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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.

McCalla pled guilty to conspiracy to possess at least five kilograms of cocaine with intent to distribute. The Mandatory minimum, in that case, was ten years. His range of punishment was 136 to 168 months. He was sentenced to 126 moths and the court found that a sentence below the advisory guideline range would be sufficient but not greater thank necessary to comply with the requirements of section 3553. McCalla was informed that he had the right to appeal. He did not file a direct appeal. In his 2255 motion he alleged that he would have appealed his sentence if counsel had consulted him and that counsel knew that McCalla was unhappy with the indictment and sentence. McCalla also stated that he “expressed his desire to challenge [this] unbelievable result” and requested an evidentiary hearing.

The magistrate replied that he McCalla’s motion should be denied, that McCalla did not ask counsel to file an appeal, that counsel did not have a duty to consult McCalla and that “no rational defendant would have wonted to appeal.” The magistrate ruled that McCalla was not entitled to an evidentiary hearing because his claim was meritless. The District court adopted the recommendation of the Magistrate’s court and denied the certificate of appealability.

On appeal the court started by stating that both a direct appeal and effective assistance of counsel are rights. Further, the accused has the authority to make certain decisions regarding the case such as whether to take the appeal. Counsel is to advise the defendant about the advantages and disadvantages of taking an appeal and make a reasonable effort to discover the defendant’s wishes. When a defendant has not instructed counsel to file a notice of appeal there is a constitutional duty to consult when a defendant reasonably demonstrated to counsel that he was interested in appealing. When counsel’s performance deprives a defendant of an appeal that he would have otherwise taken then that is prejudice even if the appeal would not have won.

McCalla’s statement that he wanted to challenge his sentence showed that he was interested in appealing. Counsel was to advise McCalla about the advantages of taking an appeal. Counsel did not. If counsel had done their duty then McCalla would have asked his attorney to appeal the sentence. This showed that McCalla had alleged facts, that, if true, established a successful ineffective assistance of counsel claim entitling him to an appeal Neither the fact that he not have been successful nor the fact that the sentencing judge notified Thompson that he had a right to appeal changes the conclusion of the court. This means that the district court abused their discretion when they denied his evidentiary hearing on this.

The Eleventh circuit reversed with orders to schedule an evidentiary hearing.

McCalla v. United States. No. 16-15623, 2018 WL 1747722

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.

In United States v. Evans, Nos. 16-10310, 16-10311, the Ninth Circuit vacated terms of supervised release handed down by the Northern District of California because they were unconstitutionally vague.

Evans was charged with a probation violation as well as felon in possession of a firearm and ammunition. Evans was sentenced to two years for the supervised release violation to be ran consecutively with 57 months of imprisonment for the felon in possession charge. This was in addition to three years of supervised release subject to both standard and special conditions of supervised release.

Evans argued on appeal that several conditions of supervised release were unconstitutionally vague. “A condition of supervised release violates due process ‘if it either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.’”

On appeal, Evans challenged a condition preventing him from associating with “any member of the Down Below Gang: “The defendant shall have no connection whatsoever with the Down Below Gang or any other gang. If he is found to be in the company of such individuals or wearing the clothing, colors or insignia of the Down Below Gang, or any other gang, the court will presume that the association was for the purpose of participating in gang activities.”

The Ninth Circuit said that the district court did not abuse its discretion in imposing the condition as he had been linked to that gang and its members. His prior supervised release conditions prohibited him from entering the district where the Down Below Gang congregated.  The condition was found not to be procedurally unreasonable. Although the court did not explain its reasoning for this condition, there was enough information in the record as to what the Down Below Gang was and Evans’ connection to them for the condition to stand. Similarly, the requirement that he have “no connection whatsoever with the Down Below Gang or any other gang” is not vague and overbroad because the court construed there to be a mens rea requirement to that condition. However the condition also said “If [Evans] is found to be in the company of [gang members] or wearing the clothing, colors or insignia of the Down Below Gang, or any other gang, the court will presume that the association was for the purpose of participating in gang activities.” The Ninth Circuit found this to be inappropriate because it removes the requirement that the government prove mens rea in a future revocation proceeding. As such, this sentence was found to be overbroad and was sent back to the district court to be removed.

Similarly, three standard conditions were also found to be vague. Standard Condition 4 requires Evans to “support his or her dependents and meet other family responsibilities.” Evans challenged this saying that “meet other family responsibilities” is too vague and does not alert him as to what he is supposed to be doing. The court noted that the United States Sentencing Guidelines Manual 5D1.3(d)(1) omitted the phrase “meet other family responsibilities.”

Standard Condition 5 requires Evans to “work regularly at a lawful occupation unless excused

by the probation officer for schooling, training, or other acceptable reasons.” Evans challenged the word “regularly,” arguing that it has no clear definition and renders the condition unconstitutionally vague. The Court found that there was no meaning for the word “regularly” in this context. The amended condition in 5D1.3(c)(7) requires thirty hours per week. Or it could mean the same amount each week or month. The court found that this did not give him enough information and he could end up finding what this means in a hearing. The court found it to be vague and remanded it.

Standard condition 13 requires Evans “[a]s directed by the probation officer,” to “notify third parties of risks that may be occasioned by [his] criminal record or personal history or characteristics….” Again, Evans said that there was no indication of what “personal history,” “characteristics,” “risks” or “third parties” means. The government argued that he could talk to his probation officer, but the court noted that a vague condition of supervised release can’t be cured by giving the probation officer “unfettered power of interpretation.” Again, the Sentencing Commission amended the guideline to remove the phrase “personal history or characteristics” and “to clarify that a probation officer may only require a defendant to notify specific persons of specific risks that the defendant poses to those persons.”

The Ninth Circuit Reversed, 16-10310, 16-10311

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.