What Does United States v. Davis Actually Mean?
On June 24, 2019, the Supreme Court decided the case of United States v. Davis. The decision was a major decision because, in a 5-4 vote, the Court found that a criminal statute was unenforceable as unconstitutionally vague. Specifically, it held that the federal definition of a “crime of violence” contained in 18 U.S.C. § 924(c), which mandates substantial prison time for people who use or carry a firearm in the course of a crime, is too vague to be enforced.
Given that some courts have begun to apply the Davis decision retroactively – which means it may apply to sentences before the Davis decision was handed down – this article will answer some basic questions about the application of the recent Court decision. Indeed, we will discuss how the decision would apply to a case involving the enhanced sentencing under 18 U.S.C. § 924(c), and in what circumstances the decision does not apply.
How Davis Works
The Davis Decision Itself
As noted, the Davis case deals with the vagueness of 18 U.S.C. § 924(c). That statute authorizes heightened criminal penalties for using, carrying, or possessing a firearm in connection with any federal “crime of violence or drug trafficking crime.”
The phrase “crime of violence” is defined in two subparts of the statute -- § 924(c)(3)(A), often called the “elements clause;” and § 924(c)(3)(B), often called the “residual clause.” The Davis case focuses specifically on the residual clause at § 924(c)(3)(B).
Accordingly, the residual clause at § 924(c)(3)(B), defines “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.18 U.S.C. § 924(c)(3)(B)
That statutory language – particularly the phrase “by its nature” – is, as a majority of the Court found, particularly problematic. That is because it called upon judges to determine whether a certain crime typically, or “by its nature,” involves violence. That means that the judge could not look at the actual facts of the crime to see whether the crime involved violence. Rather, the judge had to speculate as to whether the crime is generally violent by its nature.
For example, in the Hobbs Act robbery case of Mr. Davis and Mr. Glover – the litigants in the Davis case – the judge had to determine whether the “ordinary” case of robbery involves violence, even if there was no actual violence in Davis and Glover’s robberies.
That is the crux of the issue in the Davis case, and the Court determined that having judges speculate as to what crime is violent in the “ordinary” case was too vague a standard to be properly enforced. Therefore, § 924(c)(3)(B) was held to be unconstitutionally vague.
How the Davis Decision is Applied to Other Cases
As the Court stated in the opening of its opinion, when Congress passes a vague law, which it did in Davis, the role of the courts is to “treat the law as a nullity.” In other words, the Court stated that “a vague law is no law at all.”
That means that the enhanced punishment involving the residual clause in § 924(c)(3)(B) is not operative. In turn, that means that a person given an enhanced sentence under § 924(c)(3)(B) should be able to have that enhanced sentence vacated, or removed, in a resentencing hearing.
To clarify, if a person is convicted for a federal crime, and his or her sentence was enhanced under § 924(c)(3)(B), then that person can move the sentencing court for a resentencing hearing to vacate the enhanced penalties.
While it is important that inmates know that they have recourse to ask for a resentencing hearing if they had their sentences increased because of § 924(c)(3)(B). It is, however, also important to know in what circumstances the Davis decision does not apply.
Davis Does Not Apply to +2 Enhancements for Gun Charges
Under the Federal Sentencing Guidelines there is a sentencing enhancement, adding normally 2 points under the Guidelines, if a person is charged with possession of a firearm during commission of the underlying offense. The Davis decision does not have any impact on such a sentencing enhancement.
Remember, a resentencing hearing under Davis only applies when someone receives a sentence enhancement under the federal statute 18 U.S.C. § 924(c)(3)(B).
Davis Does Not Apply to Drug Charges
The Davis decision also does not apply to sentencing enhancements related to drug charges under § 924(c). As noted above, there are a number of subparts to § 924(c), and the statute applies to using, carrying, or possessing a firearm in connection with any federal “crime of violence or drug trafficking crime.”
Accordingly, if a person was charged with possessing a firearm in connection with a “drug trafficking crime” – the second half of § 924(c) – then Davis does not apply. Davis was only focused on the “crime of violence” portion of the statute, and only the residual clause part at that.
Thus, a person cannot seek a resentencing hearing under Davis when he or she was charged with possessing a firearm in connection with a drug trafficking crime.
Davis Only Applies When the Underlying Crime is a “Crime of Violence.”
As you can see from the section above, Davis only applies when a person is charged with possession of a firearm, and the underlying crime was previously found to be a “crime of violence,” under the residual clause of § 924(c)(3)(B).
It is important to note the distinction, discussed above, between the “elements clause” in § 924(c)(3)(A), and the “residual clause” in § 924(c)(3)(B). The best way to understand the distinction is through an example. Fortunately, the facts of the Davis case itself provide a good example.
Both defendants Davis and Glover committed a string of robberies in Texas. They were charged with Hobbs Act robbery, and a separate count of conspiracy to commit Hobbs Act robbery. Given that they were found to have used or possessed a gun during the crimes, § 924(c) mandated that the defendants receive a minimum sentence of at least 5 years on top of the sentence they receive for the underlying crime of violence.
So, for Davis and Glover, they received mandatory sentences of 35 years each on the robbery and conspiracy to commit robbery offenses. Then, applying § 924(c), coupled with their criminal history, Davis received a 50-year sentence, and Glover a 41-year sentence.
When asking to have their § 924(c) sentence enhancements removed in the lower courts, the courts did not make any changes in connection with the enhancements for their robbery convictions. Why? Because robbery is a crime of violence under the “elements clause” at § 924(c)(3)(A).
However, their enhanced sentences related to their conspiracy to commit robbery convictions were vacated because conspiracy to commit robbery is a crime of violence under the “residual clause” of § 924(c)(3)(B), which Davis holds is unconstitutionally vague.
If all of this seems a bit confusing, not to worry. If, after reviewing this article, you still have questions related to your specific circumstances, then you should be sure to contact an experienced sentencing attorney to help you determine whether you are eligible to file a 2255 motion and seek a resentencing hearing under Davis.
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