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In Wake of Supreme Court’s Vagueness Rulings, Second Circuit Vacates Section 924(c) Residual Clause Conviction

In United States v. Barrett, No. 14-2541 (2d Cir. Aug. 30, 2019) (Winter, Raggi, Droney), the Second Circuit vacated a defendant’s conviction for using a firearm in connection with a “crime of violence” under 18 U.S.C. § 924(c) in the wake of the Supreme Court’s recent decision striking down the residual clause of that statute in United States v. Davis, 139 S. Ct. 2319 (2019).  To understand the Second Circuit’s decision, a brief discussion of Section 924(c) and Davis is warranted.  Section 924(c) raises some of the same questions presented by litigation under the Armed Career Criminal Act (“ACCA”), which has been the subject of repeated litigation in the Supreme Court and the Circuit Courts of Appeal in recent years.

Section 924(c) allows for the imposition of enhanced sentences upon defendants who use a firearm in the commission of a “crime of violence.”  The statute defines a “crime of violence” to mean a felony that either “has as an element the use, attempted use, or threatened use of physical force against the person or property of another,” or “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).  The former definition is known as the “elements clause,” and the latter is known as the “residual clause.”  See Davis, 139 S. Ct. at 2324. 

Courts interpreting the residual clause had used two different modes of analysis to determine whether or not a given crime fit the bill.  One approach—the “categorical approach”—required judges “to disregard how the defendant actually committed his crime. Instead, they were required to imagine the idealized ordinary case of the defendant’s crime and then guess whether a serious potential risk of physical injury to another would attend its commission.”  Id. at 2326 (quotation marks omitted).  Another approach—the “case specific” approach—“look[s] to the defendant’s actual conduct’ in the predicate offense.”  Id. at 2327 (quotation marks omitted).

Earlier this year, in Davis, the Supreme Court struck down Section 924(c)’s residual clause on vagueness grounds.  In a 5-4 decision, the Court relied on its prior decisions striking down substantially similar residual clauses in the Armed Career Criminal Act and 18 U.S.C. § 16 on the grounds that the categorical approach utilized by courts interpreting those provisions yielded arbitrary, unpredictable outcomes and failed to give fair warning to the lay public as to what offenses would and would not be deemed “crime[s] of violence” under Section 924(c)’s residual clause.  See Davis, 139 S. Ct. at 2325-27.  The Davis Court also rejected the “case specific” approach to interpreting Section 924(c), determining that this analytical method—though not void for vagueness—was not consistent with the statute’s text, context, and history.  See id. at 2327-33.  Given the rejection of the “residual clause” in other contexts, it was not a surprise to see the Court reject it in DavisSee Johnson v. United States, 135 S. Ct. 2551 (2015) (ACCA residual clause unconstitutional); see also Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (residual clause in Immigration and Nationality Act unconstitutional).

The Second Circuit’s recent Barrett decision was a direct consequence of Davis.  In 2018, the Second Circuit had affirmed Barrett’s Section 924(c) crime of violence conviction for using a firearm in committing Hobbs Act robbery conspiracy.  In so doing, the Second Circuit relying on both the case-specific approach—i.e. the conduct at issue was in fact violent— and a “hybrid categorical” interpretation of the elements clause which depended on both the elements clause and the residual clause.  See United States v. Barrett, 903 F.3d 166, 176-77 (2d Cir. 2018). 

When we discussed the Second Circuit’s initial decision in Barrett in 2018, we wrote that the decision “seem[ed] likely to be the subject of further review, perhaps by the Supreme Court” given the novelty of the issues and the Court’s holding that Johnson and Dimaya were distinguishable.[1]  We also observed that the original panel decision in Barrett created a conflict with post-Dimaya decisions in other Circuits.  The Supreme Court concluded that the decision could not stand in light of Davis, and it granted cert, vacated the panel decision, and remanded the case for further consideration in light of Barrett.

Though the hybrid analysis used in the original panel decision had not been explicitly rejected by the Davis Court, the Second Circuit determined that it could “no longer rely to any extent on” the residual clause of Section 924(c), as it “is now ‘no law at all,’” having been struck down as unconstitutionally vague by the Supreme Court.  Barrett, No. 14-2641 at Slip Op. 8 (quoting Davis, 139 S. Ct. at 2323).  As a result, the Second Circuit vacated Barrett’s Section 924(c) conviction, affirmed his other convictions, and remanded for resentencing.  We can hardly fault the original panel decision for its interpretation of the statute.  The categorical approach has been frequently criticized by courts and commentators, and given the many 5-4 decisions in this area, it was understandable that the original panel was hesitant to declare the statute unconstitutional.

As the law in this area becomes increasingly baroque, we continue to wonder whether the better course, both for defendants and the courts, is to amend these harsh sentencing statutes in order to provide more judicial discretion in order to make sure that the punishment fits the crime.  Section 403 of the First Step Act will help to mitigate the harshness by preventing the stacking of counts under 924(c) in a single indictment—prior to the First Step Act’s passage, two 924(c) counts in a single case could lead to a 30-year mandatory minimum sentence.