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United States v. Simms

United States Court of Appeals, Fourth Circuit

January 24, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
JOSEPH DECORE SIMMS, Defendant-Appellant. FOURTH CIRCUIT FEDERAL DEFENDER OFFICES, Amicus Supporting Appellant.

          Argued: September 26, 2018

          Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Terrence W. Boyle, Chief District Judge. (4:15-cr-00010-BO-1)

         ARGUED:

          Dhamian Blue, BLUE LLP, Raleigh, North Carolina, for Appellant.

          Phillip Anthony Rubin, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

          Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Amici Curiae.

         ON BRIEF:

          Brian A. Benczkowski, Assistant Attorney General, Matthew S. Miner, Deputy Assistant Attorney General, John P. Taddei, Appellate Section, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; John Stuart Bruce, Acting United States Attorney, Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

          Anthony Martinez, Federal Public Defender, FEDERAL PUBLIC DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina; Parks N. Small, Federal Public Defender, Columbia, South Carolina; Louis C. Allen, Federal Public Defender, Greensboro, North Carolina; Fred Heblich, Interim Federal Public Defender, Roanoke, Virginia; Christian M. Capece, Federal Public Defender, Charleston, West Virginia; James Wyda, Federal Public Defender, Baltimore, Maryland; Paresh S. Patel, Assistant Federal Public Defender, Greenbelt, Maryland; G. Alan DuBois, Federal Public Defender, Raleigh, North Carolina; Geremy Kamens, Federal Public Defender, Alexandria, Virginia; Brian J. Kornbrath, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Clarksburg, West Virginia, for Amici Curiae.

          Before GREGORY, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, KING, DUNCAN, AGEE, KEENAN, WYNN, DIAZ, FLOYD, THACKER, HARRIS, RICHARDSON, and QUATTLEBAUM, Circuit Judges.

          DIANA GRIBBON MOTZ, CIRCUIT JUDGE.

         Joseph Decore Simms was convicted of brandishing a firearm in connection with a "crime of violence," as defined in 18 U.S.C. § 924(c)(3)(B). He appeals, contending that § 924(c)(3)(B), as long understood, is unconstitutionally vague. The Government concedes this point but urges us to abandon the settled meaning of the statute and employ a new definition of "crime of violence."

         We cannot do so. Neither the statutory language nor controlling precedent offer any support for the Government's proposed reinterpretation. Rather, the text and structure of § 924(c)(3)(B) plainly set forth a definition of "crime of violence" that fails to comport with due process. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

         I.

         This case arises from an April 2014 conspiracy to rob a McDonald's in Goldsboro, North Carolina. Shortly after 1:00 a.m., Simms and a co-conspirator crawled into the McDonald's through the drive-through window; a third robber served as a lookout. When inside, Simms pointed a gun at the manager, attempted to strike another employee, and demanded money. The manager complied and opened the restaurant's safe. After removing the contents, Simms struck the manager with the gun, threw a cash drawer at the other employee, and fled with his two co-conspirators and $1, 100.

         After his arrest and indictment, Simms pleaded guilty to Count I, conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951, and Count II, brandishing a firearm during and in relation to a "crime of violence" - that is, the Hobbs Act conspiracy in Count I - in violation of 18 U.S.C. § 924(c)(1)(A). But at sentencing, Simms argued that his conviction under Count II was unconstitutional in light of Johnson v. United States, 135 S.Ct. 2551 (2015). He contended that Hobbs Act conspiracy was not a "crime of violence" because the definition of this term in 18 U.S.C. § 924(c)(3)(B) was unconstitutionally vague, like the similar definition of "violent felony" that the Supreme Court struck down in Johnson. The district court rejected this argument and sentenced Simms to 115 months' incarceration on Count I and 84 months on Count II, for a total consecutive sentence of 199 months' imprisonment.

         Simms appealed, again contending that his conviction under Count II could not stand because § 924(c)(3)(B) was unconstitutional.[1] After the parties briefed and argued the appeal before a panel of this court, the Supreme Court struck down as unconstitutionally vague a statute containing language materially identical to that challenged by Simms. See Sessions v. Dimaya, 138 S.Ct. 1204, 1223 (2018). Given the exceptional importance and recurring nature of the question presented here, we agreed to rehear the case en banc. For the reasons that follow, we now reverse.

         II.

         We must determine whether the definition of "crime of violence" in § 924(c)(3)(B) satisfies the requirements of due process.

         In resolving this question, we first set forth the statutory framework and examine Supreme Court precedent interpreting text materially identical to that at issue here. We then address the contours of Simms's constitutional challenge, drawing on the Supreme Court's consideration of identical challenges to similar statutory language. Finally, we explain why, in light of the plain text and binding Supreme Court precedent, we must hold § 924(c)(3)(B) unconstitutional.

         A.

         Federal law, as codified at 18 U.S.C. § 924(c)(1)(A), provides that a person who uses or carries a firearm "during and in relation to any crime of violence" or who "possesses a firearm" "in furtherance of any such crime" may be convicted of both the underlying crime (here, Hobbs Act conspiracy) and the additional, distinct crime of utilizing a firearm in connection with a "crime of violence," with the latter punishable by at least five consecutive years of imprisonment.

         Section 924(c)(3) defines "crime of violence" as "an offense that is a felony" and

(A) has 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). Courts commonly refer to § 924(c)(3)(A) as the "force clause" and to § 924(c)(3)(B), the provision at issue here, as the "residual clause." For Simms's § 924(c) conviction to stand, his Hobbs Act conspiracy offense must constitute a "crime of violence" under one of these two definitions.

         Our analysis begins with the force clause, § 924(c)(3)(A). To determine whether an offense is a crime of violence under that clause, courts use an inquiry known as the "categorical" approach. They look to whether the statutory elements of the offense necessarily require the use, attempted use, or threatened use of physical force. See, e.g., Leocal v. Ashcroft, 543 U.S. 1, 7-10 (2004) (interpreting materially identical text in 18 U.S.C. § 16(a)); United States v. McNeal, 818 F.3d 141, 151-52 (4th Cir. 2016) (interpreting § 924(c)(3)(A)). This approach is "categorical" because courts consider only the crime as defined, not the particular facts in the case. See, e.g., McNeal, 818 F.3d at 152. To be more precise, we will refer to the force clause inquiry as the elements-based categorical approach, because it begins and ends with the offense's elements. When a statute defines an offense in a way that allows for both violent and nonviolent means of commission, that offense is not "categorically" a crime of violence under the force clause.

         Simms's offense - conspiracy to commit Hobbs Act robbery - does not categorically qualify as a crime of violence under the elements-based categorical approach, as the United States now concedes. Gov. 28(j) Letter at 1, ECF No. 44 (Oct. 19, 2016); Simms Suppl. Br. at 1. This is so because to convict a defendant of this offense, the Government must prove only that the defendant agreed with another to commit actions that, if realized, would violate the Hobbs Act. Such an agreement does not invariably require the actual, attempted, or threatened use of physical force.

         Accordingly, the only way we can sustain Simms's conviction on Count II is if his commission of Hobbs Act conspiracy constitutes a crime of violence under the residual clause - that is, if we determine that he committed a felony 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." 18 U.S.C. § 924(c)(3)(B). Interpreting a materially identical clause in another statute, the Supreme Court has directed courts to employ a categorical approach that - as with the force clause - "look[s] to the elements and the nature of the offense of conviction, rather than to the particular facts." Leocal, 543 U.S. at 7 (interpreting 18 U.S.C. § 16(b) to "require[]" categorical analysis); see also United States v. Aragon, 983 F.2d 1306, 1312-13 (4th Cir. 1993) ("conclud[ing] that the plain language of § 16(b) mandates that the court embark upon a categorical approach").[2]

         Importantly, however, the analysis applicable to the residual clause constitutes a "distinctive form" of the categorical approach. Dimaya, 138 S.Ct. at 1211 (interpreting § 16(b)). Unlike the elements-based categorical approach of the force clause, the residual clause inquiry "goes beyond deciding whether creation of risk is an element of the crime." Johnson, 135 S.Ct. at 2557 (interpreting 18 U.S.C. § 924(e)(2)(B)(ii)). Under the residual clause, courts must use the statutory definition of an offense to imagine its "ordinary case," and then consider whether this imagined ordinary case entails a "substantial risk" of force. Dimaya, 138 S.Ct. at 1211 (internal quotation marks omitted); see also 18 U.S.C. § 924(c)(3)(B).

         We call the analysis applicable to the residual clause the ordinary-case categorical approach. This ordinary-case categorical approach is "broader than" the elements-based categorical approach applicable to the force clause, "in the sense that force need not actually be applied" in a residual clause offense. Leocal, 543 U.S. at 11.

         B.

         Simms contends that conspiracy to commit Hobbs Act robbery does not constitute a crime of violence under the residual clause, § 924(c)(3)(B), because that clause - like the similarly worded residual clauses analyzed in Johnson, 135 S.Ct. 2551, and Dimaya, 138 S.Ct. 1204 - is void for vagueness.

         As Justice Kagan explained in Dimaya, "'[t]he prohibition of vagueness in criminal statutes' . . . is an 'essential' of due process, required by both 'ordinary notions of fair play and the settled rules of law.'" 138 S.Ct. at 1212 (plurality opinion) (quoting Johnson, 135 S.Ct. at 2557). Vague criminal statutes "invite the exercise of arbitrary power . . . by leaving people in the dark about what the law demands and allowing prosecutors and courts to make it up." Id. at 1223-24 (Gorsuch, J., concurring in part and concurring in the judgment). The void-for-vagueness doctrine thus ensures citizens have fair notice of prohibited conduct, guards against discriminatory enforcement of ambiguous laws, and respects the foundational principle that only Congress - not the executive or the courts - is empowered to establish the bounds of proscribed conduct. Id. at 1212 (plurality opinion).

         In Johnson, the Supreme Court struck down the residual clause of the Armed Career Criminal Act ("ACCA") as void for vagueness. 135 S.Ct. at 2557. ACCA enhances the sentence of those convicted of possessing a firearm in violation of 18 U.S.C. § 922(g) if they have three or more prior convictions for a "serious drug offense" or for a "violent felony." It defines "violent felony" as any felony that:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another . . . .

18 U.S.C. § 924(e)(2)(B) (emphasis added). The italicized portion is the ACCA residual clause. Johnson, 135 S.Ct. at 2555-56.

         The Johnson Court explained that "[t]wo features of the [ACCA] residual clause conspire[d] to make it unconstitutionally vague." Id. at 2557. The clause left uncertainty about both (1) "how to estimate the risk posed by a crime," and (2) "how much risk it takes for a crime to qualify as a violent felony." Id. at 2557-58.

         The first problem arose because the residual clause "tie[d] the judicial assessment of risk to a judicially imagined 'ordinary case' of a crime, not to real-world facts or statutory elements," but "offer[ed] no reliable way" for judges to ascertain what the "ordinary case" involved. Id. Regarding the second problem, the Court clarified that it was "one thing to apply an imprecise 'serious potential risk' standard to real-world facts," but "quite another to apply it to a judge-imagined abstraction," as the ACCA residual clause required. Id. at 2558. The Court held that the combination of these two flaws rendered the ACCA residual clause unconstitutional: "Each of the uncertainties in the residual clause may be tolerable in isolation, but 'their sum makes a task for us which at best could be only guesswork.'" Id. at 2560 (quoting United States v. Evans, 333 U.S. 483, 495 (1948)).

         The Supreme Court reiterated this logic in Dimaya, when it held 18 U.S.C. § 16(b) unconstitutionally vague. 138 S.Ct. at 1215-16. That statute defines "crime of violence," a term incorporated into many criminal and immigration statutes, as:

(a) an offense that has as 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. Section 16(b) is similarly known as the "residual clause." Dimaya, 138 S.Ct. at 1212.

         In Dimaya, the Court held that a "straightforward application" of Johnson made clear that § 16(b), like the ACCA residual clause, was void for vagueness. Id. at 1213. In doing so, the Court carefully explained that the proper ordinary-case categorical analysis did not ask "whether 'the particular facts' underlying a conviction posed the substantial risk that § 16(b) demands," nor whether "the statutory elements of a crime require (or entail) the creation of such a risk in each case that the crime covers." Id. at 1211 (quoting Leocal, 543 U.S. at 7). Rather, a majority of the Court agreed that "§ 16(b) requires a court to ask whether the ordinary case of an offense poses the requisite risk." Id. (internal quotation marks omitted); see also id. at 1235 (Roberts, C.J., dissenting) (identifying ordinary-case categorical approach as the way "courts should assess whether a particular crime 'by its nature' involves a risk of the use of physical force").

         As a result, § 16(b) possessed "the same two features that conspired to make ACCA's residual clause unconstitutionally vague." Id. at 1216 (majority opinion) (alterations and internal quotation marks omitted) (quoting Johnson, 135 S.Ct. at 2557). As with the ACCA residual clause, § 16(b) required courts to "identify a crime's 'ordinary case' in order to measure the crime's risk." Id. at 1215. But the statute failed to provide any guidance on how to "divin[e] the conduct entailed in a crime's ordinary case." Id. "And § 16(b) also possesse[d] the second fatal feature of ACCA's residual clause: uncertainty about the level of risk that ma[de] a crime 'violent.'" Id. Thus, like the ACCA residual clause, the Court held that § 16(b) violated due process. Id. at 1223.

         C.

         With these precedents in mind, we turn to the question at hand: is the materially identical statute at issue here also unconstitutionally vague?

         Like the statutes examined in Johnson and Dimaya, § 924(c)(3)(B) requires a court to imagine the idealized ordinary case of a crime while providing no guidance on how to do so, rendering any judicial account of the ordinary case wholly speculative. Dimaya, 138 S.Ct. at 1213-14; Johnson, 135 S.Ct. at 2557-58. After conceiving of this judicial abstraction, a court must then assess its speculation using the same vague standard of "substantial risk" as § 16(b) required in Dimaya. 138 S.Ct. at 1214. This conjectural exercise suffers from the same two fundamental flaws that, in combination, rendered the statutory provisions in Johnson and Dimaya void for vagueness. Dimaya, 138 S.Ct. at 1213-16; Johnson, 137 S.Ct. at 2557-58.

         Section 924(c)(3)(B) is therefore unconstitutional. Three other circuits have reached this conclusion. United States v. Davis, 903 F.3d 483, 485-86 (5th Cir. 2018) (per curiam), cert. granted, 2019 WL 98544 (U.S. Jan. 4, 2019) (No. 18-431); United States v. Eshetu, 898 F.3d 36, 37 (D.C. Cir. 2018) (per curiam), petition for reh'g en banc filed, No. 15-3020 (Aug. 31, 2018); United States v. Salas, 889 F.3d 681, 684-86 (10th Cir. 2018), petition for cert. filed, No. 18-428 (U.S. Oct. 3, 2018).[3]

         To understand why, consider a situation where a defendant is charged with possessing a gun in conjunction with witness tampering. See 18 U.S.C. § 1512(b); Dimaya, 138 S.Ct. at 1232 (Gorsuch, J., concurring in part and concurring in the judgment). As the Supreme Court has explained, § 924(c) "requires the prosecution to make two showings": the commission of an underlying crime and the use of a firearm. Smith v. United States, 508 U.S. 223, 227-28 (1993); see also Rosemond v. United States, 572 U.S. 65, 75 (2014) ("§ 924(c) . . . punishes the temporal and relational conjunction of two separate acts, on the ground that together they pose an extreme risk of harm.").

         Thus, to evaluate whether witness tampering satisfies the "crime of violence" element of a § 924(c) violation, a court must assess whether the ordinary case of witness tampering, with or without a firearm, "involves a substantial risk [of] physical force." 18 U.S.C. § 924(c)(3)(B). And when "divining the conduct entailed in [the] crime's ordinary case," the court must utilize some as-yet-unspecified method - "Surveys? Experts? Google? Gut instinct?" Dimaya, 138 S.Ct. at 1215 (majority opinion) (citing Johnson, 135 S.Ct. at 2557). The statute provides no guidance for this "abstract inquiry." See Dimaya, 138 S.Ct. at 1215 (quoting Johnson, 135 S.Ct. at 2561). Instead, § 924(c)(3)(B) effectively requires judges to define the scope of criminal liability, and it directs them to do so using an unmoored, subjective abstraction that deprives the public of fair notice.

         Just as in Dimaya, a "straightforward application" of controlling precedent to the challenged statute requires us to strike it down. Dimaya, 138 S.Ct. at 1213. The Supreme Court has made clear that where a statute requires courts to assess "both an ordinary-case requirement and an ill-defined risk threshold," it is unconstitutional. Id. at 1223; see also Johnson, 135 S.Ct. at 2557-60. That principle controls here. Any conviction involving § 924(c)(3)(B) is subject to the same "guesswork," "intuition," "arbitrary enforcement," and lack of "fair notice" that plagued both § 16(b) and the ACCA residual clause. Dimaya, 138 S.Ct. at 1223 (quoting Johnson, 135 S.Ct. at 2557-59). Because this "produces more unpredictability and arbitrariness than the Due Process Clause tolerates," id. (quoting Johnson, 135 S.Ct. at 2558), we must conclude that § 924(c)(3)(B) is unconstitutionally vague.

         III.

         The United States concedes that if we adhere to the ordinary-case categorical approach applied by the Supreme Court in Leocal, Johnson, and Dimaya, we must invalidate § 924(c)(3)(B). The Government, however, urges us to jettison this established interpretation and adopt a new reading of the challenged statutory language that employs a conduct-specific approach to the crime of violence analysis. This conduct-specific approach would consider the facts of each individual case, rather than the statutory definition of the underlying offense.

         Before addressing the merits of the Government's claim, we must determine whether to allow it to raise an argument that it previously abandoned. Although the Government initially argued in the alternative that a conduct-specific interpretation of § 924(c)(3)(B) was tenable, Gov. Br. at 28-31, it later expressly disclaimed this reading of § 924(c)(3)(B). The Government did so by submitting to us a written statement that "the position of the United States [is] that the categorical approach is the proper interpretation of the statute, and it is wholly unaffected by Johnson." Gov. 28(j) Letter at 2 (Oct. 19, 2016). After the Supreme Court decided Dimaya and we ordered supplemental briefing, the Government again reversed course, deeming a conduct-specific reading of § 924(c)(3)(B) freshly controlling. Given these changing stances, Simms asserts that the Government has forfeited any argument for a conduct-specific approach.[4]

         The Government offers two reasons why we should excuse its voluntary withdrawal of a conduct-specific interpretation of § 924(c)(3)(B). First, it argues that Dimaya represented "an intervening change in the law recognizing an issue that was not previously available." United States v. Chittenden, 896 F.3d 633, 639 (4th Cir. 2018) (internal quotation marks omitted). At oral argument, the Government elaborated that the longstanding position of the United States that § 924(c)(3)(B) required an ordinary-case categorical approach came "more by way of assumption" than reason, and that Dimaya "caused a lot of searching in the Department [of Justice] to find the right answer." Oral Arg. at 1:27:41, 1:29:00.

         This claim does not hold water. Dimaya was not the first case to indicate that the ordinary-case categorical approach generated serious constitutional doubts. At the very least, the Government was on notice as to these vagueness concerns after Johnson was decided in 2015. Indeed, the Ninth Circuit held § 16(b) unconstitutionally vague four months later. See Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th Cir. 2015), aff'd sub nom. Sessions v. Dimaya, 138 S.Ct. 1204. But a full year thereafter, the Government asserted to us that "the categorical approach [was] the proper interpretation" of § 924(c)(3)(B) and that this conclusion was "wholly unaffected by Johnson." Gov. 28(j) Letter at 2. The United States has yet to offer a coherent justification for its shifts in position, and its invocation of Dimaya offers no answer.

         The Government next asserts that excusing its abandonment would not prejudice Simms, who has had a full opportunity to respond to the Government's claims. That is certainly enough to convince us that we can look past the Government's change of heart, e.g., United States v. Ramos-Cruz, 667 F.3d 487, 496 n.5 (4th Cir. 2012), but not necessarily that we should do so. As the Government is aware, we routinely exercise our discretion in favor of a strict reading of forfeiture. See, e.g., United States v. Brown, 742 Fed.Appx. 742, 745 n.3 (4th Cir. 2018) ("[W]e conclude that Brown waived the argument that 18 U.S.C. § 924(c)(3)(B) (2012) is unconstitutional by failing to raise it in his opening brief."); United States v. Khoa Dang Hoang, 737 Fed.Appx. 136, 138 n.* (4th Cir. 2018) (deeming forfeited defendant's challenge to validity of Miranda waiver); see also United States v. Cannon, 740 Fed.Appx. 785, 791 n.2 (4th Cir. 2018) (deeming forfeited, at Government's suggestion, defendant's undeveloped sentencing challenges); United States v. Ballard, 727 Fed.Appx. 757, 760 n.* (4th Cir. 2018) (same regarding defendant's statutory speedy trial claim).

         Nevertheless, in this case, we opt to proceed to the merits in view of the exceptional importance and recurring nature of the question presented. Particularly given the markedly effective presentation by the parties and the amici before the en banc court, we see no reason to defer adjudication of the Government's current argument.

         IV.

         The Government now contends that we must apply a different mode of analysis to § 924(c)(3)(B), a mode that the Supreme Court expressly rejected in both Dimaya and Johnson.

         Specifically, the Government insists that the best reading of the statute - which, recall, asks whether "an offense that is a felony . . . by its nature[] involves a substantial risk that physical force . . . may be used in the course of committing the offense" - directs a court to analyze an offender's specific conduct by diving into the facts before it instead of limiting the analysis to the offense's ordinary case. In support of this contention, the Government argues that "the Supreme Court has been very clear" that the categorical approach is "essentially a saving construction" designed only to avoid the risk of unfairness that comes with reviewing conduct that underlies long-past convictions. Oral Arg. at 1:19:05. Alternatively, the Government claims that even if a conduct-specific approach is not the best reading of § 924(c)(3)(B), we still must adopt it to avoid striking down the statute. Three of our sister circuits have embraced the Government's suggestion.[5]

         We cannot do so. The Supreme Court did not invent the categorical approach out of whole cloth, as the Government would have us believe. While some other statutes invoking categorical analysis have been less than clear, the text and structure of § 924(c)(3)(B) unambiguously require courts to analyze the attributes of an "offense that is a felony . . . by its nature" - that is, categorically. And the Government's comparisons to cases involving very different statutes, rather than bolstering its preference for a new mode of analysis, support adherence to the established ordinary-case categorical approach.

         A.

         As a preliminary matter, the Government presents a flawed historical premise. It claims that the categorical approach is nothing more than a "saving construction," Oral Arg. at 1:19:05, "purely [a] judge-made doctrine" that was "first endorsed" less than thirty years ago, Gov. Supp. Br. at 17 (internal quotation marks omitted). Further, the Government asserts, this doctrine is grounded entirely in external considerations far afield from congressional language or intent.

         This is simply not so. Although categorical analysis may be complicated, the rationale for it is simple and long-established: if Congress has conditioned a statutory penalty on commission of an offense generally - rather than on specific acts - courts must consider the crime as defined, rather than the offender's conduct. See, e.g., Shepard v. United States, 544 U.S. 13, 19 (2005) (emphasizing Congress's "language imposing the categorical approach" in ACCA); Leocal, 543 U.S. at 7 (highlighting Congress's usage of "offense . . . by its nature" in § 16(b)). Such analysis became more frequent in the mid-1980s as Congress added general terms like "violent felony," "crime of violence," and "aggravated felony" to the United States Code, but the underlying principle is far from novel. Indeed, it has been an important part of American jurisprudence for more than a century. See, e.g., U.S. ex rel. Guarino v. Uhl, 107 F.2d 399, 400 (2d Cir. 1939) (L. Hand, J.) (explaining that "deporting officials may not consider the particular conduct for which the alien has been convicted" in determining whether a crime involved moral turpitude meriting deportation (citing U.S. ex rel. Mylius v. Uhl, 210 F. 860, 863 (2d Cir. 1914))).

         Moreover, the Supreme Court has always rooted the categorical approach in the statutory language chosen by Congress and consistently defended this approach as a means of effectuating congressional intent. Thus, when analyzing ACCA four years after its passage, the Court looked first to "the language of" the statute, and only then to legislative history and practical concerns, to conclude that a categorical approach was "the only plausible interpretation of § 924(e)(2)(B)(ii)." Taylor v. United States, 495 U.S. 575, 600-02 (1990). Similarly, when defending application of the ordinary-case categorical approach as it relates to ACCA's residual clause in 2015, the Court again began with the statutory text before considering other arguments. Johnson, 135 S.Ct. at 2562.

         The Supreme Court's interpretation of ACCA in Taylor and Johnson was, of course, secondarily informed by considerations beyond the statutory text. But tellingly, the Court has deemed the text of § 16(b) - a statute far clearer than the ACCA residual clause and materially identical to the statute at issue here - so plain as to speak for itself. Thus, in 2004, when the Court first interpreted § 16(b) to require the ordinary-case categorical approach, it relied only on the text of the statute, and it did not invoke legislative history or practical concerns. Leocal, 543 U.S. at 7; accord Dimaya, 138 S.Ct. at 1204 (plurality opinion) (noting four-Justice plurality, Chief Justice, and Government all "accept[ed] that § 16(b), as long interpreted, demands a categorical approach"). The Government's attempt to rewrite this history is utterly unpersuasive.

         B.

         Setting aside the origins of the categorical approach, we have reviewed § 924(c)(3)(B) on a clean slate and still find no reasonable construction of its text that supports the Government's conduct-specific approach. The statutory structure, as well as Congress's use of materially identical language to implement an ordinary-case categorical approach in § 16(b), render our conclusion inescapable. Whatever a judge's personal feelings as to what does or does not constitute a crime of violence, we are bound to apply the definition that Congress has prescribed. And Congress could hardly have written a clearer call for the ordinary-case categorical approach than § 924(c)(3)(B).

         The text of a statute is a court's first and foremost guide to its meaning. See, e.g., Esquivel-Quintana v. Sessions, 137 S.Ct. 1562, 1568 (2017) (noting that when interpreting a statute, courts "begin, as always, with the text"). Here, the plain text of § 924(c)(3)(B) requires application of the ordinary-case categorical approach. The combination in § 924(c)(3)(B) of the phrase "offense that is a felony" with the qualifier "by its nature" makes Congress's intent apparent.

         As the Government itself admits, the definition of "nature" is "the basic or inherent features, character, or quality of something." Oxford Dictionary of English 1183 (3d ed. 2010). Thus, § 924(c)(3)(B) directs courts to consider only the basic or inherent features of "an offense that is a felony." 18 U.S.C. § 924(c)(3)(B); see also Dimaya, 138 S.Ct. at 1217-18 (plurality opinion) (explaining that phrase "by its nature" directs courts "to figure out what an offense normally . . . entails, not what happened to occur on one occasion"). Had Congress intended a conduct-specific analysis instead, "it presumably would have said so; other statutes, in other contexts, speak in just that way." Descamps v. United States, 570 U.S. 254, 267-68 (2013); see, e.g., 18 U.S.C. § 1031(b)(2) (imposing heightened penalties for fraud offenses that "involve[] a conscious or reckless risk of serious personal injury"); 18 U.S.C. § 2332b(a)(1)(B) (punishing certain "conduct" that "creates a substantial risk of serious bodily injury").

         Moreover, we cannot adopt a reading of § 924(c)(3)(B) that renders part of the statute superfluous over one that gives effect to its "every clause and word." United States v. Menasche, 348 U.S. 528, 538-39 (1955) (quoting Inhabitants of Montclair Twp. v. Ramsdell, 107 U.S. 147, 152 (1883)). This well-established rule against surplusage further cuts against the Government's conduct-specific reading, which would empty the phrase "by its nature" of meaning. Indeed, even under the Government's interpretation, giving "by its nature" meaning would shift the § 924(c)(3)(B) inquiry away from conduct-specific facts and back towards a subjective consideration of that conduct's "inherent features" - that is to say, another version of ordinary-case analysis.

         The Government does not even attempt to address this problem.[6] Instead, it simply quotes a dissent in Dimaya to contend that in the context of § 924(c)(3)(B), "the phrase 'by its nature' is reasonably understood to 'mean only that an offender who engages in risky conduct cannot benefit from the fortuitous fact that physical force was not actually used during his offense.'" Gov. Supp. Br. at 14 (quoting Dimaya, 138 S.Ct. at 1254 (Thomas, J., dissenting)). One of the dissenters here similarly insists that "by its nature" "broad[ens]" the scope of § 924(c)(3)(B), while another argues (seemingly to the contrary) that the phrase actually "limits the residual clause" by excluding conduct that risks force "merely incidentally or by happenstance."

         But the Dimaya Court did not embrace any of these readings of this text. And for good reason: each would still leave "by its nature" wholly superfluous. If we strike that phrase, § 924(c)(3)(B)'s remaining language would require a finding that an offense "involves a substantial risk that physical force . . . may be used in the course of committing the offense." 18 U.S.C. § 924(c)(3)(B) (emphasis added). This text read on its own would still encompass both actual uses of physical force and otherwise "risky" conduct in which force was not used. And the requirement that any risk be "substantial" would independently exclude "incidental" uses of force. In other words, under the Government's conduct-specific reinterpretation, § 924(c)(3)(B) would have the same meaning without the phrase "by its nature" as it would with this phrase. This would drain the phrase "by its nature" of any effect, violating a cardinal rule of statutory construction.

         The conclusion that "crime of violence" must be defined categorically is made even plainer when we consider the statutory context, as we must. See Davis v. Mich. Dep't of Treasury, 489 U.S. 803, 809 (1989) ("[W]ords of a statute must be read in their context and with a view to their place in the overall statutory scheme."). The Government concedes that § 924(c)(3)(A), which covers one half of the "crime of violence" definition in § 924(c), mandates a categorical approach. Gov. Supp. Br. at 4. It would stand to reason that § 924(c)(3)(B), the other half of this definition, also requires a categorical approach rather than analysis of "the facts of each defendant's conduct." Taylor, 495 U.S. at 601.

         This conclusion is confirmed by the Supreme Court's refusal to give statutory text variable meanings "depending on the presence or absence of constitutional concerns in each individual case," explaining that such a "novel interpretive approach . . . would render every statute a chameleon." Clark v. Martinez, 543 U.S. 371, 382 (2005). Under the longstanding interpretation of § 924(c)(3), the statute's single reference to an "offense that is a felony" has a single meaning: it refers to a crime as defined by statute. Accepting the Government's interpretation would require us instead to give this phrase two contradictory meanings, depending on whether the force clause or the residual clause is in play. Specifically, the Government would have us read "offense that is a felony" to refer to an offense as defined by statute in prosecutions under the force clause, but to case-specific conduct in prosecutions under the residual clause. We refuse to so distort the statutory text.

         Furthermore, § 924(c)(1)(A), which outlines the elements of a § 924(c) violation, expressly refers to "a crime of violence . . . that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device." This phrasing would make no sense under a conduct-specific definition of "crime of violence," as only statutes, not conduct-specific facts, can "provide[] for" an amount of punishment.[7]

         Finally, the Government would have us interpret the materially identical 34-word phrase in § 924(c)(3)(B) and § 16(b) in entirely different ways.[8] This argument flies in the face of the traditional rule that "a legislative body generally uses a particular word with a consistent meaning in a given context." Erlenbaugh v. United States, 409 U.S. 239, 243 (1972). Whatever force this interpretive presumption may have as to one "particular word," it must carry more as applied to the 34-word phrase replicated in § 924(c)(3)(B) and § 16(b). See supra n.8. The presumption has more force still because Congress initially added "crime of violence" to § 924(c) and created § 16(b) in the same legislative enactment.[9] See Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 570 (1995) ("[T]he normal rule of statutory construction" is that "identical words used in different parts of the same act are intended to have the same meaning." (internal quotation marks omitted)); Erlenbaugh, 409 U.S. at 244 (noting that presumption of consistent meaning "certainly makes the most sense when the statutes were enacted by the same legislative body at the same time"). Thus, it is unsurprising that the Government has been unable to cite even one case in which the Supreme Court or this court have interpreted two materially identical statutes differently, as it urges us to do with § 924(c)(3)(B) and § 16(b).

         In sum, our de novo application of ordinary textual analysis yields a mountain of "textual evidence" that § 924(c)(3)'s residual clause - "like ACCA's, except still more plainly" - "has no 'plausible' fact-based reading." Dimaya, 138 S.Ct. at 1218 (plurality opinion) (quoting Johnson, 135 S.Ct. at 2562); see also id. at 1235 (Roberts, C.J., dissenting) (explaining that the ordinary-case categorical approach outlined in Leocal "provides a model for how courts should assess whether a particular crime 'by its nature' involves a risk of the use of physical force" (quoting § 16(b))).[10]

         C.

         Resisting this conclusion, the Government contends that the phrases "offense," "felony," "by its nature," "involves," and "committing the offense" in § 924(c)(3)(B) "compel" a conduct-specific approach. Gov. Supp. Br. at 10.

         Each of these terms can be susceptible to a conduct-specific analysis in isolation. See Nijhawan v. Holder, 557 U.S. 29, 33-34 (2009) (construing statute containing the words "offense" and "felony"); Hayes, 555 U.S. at 420-29 (construing statute containing the word "offense"); Taylor, 495 U.S. at 600-01 (construing statute containing the word "involves"); United States v. Price, 777 F.3d 700, 708-09 (4th Cir. 2015) (construing statute containing the terms "by its nature" and "involves"). But that hardly establishes that these five terms are susceptible to such a reading when appearing together in a single short statute. Rather, each of the cases on which the Government relies involves only fragments of the language in § 924(c)(3). Just as importantly, in none of these cases did the court actually rely on these fragments in reaching its holding. In fact, the reasoning that underlies each of the Government's cases buttresses our conclusion that the text of § 924(c)(3)(B) requires an ordinary-case categorical approach.

         Consider Nijhawan and Hayes. In both opinions, the Supreme Court interpreted statutes that paired a reference to "offense" with detailed qualifiers far too specific to refer to generic crimes. Nijhawan concerned an immigration statute that included only offenses "involv[ing] fraud or deceit in which the loss to the victim or victims exceed[ed] $10, 000." 8 U.S.C. § 1101(a)(43)(M)(i). In Hayes, the qualifier was even more specific: the relevant criminal statute only covered offenses "committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim." 18 U.S.C § 921(a)(33)(A)(ii).

         Faced with these precise qualifiers, the Supreme Court concluded that Congress must have intended a conduct-specific approach for these statutes to have any force. See Nijhawan, 557 U.S. at 37-38 (holding that "to have any meaning at all," qualifier "must refer to the particular circumstances in which an offender committed the crime"); Hayes, 555 U.S. at 427 (explaining that categorical reading of qualifier would render statute "a dead letter in some two-thirds of the States from the very moment of its enactment" (internal quotation marks omitted)). The specificity of each statute - not any talismanic use of "offense" or "involves" - was the crux of both rulings.

         The "substantial risk of physical force" proviso in § 924(c)(3)(B) is a far cry from the specific qualifiers in Nijhawan and Hayes. Rather, the proviso in § 924(c)(3)(B) is materially identical to that in § 16(b), and it is similar to the force requirement in statutes that employ the elements-based categorical approach, like § 924(c)(3)(A) and § 16(a). Nijhawan and Hayes thus highlight the relative "absence of terms alluding to a crime's circumstances" in § 924(c)(3)(B) beyond those also present in § 16(b). Dimaya, 138 S.Ct. at 1218 (plurality opinion); see also id. at 1217 ("Simple references to a 'conviction,' 'felony,' or 'offense,' we have stated, are 'read naturally' to denote the 'crime as generally committed.'" (quoting Nijhawan, 557 U.S. at 34)). The differences between these statutes and § 924(c)(3)(B) reinforce rather than defeat a categorical reading here.

         Moreover, despite seeking to rely on Nijhawan, the Government overlooks one of Nijhawan's key teachings. For there, the Court expressly recognized that where Congress "uses similar statutory language and similar statutory structure in two adjoining provisions, it normally intends similar interpretations." Nijhawan, 557 U.S. at 39. Here, Congress did not just use "similar" language in the "two adjoining provisions" of § 924(c)(3)(A) and § 924(c)(3)(B): it tied both definitions to the same use of the introductory phrase "offense that is a felony." As we have already explained, the Government's reading would give that phrase a conduct-specific interpretation under one provision and a categorical interpretation under the adjoining provision.

         As to Taylor, the Government's reliance is inexplicable. It cites that case alone for the proposition that "the Supreme Court has previously relied on the absence of the word 'involves' as indicating that a categorical approach is required." Gov. Supp. Br. at 13 (citing Taylor, 495 U.S. at 600). But Taylor did not rely on the absence of the word "involves" to require use of the categorical approach. The Taylor Court simply recognized that the ACCA force clause defined a "violent felony" as one that "'has as an element' - not any crime that, in a particular case, involves - the use or threat of force." 495 U.S. at 600 (quoting § 924(e)(2)(B)(i)). The Government's contrary argument is especially unconvincing given that the Supreme Court has held that the ACCA residual clause and § 16(b), both of which use the word "involves," mandate the ordinary-case categorical approach. E.g., Johnson, 135 S.Ct. at 2561-62; Leocal, 543 U.S. at 7.

         The Government's reliance on Taylor, like its reliance on Nijhawan, also ignores a critical element of the Supreme Court's analysis. The Taylor Court reasoned that the term "burglary" as used in ACCA "most likely refer[red] to the elements of the statute of conviction, not to the facts of each defendant's conduct," in part because of its proximity to the ACCA force clause. 495 U.S. at 600-01. In this case, the proximity of § 924(c)(3)(B) to the force clause in § 924(c)(3)(A) warrants a similar inference. Thus, Taylor offers no more support to the Government's novel argument than Nijhawan or Hayes.

         Finally, the Government emphasizes that we have applied a conduct-specific analysis to a provision of the Sex Offender Registration and Notification Act ("SORNA") that uses the phrase "by its nature." Price, 777 F.3d at 708-09. But in fact, each step of our ...


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