United States: Second Circuit Asks How To Address 924(C) Appeals In The Wake Of Davis

Last Updated: August 9 2019
Article by Jovalin Dedaj

The Supreme Court's landmark ruling in United States v. Davis, 588 U.S. ___ (2019), has opened the floodgates to hundreds of petitions seeking to overturn convictions under the residual clause of Section 924(c).  Now, circuit courts of appeals across the nation are feeling the immediate impact of the decision as federal offenders appeal their firearms convictions and seek to reduce their sentences.  The Second Circuit, which was partly responsible for the circuit split resolved by Davis, has asked the parties in United States v. Barrett, No. 14-2641 (2d Cir. 2018), to propose to the court a mechanism to govern how these petitions should be addressed going forward.

In Davis, the Supreme Court held that the definition of "crime of violence" found at 18 U.S.C. § 924(c)(3)(B), also known as the residual clause, was unconstitutionally vague.  The decision to grant review in Davis was due in large part to a deepening circuit split on the question of the residual clause's vagueness – a question borne out of the Supreme Court's decision in Sessions v. Dimaya, 584 U.S. ___ (2018).  In Dimaya, the Supreme Court determined that Section 16(b)'s definition of crime of violence in the federal criminal code was unconstitutionally vague.  Section 16(b)'s definition, however, was identical to the definition under Section 924(c).  As a result, several circuit courts of appeals relied on the holding in Dimaya to conclude that Section 924(c) was void for vagueness as well.  See, e.g., United States v. Eshetu, 898 F.3d 36 (D.C. Cir. 2018); United States v. Salas, 889 F.3d 681 (10th Cir. 2018).  The Second Circuit, however, was on the other side of this divide, upholding the residual clause in Barrett.

But with the Davis now the "law of the land", the Second Circuit has now asked the parties to brief two questions:  (1) how Davis affects the part of Barrett recognizing Hobbs Act robbery conspiracy as a categorical crime of violence; and, (2) whether Davis absolves a defendant from the need to show that Section 924(c)'s residual clause is unconstitutionally vague as applied to his case.

The first question concerns the underlying crime to which the firearms offense attaches.  As Justice Neil Gorsuch explained in Davis, the decision to strike down the residual clause will have limited application because certain offenses are still categorically "crimes of violence" just based on their elements.  For those offenses, a firearms conviction under Section 924(c) is still valid under the elements clause.  Here, the Second Circuit is asking whether a conspiracy to commit a crime of violence is itself a crime of violence.  In light of Davis, the answer to the question is almost certainly "No".  When the Second Circuit originally decided Barrett, it held "[I]f a substantive offense is categorically a crime of violence under Section 924(c)(3)(A) ... a conspiracy to commit that crime, by its "very nature" presents a substantial risk of physical force, so as also to be a violent crime under § 924(c)(3)(B)."  But Davis precludes this line of reasoning because the holding in Barrett depends on the residual clause (i.e., the "substantial risk of physical force" language), which Davis explicitly invalidated.  Moreover, the government already conceded in its briefs in Davis that a conspiracy to commit Hobbs Act robbery – the underlying crime in both Barrett and Davis – was not a crime of violence.  It would seem that the weight of the case law indicates a conspiracy – even a conspiracy to commit a crime of violence – cannot be the predicate offense for a firearms conviction under Section 924(c).

The second question focuses on what a defendant will have to show in their appeal for relief under the ruling Davis.  This question is likely the more contentious of the two, especially when considering how the Second Circuit framed the question in its order: "whether Davis absolves a defendant from the need to show that Section 924(c)'s residual clause is unconstitutionally vague as applied to his case, specifically, whether Barrett can claim that he could not reasonably know his robbery conspiracy was a crime of violence when he continued to participate in robberies even after a victim was shot dead...."  It seems that the answer to this question is not as open to interpretation as the Second Circuit suggests.  Under the traditional categorical approach, when determining whether a crime qualifies as a violent felony, a court must look at how the law defines the offense – the generic approach – and not how an individual offender might have committed the offense on a particular occasion – the conduct-specific approach.  The case law on this point is quite clear: if a statute is vague, it is vague in all its applications and no legal imagination is permitted to determine whether the crime as committed is a crime of violence.  See Descamps v. United States, 570 U.S. 254, 133 S. Ct. 2276 (2013).

The supplemental briefing on these questions is due by the end of the month.  How the Second Circuit resolves these questions will reveal how successful these 924(c) appeals will be.  If the Second Circuit determines that federal offenders must show that the residual clause as applied to their cases was unconstitutionally vague, it could significantly restrict the reach of the holding in Davis.

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