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Violence, Vagueness, and Avoidance

On Friday, the U.S. Supreme Court waded once again into the murky waters of a vague definition of "crime of violence." The high court decided to review the case of United States v. Davis, No. 18-431.  The case involves 18 U.S.C. ยง 924(c), which imposes mandatory minimum sentences on persons who commit a "crime of violence or a drug trafficking crime" while using or carrying a firearm.  Paragraph (3) of that subdivision provides:

(3) 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.

The Supreme Court has long held that similar language in statutes relating to prior offenses refer to categories of offenses and not the defendant's actual conduct in committing the crime. This is called the "categorical approach." The Court was motivated in part by the practical difficulties of determining the particular facts of long-ago crimes. More recently, the Court has declared language such as subparagraph (B) "void for vagueness" in two prior offense statutes. See Johnson v. United States, 135 S. Ct. 2551 (2015); Sessions v. Dimaya, 138 S. Ct. 1204 (2018).

As the Eleventh Circuit noted October 4 in Ovalles v. United States, No. 17-10172, if the categorical approach applies, then under Johnson and Dimaya "the clause is doomed."

But should the "categorical" interpretation of the statute be reconsidered in light of the principle that if two interpretations are plausible but only one is constitutional, courts should adopt the constitutional one? If so, is a "case-specific" interpretation of this statute plausible?
The practical problem of finding the facts of long-ago crimes is not present here. The crime that the Government claims is a "crime of violence" is the present offense. Is that enough to distinguish this statute from others of similar wording?

Defendants Davis and Glover perpetrated a series of gunpoint robberies of convenience stores in the Dallas area. They were convicted of both robbery and conspiracy to commit robbery. The robbery convictions fall squarely under subparagraph (3)(A). The use of force (actual, attempted, or threatened) is an element of robbery. Not so with conspiracy to rob, so the mandatory minimum on the conspiracy count must come in, if at all, under subparagraph (3)(B).

The Supreme Court last May sent the case back to the Fifth Circuit to reconsider in light of Dimaya. That court did not think much of the Government's argument that it should switch from the categorical interpretation of the statute to a case-specific interpretation to avoid the constitutional problem, and it vacated the judgment on the conspiracy count.

While the certiorari petition was pending, the Eleventh Circuit en banc accepted the same argument in the Ovalles case noted above, overruling its prior interpretation. Judge William Pryor, concurring, noted how the categorical approach can lead to absurdities:

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.
Judge Jill Pryor (no relation) wrote the dissent. Her position is that a case-specific interpretation of (3)(B) is not a plausible one. The words "by its nature" in the statute do indeed present a hurdle for those arguing for the case-specific approach. That phrase is most naturally read as referring to a defined crime rather than a specific criminal act.

On October 12, a panel of the First Circuit largely agreed with the Ovalles majority and with the Second Circuit opinion earlier this year in United States v. Barrett, 903 F.3d 166. See United States v. Douglas, No. 18-1129.

The defendants' Brief in Opposition argued, "The circuit split is not entrenched and the arguments are not fully developed." They also claimed, "further percolation may resolve the issue without this Court's intervention." Really? It's not surprising they didn't get far with that. We're off to the races, i.e., the merits.

How far do we stretch the interpretation of a statute to avoid a constitutional problem? It is a continuing saga, and the Court will write one more episode this year.

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