Davis vs. United States 924(c)(3)(b)

United States v Davis was handed down on June 24, 2019

As many of you have heard, the Supreme Court has finally decided the much-anticipated case of United States v. Davis, No. 18-431. In Davis, the Court held that the residual clause of 18 U.S.C. 924(c)(3)(B) is unconstitutionally vague in the wake of Johnson v. United States, 135 S.Ct. 2551 (2015) and Sessions v. Dimaya, 138 S.Ct. 1204 (2018).

While this is great news for many, I know that a lot of you have plenty of questions about Davis. I want to take this opportunity to discuss what exactly the holding in Davis means, how we got here, and what it might mean for your individual case.

How Did We Get Here?

Back in 2015, the Supreme Court held in Johnson v. United States, 135 S.Ct. 2551 (2015), that the residual clause of 18 U.S.C. 924(e)(2)(B) was unconstitutionally vague and a violation of Due Process. Under the Armed Career Criminal Act (“ACCA”), a “violent felony” was defined as a crime punishable by imprisonment for a term exceeding one year that (i) has an element the use, attempted use, or threatened use of physical force against the person of another; or (2) is burglary, arson, extortion, involves use of explosive, or otherwise involves conduct that presents a serious potential risk of physical injury to another. 18 U.S.C. 924(e)(2)(B)(i)-(ii). The language found to be void for vagueness by the Supreme Court was the clause “or otherwise involves conduct that presents a serious potential risk of physical injury to another.”

While Johnson was focused primarily on the language of section 924(e), many noticed the inescapable similarities between the ACCA and other criminal statutes. One such example was the definition “crime of violence” in 18 U.S.C. 16. Under that statute, a crime of violence is defined as (a) an offense that has an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) 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. 16(a)-(b).

Shortly after Johnson, the Ninth Circuit held that 18 U.S.C. 16(b) was equally unconstitutionally vague. The case went up to the Supreme Court and 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. Dimaya v. Sessions, 138 S.Ct. 1204 (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 Supreme Court rejected this notion in Davis, finding that 18 U.S.C. 924(c), like 924(e) and 16, requires the use of the categorical approach. Accordingly, the Court has held that the language under 18 U.S.C. 924(c)(3)(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”) can no longer stand.

How Does United States vs. Davis Work?

Now that Davis has finally been decided, what does that mean for individuals with a 924(c) conviction?

First, Davis did not rule the entire portion of the 924(c) statute unconstitutional. Only the residual clause under 924(c)(3)(B) is affected. This means that those with a 924(c) conviction that is in furtherance of a drug trafficking crime are unaffected by Davis. Likewise, if the crime of violence underlying the 924(c) conviction “has as an element the use, attempted use, or threatened use of physical force against the person or property of another,” then that, too, is not impacted by Davis.

Whether a crime of violence falls under subsection (A) or (B) of 924(c)(3) is critical in determining whether an individual may receive relief under Davis. An example of a crime falling under the now-void subsection (B) would be conspiracy to commit Hobbs Act robbery, as discussed in Davis.

The next question is, how does one apply for relief under Davis? The answer all depends on the procedural posture of your case. If you are in pre-trial or pre-sentencing, you need to discuss with your attorney immediately any possible effect of Davis on your case. For appellate and post-conviction individual, I will address each separately.

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.

If you are looking for assistance with your appeal, please contact me at [email protected] to discuss your appeal.

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. If your appeal or motion was denied because the court found 924(c)(3)(B) to be constitutional, please contact me at [email protected] or here to discuss your loved one’s case.

The law firm of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had successful outcomes in more than 60 cases in the past three years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve.

Koons v. United States. No. 17-5716

The petitioners in Koons v. United States had committed crimes that invoked the use of the mandatory minimums, their sentences were based on these ranges.  Each of them provided information to the government that assisted in the investigation and prosecution of a case. As a result of this the prosecutor filed for reduction motions that resulted in sentences below the mandatory minimums.  The court did not consider the guideline ranges on the case. This is because the court discarded those when the court sentenced the petitioners to the mandatory minimums.

Later, the sentencing commission approved Amendment 782, which retroactively reduced the guidelines allowing a proportional reduction in sentence for those convicted under the advisory guidelines. In this case, the petitioners claimed they should be eligible for a sentence reduction.  The court said that the petitioners would have to prove that their sentence was based on a sentence that was “based on” the guidelines. They were unable to, and their motions were denied.

Writing for the court, Justice Alito held that petitioners do not qualify for sentence reductions under §3582(c)(2) because their sentences were not “based on” their lowered Guidelines ranges, but instead their sentences were “based on their mandatory minimums and on their substantial assistance to the Government.


The court noted that they had ruled in Hughes that “for a sentence to be “based on” a lowered Guidelines range, the range must have at least played “a relevant part [in] the framework the [sentencing] judge used” in imposing the sentence,” but “when the ranges play no relevant part in the judge’s determination of the defendant’s ultimate sentence—the resulting sentence is not “based on” a Guidelines range.”  Here, the guideline ranges played no part in their sentences because “the ranges play[ed] no relevant part in the judge’s determination of the defendant’s ultimate sentence” as the guideline ranges were discarded for the mandatory minimums.


The court also noted in response to the petitioners argument that “What matters, instead, is the role that the Guidelines range played in the selection of the sentence eventually imposed—not the role that the range played in the initial calculation. And here, while consideration of the ranges may have served as the “starting point” in the sense that the court began by calculating those ranges, the ranges clearly did not form the “foundation” of the sentences ultimately selected.”


The Supreme Court affirmed the decision of the appellate court, denying the petitioner’s motions.  Koons v. United States. No. 17-5716

Hughes v. United States, No. 17–155, 584 U. S. ____ (2018)

Eric Hughes accepted a plea deal in 2013 after being accused of four charges related to drug conspiracy. He pled guilty to conspiracy to distribute methamphetamine and being a felon in possession of a gun in return for the dismissal of the other two charges and the withholding of information regarding previous drug felonies. For the two guilty charges, Hughes agreed to serve a term of 180 months.

In his plea deal, no reference was made to the Guidelines range, however, upon accepting the deal, the District Court noted that the deal was “compatible” with the Guideline ranges. At the time, the recommended range for Hughes’s crimes was set at 188-235 months. Such a consideration by the District Court is required before accepting any plea deal.

Upon the adoption of amendment 782 to the Sentencing guidelines, a crime like Hughes’s would have a recommended range of 151-188 months. Hughes petitioned the court for a reduction in sentence under Amendment 782. The court denied Hughes a reduction on the grounds that Hughes’s plea agreement did not reference the guideline ranges and, therefore, his sentence was not based on the guidelines in a way that would warrant a reduction.

The Court indicated that “the controlling issue here is whether a defendant may seek relief under §3582(c)(2) if he entered a plea agreement specifying a particular sentence under Federal Rule of Criminal Procedure 11(c)(1)(C).”  This is also called a “type-c” agreement.


Writing for the Court, Justice Kennedy said that “a sentence imposed pursuant to a Type-C agreement is ‘based on’ the defendant’s Guidelines range so long as that range was part of the framework the district court relied on in imposing the sentence or accepting the agreement.”


“In the typical sentencing case there will be no question that the defendant’s Guidelines range was a basis for his sentence. The Sentencing Reform Act requires a district court to calculate and consider a defendant’s Guidelines range in every case.”  


The Court went to say that “a defendant’s Guidelines range is both the starting point and a basis for his ultimate sentence” and that agreed sentences under 11(c)(1)(C) were no different.  “Although in a Type-C agreement the Government and the defendant may agree to a specific sentence, that bargain is contingent on the district court accepting the agreement and its stipulated sentence.”  Further, the court noted that “the Sentencing Guidelines prohibit district courts from accepting Type-C agreements without first evaluating the recommended sentence in light of the defendant’s Guidelines range.”  Thus, although the plea deal did not directly reference the Guidelines, they are understood to have played a role in the sentence given that the Court is required to consider the guidelines before accepting a plea deal.

For these reasons, the Supreme Court reversed the decision of the court of appeals and the case was remanded for further consideration.  No. 17–155, 584 U. S. ____ (2018)

United States v. Fleming, No. 17-3954

Fleming was convicted of possessing cocaine with intent to distribute.  His total offense level was 21, and his criminal history category was II.  He was thought to be a career offender, but his priors did not qualify. His range of punishment was 41 to 51 months, but his mandatory minimum was 60 months.  


At the beginning of the hearing the district court provided the parties with copies of a local news article that had been published on about an Ohio State report documenting an increase in overdose deaths in the state.  The article focused on opiod overdoses mainly, only mentioning cocaine briefly and only in connection with opioids. The article was a little over 200 words. The article observed that “ there are indications that cocaine is increasingly being used with fentanyl and other opiates,” and that 80.2% of all cocaine overdose deaths in 2016 also involved an opiate.  


There was no suggestion that there would be a variance at the beginning of the hearing or that the court was considering one.  Both the government and the defense made arguments and asked a sentence of 60 months. Neither side mentioned the article or community harm by opioids.  


The court varied upward and imposed a sentence of 120 months in prison.  The court said that “the Guidelines were not ‘sufficient to address the kind of issues that we’re now having with this type of trafficking in these large amounts of cocaine.’”  The district court said that the article was “[i]n large part . . . some indication of why long, lengthy sentences are necessary to try and deter” cocaine trafficking.” The court made no reference to Fleming’s near-status as a career offender.  Fleming appealed stating that his sentence was procedurally and substantively unreasonable.


The court noted that a sentence can be procedurally unreasonable when “the facts or issues on which the district court relied to impose a variance came as a surprise and [the defendant’s] presentation to the court was prejudiced by the surprise.”  The court also said that the reliance on information from the article from was a surprise and prejudicial to Fleming’s sentencing presentation and as such the sentence was procedurally unreasonable. Fleming’s case was possession of cocaine, not the opioids that were discussed in the article.  Plus there was no evidence of opioids in his case.


The court also noted that “the weight the court ultimately assigned to [unexpected] considerations” may contribute to the surprise.  In this case, the court clearly stated that the article was important to the decision. Fleming’s inability to contest the veracity or relevance was part of the prejudice:  He was not able to test the veracity or relevance of the information in the article because it was given to him at the beginning of the hearing.


Further, although this was presented to the parties at the beginning of the sentencing hearing they didn’t know how it was going to be used until after counsel made his argument.  


The government claimed that the plain error doctrine applied to this case.  Plain error is “(1) error (2) that was obvious or clear, (3) that affected [his] substantial rights and (4) that affected the fairness, integrity, or public reputation of the judicial proceedings.”


The court stated that the case was error for the reasons already stated.  The court stated that it was obvious because he district court should have realized that the article contained information that the parties might reasonably not have anticipated would be relevant. The district court should also have been aware that the structure of the sentencing hearing—in which the parties were given the article only at the start of the hearing, the underlying state report was not provided at all, and the district court did not explain why the article was relevant until after the parties’ arguments—would prevent Fleming from commenting on that information in a meaningful way.”  


The court also said that Fleming’s substantial rights were affected.  “A sentencing error affects a defendant’s substantial rights when there is a reasonable probability that, but for the error, she would have received a more favorable sentence.”  If the judge had given notice of the court’s intent to use the, article then counsel would have been able to persuade that the article was unreliable.


The Court determined that the error “affected the fairness, integrity, or public reputation of the judicial proceedings.”  because “Fleming may serve an additional five years in prison based on potentially unreliable and extraneous information that was interjected into the proceedings in a way that ensured no meaningful adversarial testing.”  


Because the court determined that the case was procedurally unreasonable by a plain error standard the court determined that it was not necessary to consider substantive unreasonableness.  


Fleming also asked that the case be reassigned to a different judge on remand but the court indicated that was not justified in the record.  The court uses three factors to determine whether reassignment is warranted:


(1) whether the original judge would reasonably be expected to have substantial difficulty in putting out of his or her mind previously expressed views or findings;

(2) whether reassignment is advisable to preserve the appearance of justice; and

(3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.


Fleming said that reassignment of the case to a different judge was necessary because the judge stated that Fleming had good fortune in avoiding career offender status and that showed that the judge was predisposed to giving Fleming a higher sentence.  However, the district judge also noted that he could not and would not consider Fleming’s “close call” in escaping the career offender enhancement against him. And while Fleming also points out that the Judge indicated the strong likelihood that Fleming would qualify as a career offender, that was before it was determined that he was not a career offender.  Thus the Circuit court declined to hold that Fleming’s case should be reassigned to a different Judge.


The Sixth Circuit vacated the sentence and remanded the case for resentencing.  No. 17-3954