905 F.3d 1231 (11th Cir. 2018), 17-10172, Ovalles v. United States

Docket Nº:17-10172
Citation:905 F.3d 1231, 27 Fla.L.Weekly Fed. C 1406
Opinion Judge:NEWSOM, Circuit Judge
Party Name:Irma OVALLES, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
Attorney:W. Matthew Dodge, Stephanie A. Kearns, Federal Defender Program, Inc., Atlanta, GA, for Petitioner - Appellant. Kim S. Dammers, John Andrew Horn, Jane Elizabeth McBath, Erin Sanders, U.S. Attorney Service - Northern District of Georgia, U.S. Attorney’s Office, Atlanta, GA, for Respondent - Appell...
Judge Panel:Before ED CARNES, Chief Judge, TJOFLAT, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, and HULL, Circuit Judges. WILLIAM PRYOR, Circuit Judge, joined by ED CARNES, Chief Judge, and TJOFLAT, NEWSOM, and BRANCH, Circuit Judges, concurring: MARTIN, Circuit Judg...
Case Date:October 04, 2018
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1231

905 F.3d 1231 (11th Cir. 2018)

27 Fla.L.Weekly Fed. C 1406

Irma OVALLES, Petitioner-Appellant,

v.

UNITED STATES of America, Respondent-Appellee.

No. 17-10172

United States Court of Appeals, Eleventh Circuit

October 4, 2018

Page 1232

W. Matthew Dodge, Stephanie A. Kearns, Federal Defender Program, Inc., Atlanta, GA, for Petitioner - Appellant.

Kim S. Dammers, John Andrew Horn, Jane Elizabeth McBath, Erin Sanders, U.S. Attorney Service - Northern District of Georgia, U.S. Attorney’s Office, Atlanta, GA, for Respondent - Appellee.

Jonathan R. Ference-Burke, Ropes & Gray, LLP, Washington, DC, Aaron Katz, Erin Macgowan, Ropes & Gray, LLP, Boston, MA, for Amici Curiae FAMILIES AGAINST MANDATORY MINIMUMS, NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS.

Appeal from the United States District Court for the Northern District of Georgia, D.C. Docket Nos. 1:16-cv-02392-TWT; 1:10-cr-00305-TWT-RVG-1

Before ED CARNES, Chief Judge, TJOFLAT, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, and HULL,[*] Circuit Judges.

OPINION

NEWSOM, Circuit Judge

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The question before us is whether one of the key provisions of an important federal criminal statute, 18 U.S.C. § 924(c), is unconstitutionally vague. As relevant to our purposes, § 924(c) makes it a federal offense— punishable by a term of imprisonment ranging from five years to life— for any person to use, carry, or possess a firearm in connection with a "crime of violence." 18 U.S.C. § 924(c)(1)(A). The provision challenged here— § 924(c)(3)’s "residual clause"— defines the term "crime of violence" to mean 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." Id. § 924(c)(3)(B).

This case is in some respects a successor to Johnson v. United States, __ U.S. __, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), and Sessions v. Dimaya, __ U.S. __, 138 S.Ct. 1204, 200 L.Ed.2d 549 (2018), in which the Supreme Court invalidated similarly-worded residual clauses on vagueness grounds. In the wake of those decisions, all here seem to agree that if § 924(c)(3)’s residual clause is interpreted to require determination of the crime-of-violence issue using what (in court-speak) has come to be called the "categorical approach," the clause is doomed. As the Supreme Court has explained and applied it, this categorical approach— which the provisions at issue in both Johnson and Dimaya were deemed to embody— does not permit consideration of a defendant’s specific conduct or how she "might have committed [her crime] on a particular occasion," but rather focuses exclusively on "how the law defines the offense" as a formal matter and whether, in the abstract, "the kind of conduct that the crime involves in the ordinary case" meets the statutory standard. Johnson, 135 S.Ct. at 2557 (internal quotation marks and citation omitted). In both Johnson and Dimaya, the Court concluded that application of a standard that requires a reviewing court "to ‘imagine’ an ‘idealized ordinary case of the crime’ " rendered the challenged clauses impermissibly vague. Dimaya, 138 S.Ct. at 1214 (quoting Johnson, 135 S.Ct. at 2557-58).

On the flip side, Johnson and Dimaya also make clear— and it is common ground here— that if § 924(c)(3)’s residual clause is instead interpreted to incorporate what we’ll call a "conduct-based approach" to the crime-of-violence determination, then the provision is not unconstitutionally vague. As its name suggests, the conduct-based approach, in stark contrast to the categorical, focuses not on formal legal definitions and hypothetical "ordinary case[s]," but rather on the real-world facts of the defendant’s offense— i.e., how the defendant actually went about committing the crime in question. And as the Supreme

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Court emphasized in Johnson — and then reiterated in Dimaya — there is no reason to "doubt the constitutionality of laws that call for the application of a qualitative standard such as ‘substantial risk’ to real-world conduct." Johnson, 135 S.Ct. at 2561 (quoted in Dimaya, 138 S.Ct. at 1214).

The obvious (and decisive) question, then: Which is it here— categorical or conduct-based? Because we find ourselves at this fork in the interpretive road— the categorical approach imperiling § 924(c)(3)’s residual clause, a conduct-based reading saving it— we invoke the canon of "constitutional doubt." Pursuant to that "elementary rule," the Supreme Court has long held, "every reasonable construction must be resorted to in order to save a statute from unconstitutionality." Hooper v. California, 155 U.S. 648, 657, 15 S.Ct. 207, 39 L.Ed. 297 (1895). The pivotal issue, therefore, is not whether § 924(c)(3)’s residual clause is necessarily, or even best, read to incorporate a conduct-based interpretation— but simply whether it can "reasonabl[y]," see id., "plausibl[y]," Clark v. Martinez, 543 U.S. 371, 381, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005), or "fairly possibl[y]," I.N.S. v. St. Cyr, 533 U.S. 289, 300, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), be so understood. Joining the Second Circuit, which recently came to the same conclusion, see United States v. Barrett, 903 F.3d 151 (2d Cir. 2018), we find that § 924(c)(3)(B) can be read to embody the conduct-based approach— and therefore, under the constitutional-doubt canon, that it must be.

Accordingly, we hold that § 924(c)(3)(B) prescribes a conduct-based approach, pursuant to which the crime-of-violence determination should be made by reference to the actual facts and circumstances underlying a defendant’s offense. To the extent that our earlier decision in United States v. McGuire, 706 F.3d 1333 (11th Cir. 2013), holds otherwise, it is overruled.

I

A

Under 18 U.S.C. § 924(c), "any person who, during and in relation to any crime of violence ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm" is guilty of a federal offense and subject to a prison term ranging between five years and life. 18 U.S.C. § 924(c)(1)(A). Section 924(c) defines the term "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.

Id. § 924(c)(3). For ease of reference— and as a way of facilitating comparisons with other similar statutes— we’ll call Subsection (3)(A) the "elements clause" and Subsection (3)(B) the "residual clause."1

Importantly here, this Court held in United States v. McGuire that the question whether a predicate offense qualifies as a "crime of violence" under either subsection is one that a court "must answer ‘categorically’— that is, by reference to the elements of the offense, and not the actual facts of [the defendant’s] conduct." 706 F.3d 1333, 1336 (11th Cir. 2013) (citation omitted).

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B

In 2010, Irma Ovalles was charged by information with six robbery- and carjacking-related offenses, all of which arose out of what can only be described as a three-day crime binge. As particularly relevant here, Ovalles was charged with (1) attempted carjacking in violation of 18 U.S.C. § 2119 and (2) using and carrying a firearm during a "crime of violence"— the attempted carjacking— in violation of 18 U.S.C. § 924(c)(1)(A). Ovalles entered into a written plea agreement in which she admitted that "she [was] in fact guilty" on all six counts. At her plea hearing, the government outlined the elements of each crime, and Ovalles explained that she understood what the government would have to prove should she opt to go to trial.

The government then made a comprehensive factual proffer detailing Ovalles’s involvement in the crimes. In general, the proffer summarized the evidence demonstrating that Ovalles and her co-conspirators (1) robbed a grocery store while armed with baseball bats, then (2) still wielding the bats, carjacked a Dodge Ram, then (3) carjacked a Toyota 4-Runner, pistol-whipping its owner, then (4) attempted to carjack a Chevy Venture— more on this one below— and finally (5) carjacked a Ford F-150 at gunpoint. More specifically, concerning the attempted carjacking of the Chevy Venture— during which one of Ovalles’s accomplices fired an AK-47, and which therefore serves as the predicate offense for Ovalles’s § 924(c) conviction— the government’s proffer explained as follows: They see a family getting out of a Chevy Venture in Clayton County, Georgia, and as the family is getting out of their car, these two defendants along with their co-conspirators go up to the family and demand the keys to the car and demand the car. Now, they have a baseball bat and guns with them. There’s a juvenile, a 13-year-old female, who is part of that family group of victims. They hit that juvenile in the mouth with a baseball bat. The damage to her I am sure will be addressed at sentencing. It was not— she did not go to the hospital. Let me say that.

They are demanding the keys. Somebody comes out of the apartment complex where this is happening and that person has a gun. He then confronts the assailants .... They flee, not taking the Chevy Venture, which is why it is an attempted carjacking.

The government would show that the Chevy Venture traveled in interstate commerce, that it was not made in the State of Georgia. The government would prove it was these defendants not only through their confessions as to this event, also through the victims’ testimony. They do I.D. the defendants in this...

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