Johnson, Dimaya and Davis: The Supreme Court Takes up Vaugeness
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.
Davis has been deemed retroactive, 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 We got Here
Johnson vs. United States, 576 U.S. ___ (2015)
In Johnson, the Supreme Court determined that the residual clause of the Armed Career Criminal Act, a sentencing enhancement that makes a mandatory minimum of fifteen years for certain prior convictions, was unconstitutionally vague. The decision's syllabus, a summary, said the following:
Two features of the residual clause conspire to make it unconstitutionally vague. By tying the judicial assessment of risk to a judicially imagined “ordinary case” of a crime rather than to real-world facts or statutory elements, the clause leaves grave uncertainty about how to estimate the risk posed by a crime... At the same time, the residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony. Taken together, these uncertainties produce more unpredictability and arbitrariness than the Due Process Clause tolerates. This Court’s repeated failure to craft a principled standard out of the residual clause and the lower courts’ persistent inability to apply the clause in a consistent way confirm its hopeless indeterminacy.
The court's reasoning about how the residual clause left uncertainty about about how much risk it takes for a crime to qualify as a violent felony would end up crucial as a precursor to Davis. In order for a person to know how to defend themselves they must know what they are charged with and what the allegations are. In the weeks that followed, many, including us, noted that the language that made up the Residual Clause also applied to other parts of the code.
Sessions vs. Dimaya, 584 US _ (2018)
Shortly after Johnson, the Ninth Circuit held that 18 U.S.C. 16(b) was equally unconstitutionally vague.
James Garcia Dimaya, a Philippines native who, at age 13, became a lawful permanent resident in the U.S. In 2007 and 2009, he was convicted of residential burglary. As a result, the U.S. government sought deportation based on the fact that he committed an “aggravated felony,” which U.S. immigration law defines as any offense “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.”
When the Dimaya case reached the United States Court of Appeals for the Ninth Circuit, the court denied the Government’s deportation attempt of Dimaya, holding that the definition quoted above was too vague to be enforced, i.e., it was void for vagueness. Thus, Dimaya was not able to be deported.
The Ninth Circuit relied upon the Supreme Court’s holding in Johnson v. United States, which was a case in which a similar definition in a criminal statute was found to be unconstitutionally vague.
On certiorari from the Ninth Circuit, the Dimaya case was first argued before the Supreme Court in early 2017. At the time, there were only eight justices on the Court. The case ended in a split decision. Accordingly, the case was reargued in October 2017 after Justice Gorsuch joined the Court.
The Court held that a plain application of Johnson to 18 U.S.C. 16 required a finding that 16(b) is also void for vagueness. (2018). Following Dimaya, other courts noticed the similarities between 18 U.S.C. 16 and 18 U.S.C. 924(c)(3).
Under the latter statute, a “crime of violence” is defined as
(A) having 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. 18 U.S.C. 924(c)(3)(A)-(B).
Due to its nearly identical wording, some courts of appeals held that 18 U.S.C. 924(c)(3)(B) was unconstitutional in light of Johnson and Dimaya. However, the First, Second and Eleventh Circuits disagreed, finding that 924(c)(3)(B) is distinguishable because it requires a “case-specific” approach as opposed to the categorical approach.
The Facts – Davis and Glover Receive Significant Prison Time Under 18 U.S.C. § 924(c)
Maurice Davis and Andre Glover committed a string of gas station robberies in Texas. They were charged with federal robbery offenses. Most importantly, they were also charged with commission of a crime while possessing a firearm, the § 924(c) charge.
Following a jury trial, Davis received a prison sentence of more than 50 years, and Glover received more than 41 years. The length of those sentences was due to the enhanced penalties under § 924(c).
On appeal, they argued that the definition of “crime of violence” in § 924(c) is unconstitutionally vague. Though first rejecting the argument, the Fifth Circuit Court of Appeals agreed with Davis and Glover following the Supreme Court’s decision last term in Sessions v. Dimaya(discussed further below). The federal government appealed, and the Supreme Court agreed to hear the case.
The “Crime of Violence” Definition
Under § 924(c)(3), a “Crime of Violence” is defined as one of two things.
- Under § 924(c)(3)(A), a “Crime of Violence” is defined as:
A Felony that has as an element the use, attempted use, or threatened use of physical force against the person or property of another,
This portion of the law was not affected by Davis. 2. Under § 924(c)(3)(B), a “crime of violence” is defined 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 language, especially the phrase “by its nature," is significant in this case. Because it calls upon judges to determine whether a certain crime typically, or “by its nature,” involves violence. That means that the judge cannot look at the actual facts of the crime to see whether it involved violence. Rather, the judge has to speculate as to whether the crime is generally violent by its nature. Accordingly, the issue in the Davis case is whether asking a judge to speculate as to what crime is violent in the “ordinary” case is too vague a standard to be enforced. The Court found that it was too vague to pass constitutional muster.
The Court’s Majority Opinion – Following Past Court Decisions
Justice Gorsuch wrote the majority opinion and essentially held that the issue in the case has been decided by previous Court decisions. In fact, the definition of “crime of violence,” quoted above, is virtually identical to the “crime of violence” definitions in two other federal statutes. And those two other statutes were found to be unconstitutionally vague in Johnson v. United States, and Sessions v. Dimaya (in which Justice Gorsuch also wrote the majority opinion). Therefore, it would be inconsistent to find that the “crime of violence” definition in the Davis case was constitutional when two previous Court decisions found that the same language was unconstitutionally vague.
After finding the “crime of violence” definition unconstitutionally vague, Justice Gorsuch explained why the government’s arguments and the arguments in Justice Kavanaugh’s dissenting opinion were not persuasive. First, Justice Gorsuch noted that the “crime of violence” definition cannot be saved by finding that it allows judges to look at the actual facts of a particular case. That is not possible, according to the majority, because the language of the definition itself . Especially the phrase “by its nature” requires a court to look at the “nature” of a crime, not the actual facts in a particular case.
Also, Justice Gorsuch noted that historically § 924(c) has been read not to have judges look at the actual facts in a given case. To do so now, in order to save the statute, would be the Court making law rather than interpreting it. As for what should happen next for Davis and Glover, the Court determined that the lower courts need to make further decisions. In light of the Court’s constitutional holding to resolve their cases, a new trial may be possible.
Justice Kavanaugh’s Dissent – Trying to Show Differences from Johnson and Dimaya
Justice Kavanaugh’s dissent was joined by Justices Thomas, Alito, and Chief Justice Roberts (in part). It focuses on the fact that 18 U.S.C. § 924(c) had been enforced for 33 years, and that a “sudden” decision that finds the law unconstitutionally vague would put many prosecutions into question. He also added that the majority decision will make it harder to prosecute violent gun crimes in the future.
Aware that the Johnson and Dimaya decisions provided the motivation for the majority opinion’s analysis, Justice Kavanaugh tried to distinguish those cases from the Davis case. He argued that the two earlier cases dealt with enhanced sentences based on prior convictions. Davis, by contrast, “operates entirely in the present.“ A risk-based criminal statute” is both common and constitutional.
When cases like Davis are published, many people ask, "Will this case be applied retroactively?" Retroactivity means, in this sense, that the case may apply to individuals who have already been sentenced. I believed that the answer was no for quite some time. However, in re Hammoud, the 11th Circuit Court held that it could be.
What Happened in the case of in re: Hammoud?
Hammoud pled guilty to retaliation, solicitation to commit murder under 18 USC § 373, use of a gun in furtherance of a crime of violence under 924(c), and possession of a firearm by a convicted felon. Hammoud’s convictions were affirmed in 2007. In 2008 Hammoud filed his original motion to vacate* based on ineffective assistance of trial counsel, but he was denied.
Hammoud asked for permission to file a motion to vacate his sentence in 2018 arguing that his 924(c) charge was unconstitutional, citing Johnson vs. United States and Sessions vs. Dimaya, cases where the Supreme Court held that statutes similar to Hammoud's were vague. The court denied these claims stating that neither Johnson nor Dimaya could support a vagueness challenge to § 924(c)(3)(B). After United States vs. Davis was decided, Hammoud sought permission to file a motion to vacate his sentence.
What did the 11th Circuit Court Decide?
First, the 11th Circuit Court had to determine if Davis was a new rule of constitutional law. The court stated Davis was a new substantive rule of constitutional law because it narrowed the class of people who were eligible to be convicted under § 924(c). It was also new because it extended the rulings in Johnson and Dimaya to a new setting of the law (because Davis was deciding the law as it applied to 924(c) cases) and a new context.
Next, the 11th Circuit Court had to consider whether the Supreme Court has made Davis retroactive to cases on collateral review. Although the Supreme Court has not explicitly “made [the ruling in Davis] retroactive to cases on collateral review,” the Eleventh Circuit determined that they could look at Welch vs. United States, the same Supreme Court decision that caused Johnson to be retroactive in order to determine that Davis was retroactive. Further, the Eleventh Circuit held that a claim based on Davis is a new substantive rule of constitutional law in its own right separate from Johnson and Dimaya, making it immune from rules prohibiting prisoners from repeating the same claim in multiple motions.
Finally, the 11th Circuit Court looked at whether Hammoud's claim was appropriate to go forward. The court said that it was, indicating that the claim that he made, whether a solicitation of murder met the standard for "crime of violence," had not been decided by the Supreme Court nor the 11th Circuit Court. This meant that Hammoud's claim was appropriate to go forward.
As a result, the 11th Circuit Court granted Hammoud permission to file a motion to vacate.
How Davis Works
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” Under 924(c)(3)(B)
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.
How can I file for Relief Under Davis?
What If My Case is on Direct Appeal?
If you are currently on direct appeal and raised a Johnson/Dimaya 924(c) claim, then it is possible that your case has been stayed or placed in abeyance pending a decision in Davis. Now that Davis has been decided, it may be advisable to file a letter under Federal Rule of Appellate Procedure 28(j) alerting the court of the decision. The same is true if your appeal is currently pending but the court has not ordered a stay.
Similarly, your case may be waiting on a circuit case that was stayed pending Davis. For example, many cases in the Fourth Circuit are currently placed in abeyance pending a decision in United States v. Simms, No. 15-4640. Although Simms was decided back in January, the mandate was stayed pending Davis. If your case is stayed based on a circuit case that was also stayed pending Davis, then you will need to wait for a decision in the circuit case before your appeal can move forward.
What if I have filed a motion under 28 USC § 2255?
Likewise, there are many of you out there with a 2255 motion that has been stayed awaiting a decision in Davis. If that is the case, now is the time to supplement your motion with the Court’s decision.
If you have not filed a 2255 motion, but believe Davis applies to your case, please reach out to me at [email protected] to discuss your case further.
What about a 2241 motion?
For those who missed the statutory deadline to file under Johnson, a 28 U.S.C. 2241 Petition may be a viable option if Davis applies to you. However, there are quite a lot of nuances involved with a 2241 Petition. Whether you can seek 2241 relief is going to depend on the circuit law in your place of confinement, as well as a number of other factors. If you are interested in discussing the potential merits of a 2241 petition, please email me at [email protected]
What if My Appeals and Motions Have been Denied?
Sadly, there are many, many defendants who had their appeal and/or collateral motions denied because the court found that Johnson and Dimaya had no impact on 18 U.S.C. 924(c)(3)(B). Clearly, those courts were wrong. But there may now be ways to reopen your case or seek other remedies. The possibilities depend on the unique facts of your case and will need to be discussed further. But such options would include a motion to recall the mandate if an appeal was denied, or a motion for reconsideration or possibly a Fed. R. Civ. P. 60(b) motion. Again, there are factors in each case that affect the viability of certain avenues.