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Argument preview: Who’s afraid of the categorical approach?

Next Wednesday, the Supreme Court will hear argument in United States v. Davis. Davis is the latest in a string of cases stemming from Johnson v. United States, the 2015 decision invalidating the Armed Career Criminal Act’s residual clause (Section 924(e)(2)) as unconstitutionally void for vagueness. ACCA imposes additional punishment on certain individuals convicted of being a felon in possession of a firearm. That crime typically carries a maximum of 10 years’ imprisonment. ACCA imposes a 15-year mandatory minimum term of imprisonment on persons with multiple prior convictions for “violent felonies.” And the now-defunct residual clause defined a violent felony as an offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”

Two years after Johnson, Beckles v. United States upheld a provision in the advisory U.S. Sentencing Guidelines that was identical to ACCA’s residual clause. And last term, Sessions v. Dimaya invalidated a provision worded similarly to ACCA’s residual clause — Section 16(b), the federal criminal code’s general definition of “crime of violence.” Section 16(b) defined a crime of violence as “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.”

That brings us to Davis. Davis involves a provision, Section 924(c)(3)(B), that is identical to Section 16(b). Section 924(c) creates a graduating set of penalties for using a firearm “during and in relation to any crime of violence.” (The penalties are “graduating” in that a first conviction under 924(c) carries a mandatory minimum of 5-10 years, and a second or subsequent conviction carries a mandatory minimum of 25 years. Those penalties can run consecutively and can also be imposed simultaneously for multiple 924(c) offenses that are committed in the same course of conduct, a practice referred to as “stacking.” The recently enacted First Step Act ensures that first-time offenders are no longer subject to “stacked” 924(c) charges that trigger the 25-year mandatory minimum.)

Section 924(c)(3) defines a crime of violence as 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.” That is the exact same language the Supreme Court declared void for vagueness in Dimaya. So what is left for the court to decide in Davis?

Dimaya foreshadowed one question — whether the Supreme Court should abandon its current approach to interpreting Section 924(c). Gather around, children — you’re about to learn the infamous “categorical approach”! Courts use something called the categorical approach to interpret Section 924(c) (and Sections 16(b) and 924(e) as well). Under that approach, courts look to the elements of a crime, i.e., what the government must prove to a jury in order to obtain a conviction. Courts then “identify a crime’s ‘ordinary case’” and assess whether the crime, in that “ordinary case,” poses a substantial risk of force. In Dimaya, the court held that Section 16(b), when interpreted using the categorical approach, was unclear and unconstitutionally void for vagueness.

But not all the justices thought that Section 16(b) had to be interpreted that way. Although Justice Neil Gorsuch agreed with Justice Elena Kagan’s majority opinion that Section 16(b) was unconstitutional, he wrote a separate opinion observing that “no party” had argued that Section 16(b) did not require a categorical approach. If they had made that argument, the implication is, perhaps he would not have invalidated Section 16(b). And even without the government’s urging, Justices Clarence Thomas and Samuel Alito would have abandoned the categorical approach. In dissent, they (and Justice Anthony Kennedy) opted to reject the categorical approach and focus only on whether the real-world conduct of the offense posed a substantial risk of force. Using that approach, they argued, Section 16(b) was constitutional.

But why would the two statutes, Section 16(b) and Section 924(c), be interpreted differently if they are worded the same way? In arguing that Section 924(c) is not void for vagueness even though Section 16(b) was, the government makes a few points. None of them completely distinguish the two provisions. For example, the government invokes the canon of constitutional avoidance, which says that courts should interpret statutes in ways that avoid the statute being unconstitutional. That argument also applied to Section 16(b) in Dimaya. The government also maintains that the best interpretation of Section 924(c) is that it calls for a circumstance-specific determination about whether a defendant’s actual offense conduct satisfies the substantial-risk test because Section 924(c) “applies only to the conduct for which the defendant is currently being prosecuted.” That claim would ostensibly apply to Section 16(b) as well, or at least some applications of it. Because Section 16(b) is the general definition of crime of violence, it is incorporated into many different criminal statutes, some of which use the term to refer to the conduct for which the defendant is currently being prosecuted.

But distinguishing Sections 16(b) and 924(c) may not be necessary if the court thinks that upholding Section 924(c) is more important than sensibly distinguishing 924(c) from 16(b). Or perhaps the court might think that the canon of constitutional avoidance just does not apply if, as in Dimaya, the government does not argue that the statute should be interpreted in a different, and constitutionally permissible, way. Gorsuch raised that possibility in his concurrence in Dimaya.

There is also the more important question of how courts would interpret Section 924(c) if they didn’t use the categorical approach. In Dimaya, Thomas and Alito said they wanted to adopt a circumstance-specific approach that assessed the defendant’s actual offense conduct (i.e., the specific facts about what the defendant did). Perhaps unsurprisingly, the government urges the court to adopt that approach to interpreting Section 924(c). The respondent, Maurice Davis, counters that the government’s interpretation of Section 924(c) would be both unpredictable and sweeping, and would leave matters to the whim of juries, generating conflicting results. Davis also argues that the government’s proposed interpretation of Section 924(c) is inconsistent with the statute’s text, which directs courts to determine whether “an offense” “by its nature” involves a substantial risk, not whether the facts underlying the offense involve a substantial risk.

But the government’s (and Thomas and Alito’s) approach to Section 924(c) is not the only option on the table. In fact, it’s not even the only alternative to the categorical approach that came up in Dimaya. In his Dimaya concurrence, Gorsuch wrote that he was “not sure Justice Thomas’s is the only available alternative reading of the statute we would have to consider … We might also have to consider an interpretation that would have courts ask not whether the alien’s crime of conviction ordinarily involves a risk of physical force … but whether the defendant’s crime of conviction always does so.” Although Davis does not address this possible interpretation of Section 924(c), the amicus brief by Families Against Mandatory Minimums does; it even explains why Davis might prevail under that interpretation.

The government also represents that invalidating Section 924(c) would have drastic consequences. Invalidating Section 924(c), the government warns, would mean that “some of the most violent criminals on the federal docket” will escape punishment or be “immediately released from prison.” Not so, says Davis. Defendants may still be subject to 924(c) because their conduct qualifies as a crime of violence under 924(c)’s other definition of crime of violence — a crime that has an element of force. Section 924(c) also applies to persons involved in certain drug-related crimes, and persons subject to 924(c) are subject to punishment for the predicate offense (i.e., the underlying “crime of violence”) anyway. And two terms ago, in Dean v. United States, the Supreme Court explained that when courts invalidate convictions under 924(c), “the government routinely argues that an appellate court should vacate the entire sentence so that the district court may increase the sentences for any remaining counts … And appellate courts routinely agree.”

The Supreme Court may hesitate before invalidating Section 924(c) in light of the government’s warnings. The court also probably does not want to issue a divided opinion upholding Section 924(c) that does not offer a clear alternative to the categorical approach. That result would be a disaster in the courts of appeals. So the court may spend some time at argument trying to figure out if there is an alternative approach to interpreting Section 924(c) that could command five votes.

That could pose a challenge for some of the professed textualists on the court. And who knows what kind of alternative interpretation of Section 924(c) Justice Stephen Breyer might have up his sleeve? I for one can’t wait to find out.

Recommended Citation: Leah Litman, Argument preview: Who’s afraid of the categorical approach?, SCOTUSblog (Apr. 10, 2019, 11:50 AM),