United States v. Simms, 15-4640

Decision Date24 January 2019
Docket NumberNo. 15-4640,15-4640
Parties UNITED STATES of America, Plaintiff-Appellee, v. Joseph Decore SIMMS, Defendant-Appellant. Fourth Circuit Federal Defender Offices, Amicus Supporting Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

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.

Reversed and remanded by published opinion. Judge Motz wrote the opinion, in which Chief Judge Gregory and Judges King, Wynn, Diaz, Floyd, Thacker, and Harris joined. Judge Wynn wrote a concurring opinion, in which Judge Harris joined. Judge Wilkinson wrote a dissenting opinion. Judge Niemeyer wrote a dissenting opinion, in which Judges Wilkinson, Duncan, Agee, Keenan, and Quattlebaum joined. Judge Richardson wrote a dissenting opinion, in which Judge Quattlebaum joined.

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 , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (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 , ––– U.S. ––––, 138 S.Ct. 1204, 1223, 200 L.Ed.2d 549 (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, 125 S.Ct. 377, 160 L.Ed.2d 271 (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, 125 S.Ct. 377 (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...

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