Yesterday, a divided Eleventh Circuit issued a lengthy 153-page en banc decision in Ovalles v. United States, No. 17-10172 (11th Cir. Oct. 4, 2018) (en banc), holding that the residual clause of 18 U.S.C. § 924(c)(3)(B) is not unconstitutionally vague and interpreting § 924(c) as requiring a “conduct-based” approach to the crime of violence determination. Eight judges joined the majority over the dissent of four judges.
Section 924(c)(1)(A) makes it a federal defense for any person to use, carry, or possess a firearm in connection with a “crime of violence.” Ovalles addressed the constitutionality of the residual clause in § 924(c)(3)(B), which defines “crime of violence” as a felony “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.” Although the Supreme Court had previously invalidated similarly worded residual clauses as unconstitutionally vague in Johnson v. United States, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2014), the Ovalles majority held that § 924(c)’s residual clause is not unconstitutionally vague and interpreted § 924(c) as requiring a “conduct-based” approach to the crime of violence determination. The majority summed up its holdings as follows:
- The question whether a predicate offense constitutes a “crime of violence” within the meaning of 18 U.S.C. § 924(c)(3)(B) should be determined using a conduct-based approach that accounts for the actual, real-world facts of the crime’s commission, rather than a categorical approach.
- To the extent that our decision in United States v. McGuire, 706 F.3d 1333 (11th Cir. 2013), required use of the categorical approach in making the crime-of-violence determination under § 924(c)(3)(B), it is overruled.
- As interpreted to embody a conduct-based approach, § 924(c)(3)(B) is not unconstitutionally vague.
- In light of the particular circumstances of its commission, all of which Ovalles has expressly admitted, her attempted-carjacking offense was a “crime of violence” within the meaning of § 924(c)(3)(B).
Ovalles resulted in two separate dissenting opinions, one by Circuit Judge Martin, and another by Circuit Judge Jill Pryor, joined by Wilson, Martin, and Jordan, Circuit Judges. Judge Martin’s dissent provides a comprehensive “review of the development of th[e] [Eleventh] Circuit’s sentencing jurisprudence in recent years,” revealing “a body of law that has relentlessly limited the ability of the incarcerated to have their sentences reviewed.”
Several United States Courts of Appeal have held that § 924(c)(3)(B)’s residual clause is unconstitutionally vague. See United States v. Davis, No. 16-10330, 2018 WL 4268432, at *3 (5th Cir. Sept. 7, 2018); United States v. Eshetu, 898 F.3d 36, 37–38 (D.C. Cir. 2018); United States v. Salas, 889 F.3d 681, 686 (10th Cir. 2018); United States v. Cardena, 842 F.3d 959 (7th Cir. 2015). Besides the Eleventh, only the Second Circuit has held § 924(c)(3)(B) is not unconstitutionally vague after Dimaya. See United States v. Barrett, No. 14-2651-cr, 2018 WL 4288566, at *9–10 (2d Cir. Sept. 10, 2018). Before Dimaya, other Courts held that Johnson II did not invalidate § 924(c)’s residual clause. See United States v. Taylor, 814 F.3d 340, 379 (6th Cir. 2016); but see Harper v. United States, No. 18-1202 (6th Cir. June 18, 2018) (Order) (granting certificate of appealability because “reasonable jurists could debate whether the Supreme Court’s decision in Dimaya casts doubt on this court’s decision in Taylor”).
The Training Division provides sentencing resources to help you argue for the best possible sentence for your client, including a 4-part webinar series addressing the implications of Johnson II and Dimaya.