congressional
intent, not of subverting it.” Martinez, 543 U.S. at 380 (internal citations omitted).
Here, we know Congress’s intent.
I now turn to the majority’s extra-textual factors.
1. Whether the Government Has Asked Us to Abandon the Categorical
Approach Has No Relevance to the Constitutional Avoidance Analysis.
The first factor the majority considers is that here, unlike in Johnson and
Dimaya, the government has argued for a conduct-based approach: “[T]he
government has expressly (and at length) urged us to abandon the categorical
approach to § 924(c)(3)(B) in favor of a conduct-based interpretation.” Maj. Op. at
143
Case: 17-10172 Date Filed: 10/04/2018 Page: 144 of 153
29. First, this description strikes me as incomplete at best. For years, and even
after Johnson, the government consistently has urged that we apply a categorical
approach to § 924(c). It was only after our court invited the government to argue
for abandonment of the categorical approach in supplemental panel briefing and en
banc briefing in this case that the government changed course. And even then, in
its en banc brief the government’s primary argument was not that we should
overrule McGuire, but rather that we should affirm Ms. Ovalles’s § 924(c)
conviction on the ground that her predicate offense satisfies the elements clause.
See En Banc Br. of the Appellee USA at ii. The government argued only in the
alternative that we should overrule McGuire insofar as it held that a categorical
approach must be applied to § 924(c)’s residual clause.
Second, and more importantly, as the majority itself observes, this factor is
not really “interpretive,” id. at 29; and so it is “an odd place to start in interpreting
a statute.” Id. Under Rodriguez it is clear that the government’s suggestion (or
lack of it) that we should apply a conduct-based approach to a statute is irrelevant
to whether the text of the statute plausibly can be read to permit such an approach.
2. The Majority’s Practical Problems and Sixth Amendment Factors in
Reality Constitute One Irrelevant Factor that Fails to Support the
Majority’s Position.
The majority’s fifth factor—the supposed lack of practical problems
associated with a conduct-based approach—is yet another variety of extra-textual
144
Case: 17-10172 Date Filed: 10/04/2018 Page: 145 of 153
consideration that the Supreme Court in Rodriguez told us we cannot consider. See
Rodriguez, 138 S. Ct. at 843. In any event, the majority’s fifth and sixth
considerations (the need to avoid Sixth Amendment issues that could arise from
sentencing courts making findings that juries are required to make) are not separate
issues; instead they are two sides of the same coin. Here’s why.
It certainly was possible to apply a conduct-based approach to ACCA’s
residual clause and § 16(b) and still comply with the Sixth Amendment. See
W. Pryor Concurrence at 8-9. Take ACCA’s residual clause, for example. Say a
defendant convicted of burglary three times in 2013 was charged in 2014 with
being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). He
elected to have his case tried to a jury. The government could secure an ACCA
enhancement based on these burglary convictions so long as it proved to the jury
beyond a reasonable doubt that the defendant’s commission of the burglaries
involved a serious potential risk of injury. (Maybe in each case the defendant was
still inside a home when the homeowners returned, and the homeowner in each
case could testify to that before the jury.) Securing the defendant’s ACCA-
enhanced sentence should be relatively straightforward (if somewhat time-
consuming) because the prior convictions were close in time to the § 922(g)
charge. Now assume those burglary convictions were 10 years old. Maybe the
government could scrape together enough evidence to prove the risk element of
145
Case: 17-10172 Date Filed: 10/04/2018 Page: 146 of 153
those long-ago crimes beyond a reasonable doubt, maybe not. But this is not a
Sixth Amendment problem. It is a practical problem for the prosecution that arises
because of the Sixth Amendment jury trial right. Applying a conduct-based
approach to ACCA would not have violated the Sixth Amendment; it merely
would have led to fewer ACCA-enhanced sentences because the government’s
burden to prove old facts to a jury could turn out to be difficult to satisfy in
practice. 13
The same is true for § 16(b) as incorporated by the INA—a conduct-based
approach would merely lead to fewer removals. If a factfinder was tasked with
determining whether a noncitizen had committed a crime with conduct that
involved a substantial risk that physical force may be used, the factfinder’s ability
to make this finding could well depend on how long ago the crime was committed.
The majority’s fifth and sixth factors, then, amount to one concern: that
given the Sixth Amendment’s dictates there may be serious practical hurdles to
proving prior convictions.
Turning to that concern, the majority distinguishes ACCA and § 16, on the
one hand, from § 924(c), on the other, because by requiring the examination of
13
The majority describes its concerns in terms of avoiding sentencing-judge-found facts, but of
course the same concern exists in the § 924(c) context: even under a conduct-based approach,
the Sixth Amendment would not permit sentencing judges to find the facts necessary to secure a
conviction. Thus, the real concern is whether it is practical to have a jury find the facts necessary
to determine whether the defendant has committed a crime of violence.
146
Case: 17-10172 Date Filed: 10/04/2018 Page: 147 of 153
prior convictions the two former statutes pose these practical hurdles, while the
latter does not. Yes, it may be difficult to reconstruct the facts underlying the
predicate convictions because of the passage of time and possible loss of witnesses
and records; conversely, because § 924(c) is always applied to a contemporaneous
offense, there is no such practical difficulty. This is true for ACCA and § 16 as
incorporated into the INA. But what of § 16 in its numerous other applications?
Many other, primarily criminal, statutes incorporate the “crime of violence”
definition in § 16 as an element that must satisfied at the same time as the statute’s
other elements. In those applications, no reconstruction of old facts is necessary
because, as with § 924(c)—and I use the majority’s words here—“it’s all one big
ball of wax.” Maj. Op. at 40. As I emphasized above, “§ 16 is a criminal statute,
and it has both criminal and noncriminal applications,” so we cannot solely look to
its applications in the INA when examining whether it is similar to or different
from § 924(c). Leocal, 543 U.S. at 11 n.8. Despite the lack of practical problems
with § 16(b)’s contemporaneous criminal applications, the Supreme Court did not
invoke the canon of constitutional avoidance to save § 16(b). I see no reason why
the same rationale would justify application of the canon here.
And, contrary to the majority’s suggestion, practical problems do abound
with a conduct-based approach to § 924(c)(3)(B), even if those problems are not
completely coextensive with problems that might arise by using a conduct-based
147
Case: 17-10172 Date Filed: 10/04/2018 Page: 148 of 153
approach to ACCA’s residual clause and § 16(b) as incorporated into the INA. As
amici curiae the National Association of Criminal Defense Lawyers and Families
Against Mandatory Minimums explain: “Under a fact-based approach, whether
the charged predicate offense satisfies § 924(c)(3) would turn not on whether the
defendant committed the predicate offense, but how he committed it.” Br. of
Amici at 11. In some § 924(c)(3)(B) cases (like my ACCA residual clause
example above), proof of what made the defendant’s conduct risky (that is, how he
committed the predicate offense) will not be essential to satisfy the elements of the
predicate offense. In those cases, will prosecutors know whether the offense
ultimately will satisfy the residual clause, so as to facilitate informed charging
decisions? Will defendants and defense counsel know whether the charged
predicate will satisfy the residual clause, so as to enable informed plea bargaining
decisions? I doubt it.
What’s more, given the abstract nature of the residual clause inquiry I am
not nearly as confident as the majority is that instructions can be fashioned to guide
juries appropriately on—or that juries are well equipped to decide—what kind of
conduct satisfies § 924(c)’s residual clause. Under a conduct-based approach,
which the majority concedes must be based on facts found by a jury looking at the
defendant’s conduct, the jury’s inquiry is divorced, in at least four ways, from the
conduct it is tasked with examining. First, the jury must ignore any conduct that
148
Case: 17-10172 Date Filed: 10/04/2018 Page: 149 of 153
forms the basis for other charged offenses and focus only on the conduct involved
in committing the § 924(c) predicate offense. This could prove difficult if, to use
as an example Ms. Ovalles’s case—in which she and her codefendants robbed a
store, carjacked three vehicles, and attempted to carjack a fourth—the predicate
offense (the attempted carjacking) occurred alongside other criminal conduct.
Then, the text of § 924(c)(3)(B) provides two additional abstractions: “substantial
risk” that physical force “may” be used. The majority says no problem—juries
routinely decide what kind of conduct satisfies a substantial risk standard or what
constitutes physical force. But “substantial risk” is only one abstraction. How
does a jury decide whether conduct presents a substantial risk that physical force
“may” be used? That is, how does a jury decide what conduct satisfies an
abstraction (“may”) of already abstract conduct (“substantial risk”)? The majority
has no answer for this. 14 Fourth, and further abstracting a jury’s inquiry is that a
defendant’s use, carrying, or possession of a gun is insufficient, without more, to
satisfy the risk standard in § 924(c)’s residual clause—or else the crime of violence
element would be meaningless. A jury therefore must decide whether a
defendant’s predicate offense conduct only, separate and independent from the
14
It is no answer to say that the word “may” in the statute does not create an inquiry distinct
from the jury’s inquiry about “substantial risk” because “[i]t is our duty to give effect, if
possible, to every clause and word of a statute.” Duncan v. Walker, 533 U.S. 167, 174 (2001)
(internal quotation marks omitted). In crafting jury instructions, a district court, remaining
mindful of this rule, would have to explain how a “substantial risk” that physical force “may” be
used is distinct from a “substantial risk” that physical force will be used.
149
Case: 17-10172 Date Filed: 10/04/2018 Page: 150 of 153
defendant’s possession of a gun, presented a substantial risk that physical force
may be used, that doubly abstract standard. We presume that juries follow
instructions, true, but we cannot presume that a jury will be able to make sense of
an inquiry this abstracted from the facts of the case. Nor can we presume, given
these realities, that a district court will be able to provide sufficiently concrete
instructions to guide the jury. 15
Finally, the majority’s ultimate disposition of Ms. Ovalles’s appeal proves
my point about practical difficulties by highlighting another problem with a
conduct-based approach: appeals. The majority, sitting as an appellate court,
affirms Ms. Ovalles’s § 924(c)(3)(B) conviction even though Ms. Ovalles did not
admit, and no fact-finder found, that her conduct created a substantial risk that
physical force may have been used in the course of committing the predicate
offense of attempted carjacking. The majority decides as a matter of law that the
risk element has been satisfied by examining the elements of the predicate offense
to which she pled guilty. See Maj. Op. at 45-47 (explaining that Ms. Ovalles’s plea
to the elements of attempted carjacking satisfy the elements clause and that “the
15
That is not all. Deeming the § 924(c)(3) inquiry a fact question for the jury rather than a
question of law for the court easily could lead to inconsistent verdicts across cases. Identical
conduct that one jury considers to be conduct presenting a substantial risk that physical force
may be used might not, to another jury, present such a risk. The categorical approach prevents
such disparities. See Moncrieffe, 569 U.S. at 201 (emphasizing that the government’s proposed
case-specific fact-finding approach would lead to unfair results wherein two noncitizens, “each
‘convicted of’ the same offense, might obtain different aggravated felony determinations”
depending on the evidence before the immigration judge about each noncitizen’s conduct).
150
Case: 17-10172 Date Filed: 10/04/2018 Page: 151 of 153
real-life details of [her] crime” only “confirm it”). If § 924(c)(3)(B) is to have a
new conduct-based “substantial risk” element, it often will not be the case that we
can look to the defendant’s admissions to the elements of the predicate offense to
determine that this conduct element is satisfied. This case is a prime example.
To “confirm” its conclusion that the elements of the attempted carjacking
offense to which Ms. Ovalles pled guilty satisfied the conduct-based residual
clause element, the majority considers the totality of Ms. Ovalles’s and her co-
conspirators’ conduct. But under the majority’s own holding, whether the
defendant engaged in conduct that satisfies the “substantial risk” standard is an
element of the § 924(c) offense that must be decided by a jury or admitted by the
defendant. Again, Ms. Ovalles never admitted that her attempted carjacking
involved a substantial risk that the use of force might be used. Perhaps, without
saying so, the majority is performing a harmless error analysis—an analysis the
government never asked us to perform and on which the government bears the
burden.
Will we uphold other convictions on appeal under this same flawed logic?
Many defendants like Ms. Ovalles were convicted when McGuire required use of
the categorical approach. Under McGuire, the district court was tasked with
deciding as a matter of law whether the defendant’s charged predicate offense
satisfied the residual clause. 706 F.3d at 1336. So even if a defendant was tried by
151
Case: 17-10172 Date Filed: 10/04/2018 Page: 152 of 153
a jury on his predicate offense charge and his § 924(c) charge, the government was
not required to prove beyond a reasonable doubt, and the jury was not required to
decide, whether his underlying conduct in fact met the risk standard. The same
would hold true for a defendant who pled guilty. Under the majority’s conduct-
based approach, on appeal these defendants should be entitled under the Sixth
Amendment to a remand or—at a minimum—the government would have to prove
that the error was harmless beyond a reasonable doubt. See Neder v. United States,
527 U.S. 1, 9-11 (1999). But under the majority’s decision today, perhaps
defendants will not be afforded these rights. Time will tell.
III.
The majority claims to be avoiding one constitutional problem—the
unconstitutional vagueness of § 924(c)(3)(B)—with a practical solution—
abandoning the categorical approach as applied to that statute. The law does not
permit the majority’s approach, and the text of § 924(c) does not permit the
majority’s resolution. Even under the majority’s flawed framework, neither the
government’s position, the dictates of the Sixth Amendment, nor practical
considerations support application of a conduct-based approach over a categorical
one. And there is every indication that the majority’s practical solution will breed
a host of new practical problems.
152
Case: 17-10172 Date Filed: 10/04/2018 Page: 153 of 153
Our displeasure with the categorical approach and the results of its
application to residual clauses does not permit us to jettison it. The categorical
approach is dictated by the text of the statute and Congress’s intent to impose
increased penalties based on the violation of certain predicate statutes. If Congress
wants to change course, or enact a residual clause that comports with the dictates
of due process, it can readily do so. See McCarthan v. Director of Goodwill
Indust.-Suncoast, Inc., 851 F.3d 1076, 1100 (Carnes, C.J., concurring) (“‘It is for
Congress, not this Court, to amend the statute if it believes’” the statute is too
restrictive (quoting Dodd v. United States, 545 U.S. 353, 359-60 (2005))); see also
Pryor Concurrence at 8-9.
In my view, the majority’s erroneous decision perpetuates unconstitutional
sentences for inmates sentenced under § 924(c)’s residual clause in this circuit. If I
am correct that Leocal and Dimaya require a categorical approach to interpreting
§ 924(c)(3)(B), these inmates—who should be entitled to relief—are serving
between five years and life in prison beyond what our Constitution allows. And
we will have perpetuated that injustice by failing to apply faithfully the Supreme
Court’s directives.
I would not throw out the plain text of § 924(c)(3)(B) to save it from
unconstitutionality. I would leave it to Congress save it. Respectfully, I dissent.
153