United States v. Davis

FORM OF ANALYSIS FOR 18 U.S.C. § 924(c)

Petitioner the United States argues that, to prosecute a defendant under 18 U.S.C. § 924(c), a jury must make a fact-specific finding on whether a defendant’s specific conduct meets (1) the statutory definition of a “drug trafficking crime,” (2) a “crime of violence” as defined by § 924(c)(3)(A), the elements clause, or (3) a “crime of violence” as defined by § 924(c)(3)(B), the residual clause. For all three categories of crimes, the United States claims, the jury must determine whether the defendant’s conduct satisfies “elements of a separate federal felony” and whether the defendant used or possessed a firearm during or in furtherance of the crime. To prosecute a defendant under § 924(c) through the third category of crime, the United States asserts, the jury must further determine whether the defendant’s conduct “involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense” (§ 924(c)(3)(B)). The United States points out that, traditionally, however, courts do not involve the jury in determining whether a defendant’s conduct satisfies this third category of crime. The United States continues that courts traditionally follow a categorical approach where a judge assesses whether a hypothetical, “ordinary” conduct based on the “elements” of the “separate federal felony” would involve a “substantial risk” as required by § 924(c)(3)(B). The United States acknowledges that without deference to a jury, the residual clause is unconstitutionally vague. The United States returns to its position against such categorical approach by arguing that a textual analysis of § 924(c), in totality, points to holding juries responsible for findings of “substantial risk.”

The United States contends that the text “course of committing the offense” located in § 924(c)(3)(B) represents the defendant’s “own violation” and not an abstraction of conduct (emphasis in original). The United States claims that words such as “offense” can refer to both generic criminal activity and a defendant’s specific act, but, when read in the context of § 924, these words refer to a defendant’s specific act as opposed to generic criminal activity. The United States maintains that the word “involves” also suggests a “fact-specific” inquiry as it has been employed by Congress in statutory provisions which look into a defendant’s actual conduct. This applies to prior convictions also, claims the United States, as the court in Taylor v. United States noted the absence of “involves” as the reason to adopt a categorical approach. The United States claims that the use of “by its nature” in the statute defines the essential character or qualities of a defendant’s conduct. Furthermore, the United States claims that the categorical approach was never an intended interpretation of the law until the 1990s.

Conversely, Davis and Glover argue that application of 18 U.S.C. § 924(c)(3)(B) requires a categorical approach and should therefore be struck down for its unconstitutional vagueness. Davis and Glover reason that, based on a natural reading, “offense that is a felony”—language used in the residual clause—should refer to the statutory definition of a crime and not to a defendant’s specific conduct. Furthermore, Davis and Glover point out that the elements clause and the residual clause both use the language—“offense that is a felony.” Davis and Glover continues that, because the elements clause is applied using a categorical approach, which the United States agrees with, the residual clause should also be applied using a categorical approach. Otherwise, Davis and Glover explain, it would contravene traditional statutory interpretation because identical phrases in the same statute—§ 924(c)(3)—should not have different meanings.

Davis and Glover further argue that the phrase “by its nature” suggests that the natural reading of the statute supports a categorical approach. Like the United States’ ordinary reading of “nature,” Davis and Glover agree that the reading requires a look into the “basic or inherent features” of an offense and requires an inquiry into what the offense ordinarily entails. Davis and Glover assert that the nature of a crime cannot change based on the circumstances and has been read by the courts as the intrinsic nature of a criminal act. Moreover, Davis and Glover maintain that the word “involves” is not determinative, and that in James v. United States and Leocal v. Ashcroft, the inclusion of the word did not sway the Court from a categorical approach. The inclusion of “may be” along with “involves,” Davis and Glover argue, suggests a categorical approach as well given the fact that a bill is currently pending in Congress to replace such language to make the statute fact specific. Additionally, Davis and Glover contend that the language of the INA’s residual clause is identical to that of § 924(c)(3) and both were enacted around the same time with the same purpose, and therefore both should be construed to require the same analytical approach––categorical. Davis and Glover contend that the government’s proposed change in § 924(c)(3)(B)’s analytical approach extends § 924(c) beyond Congress’s intended scope because a prosecutor would have been able to convince a jury that any felony could be a “crime of violence” because of the specific way the crime was committed.

CONSTITUTIONAL AVOIDANCE PRINCIPLES AND FAIR-NOTICE

The United States argues that practical and constitutional concerns necessitate adoption of a fact-specific approach for applying § 924(c)(3)(B). The United States claims that when an otherwise unconstitutional statute has an alternative reading that would pass constitutional muster, the constitutional interpretation should take precedence. In this case, the United States maintains, reading § 924(c)(3)(B) to require a categorical approach would render the statute’s language unconstitutionally vague under Johnson and Dimaya; thus, a reading that uses the narrower fact-specific approach should be adopted to avoid the vagueness concerns. The United States asserts that although a categorical approach may be appropriate in the context of prior convictions, the “nature” of a prior conviction and that of the current offense are different. The United States adds that the nature of prior convictions can be taken from the judicial records of those convictions, while the nature of a current offense is the defendant’s particularized conduct in relation to the crime. This is why the current statute suggests a fact-specific approach, contends the United States, while other similarly worded statutes—which refer to prior convictions—were held to require a categorical approach.

Davis and Glover contend that the government’s constitutional concerns are flawed because they would disregard the rule of lenity. Davis and Glover claim that lenity prevents expansive statutory interpretations that create uncertain application, and rests the defining authority with Congress and not the courts. Further, Davis and Glover maintain that avoidance guards against separation-of-power concerns by presuming that Congress passes legislation that adheres to the Constitution. Davis and Glover also claim that the rule of lenity imposes a fair-warning requirement, as mandated by the Constitution. Applying this principle of fair-warning, argue Davis and Glover, would require the court to apply a narrower categorical reading over a broader fact-based reading unless the statute clearly requires a fact-specific approach. Davis and Glover assert that a categorical approach puts the public on notice about which actions constitute statutory offenses. Finally, Davis and Glover maintain that in lieu of a different interpretation, avoidance is not applicable because it violates the separation of powers by having the court subvert Congress’s intent and infringe on Congress’s exclusive authority to determine crimes and punishments.

VALIDITY OF RESPONDENTS’ § 924(c) CONVICTIONS

The United States argues that although the jury instructions did not ask the jury to determine whether the defendants’ conduct “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 lack thereof was a harmless error. The defendants’ conduct, the United States asserts, of using a short-barreled shotgun while threatening victims to comply with demands satisfied the substantial risk requirement beyond a reasonable doubt. The United States maintains that “physical force” includes relatively minor forms of injury such as slapping, and the defendants in this case exhibited far greater force. At a minimum, the United States posits, the case should be remanded so the jury can receive different instructions.

Davis and Glover argue that, in the event the court adopts a fact-specific inquiry, the convictions should not be reinstated. Davis and Glover claim that the incorrect instructions do not constitute a simple harmless error because they were not given the opportunity to contest to a jury whether their conduct presented a “substantial risk” of force. Going further, Davis and Glover contend that reinstating the convictions under the new analysis would constructively amend those indictments which can only be reinstated by the jury itself and not the court. According to Ashton v. Kentucky, Davis and Glover assert that convictions made under “an unconstitutional interpretation of a statute” cannot be sustained under a correct interpretation on appeal. Finally, Davis and Glover claim that the inquiry under the fact-specific approach requires a showing that the criminal conspiracy act always involves “a substantial risk of physical force”––which the conduct in question does not.