Argued: September 26, 2018
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)
Dhamian Blue, BLUE LLP, Raleigh, North Carolina, for
Phillip Anthony Rubin, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.
B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Asheville, North Carolina, for Amici Curiae.
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.
GREGORY, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, KING,
DUNCAN, AGEE, KEENAN, WYNN, DIAZ, FLOYD, THACKER, HARRIS,
RICHARDSON, and QUATTLEBAUM, Circuit Judges.
GRIBBON MOTZ, CIRCUIT JUDGE.
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."
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.
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,
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.
appealed, again contending that his conviction under Count II
could not stand because § 924(c)(3)(B) was
unconstitutional. 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.
determine whether the definition of "crime of
violence" in § 924(c)(3)(B) satisfies the
requirements of due process.
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.
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
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
(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
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
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.
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
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).
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.
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
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
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.
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.
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
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
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
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.
these precedents in mind, we turn to the question at hand: is
the materially identical statute at issue here also
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.
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).
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.").
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.
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.
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.
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.
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.
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.
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).
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.
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
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
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.
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.
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.
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.
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.
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).
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
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").
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
Government does not even attempt to address this
problem. 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."
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
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.
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.
§ 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
the Government would have us interpret the materially
identical 34-word phrase in § 924(c)(3)(B) and §
16(b) in entirely different ways. 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. 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).
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
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.
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.
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
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.
"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
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
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.
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
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 ...