What is a Crime of Violence Under 18 USC Section 924(c)? U.S. v. Davis, United States Supreme Court, Decided June 24, 2019
What is a crime of violence?
How a “crime of violence” is defined matters – whether you are being prosecuted in state court or federal court, if your alleged offense is defined as a crime of violence, it can substantially increase your sentence if you are convicted, it can affect your placement and inmate status, and it can affect whether and when you are eligible for early release.
In U.S. v. Davis, the US Supreme Court found that the “residual clause” of 18 USC Section 924(c), which provides additional penalties for a person who uses, carries, or possesses a firearm in connection with a crime of violence, must be interpreted using the “categorical approach,” is unconstitutionally vague, and cannot be enforced unless the legislature rewrites the statute for clarity. The Court’s holding does not affect the “elements clause” of 924(c).
What is a Crime of Violence Under 18 USC Section 924(c)?
What is a crime of violence? First, let’s look at the provisions of 824(c) that the Supreme Court found unconstitutional…
What is 18 USC Section 924(c)?
18 USC Section 924(c) provides for mandatory minimum penalties when a person commits a crime of violence (or a drug trafficking offense):
Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime—
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.
A person convicted under 924(c) cannot be placed on probation and the additional sentence must be consecutive to any other sentence received (the additional sentence cannot be served concurrently, or at the same time). The mandatory minimums range from five years to life in prison:
- Five years for use or possession of a firearm during a crime of violence;
- Seven years if the firearm is brandished;
- Ten years if the firearm is discharged;
- Ten years if it is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon;
- 30 years if it involves a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon;
- 25 years if it is a second conviction under 824(c); or
- A life sentence if it is a second conviction and if the firearm involved is a machinegun or a destructive device or is equipped with a firearm silencer or firearm muffler.
How Does 18 USC Section 924(c) Define a Crime of Violence?
A crime of violence is 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 (the “elements clause”), 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 (the “residual clause”).
18 USC Section 924(c)’s Definition of Crime of Violence is Unconstitutionally Vague
The Court found that 18 USC Section 924(c)’s definition of crime of violence is unconstitutionally vague, meaning that it is not sufficiently defined to put an average person on notice that they are violating the law:
In our republic, a speculative possibility that a man’s conduct violated the law should never be enough to justify taking his liberty.
The Courts have used two methods to interpret similar statutes – the “categorical approach” and the “case-specific method.”
The case-specific method looks at what actually happened in a defendant’s case. Using this analysis, Section 924(c) may be constitutional – but – the Court has consistently held in prior cases that the legislature intended a categorical approach and therefore identical statutes defining crimes of violence must be interpreted using the categorical approach:
Following the categorical approach, judges had 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.
It’s this “guessing” as to whether a “serious potential risk of physical injury to another” could happen that makes the statute unconstitutionally vague. For example, in In Johnson v. United States, the US Supreme Court held that the Armed Career Criminal Act (ACCA)’s definition of a “violent felony” was also unconstitutionally vague.
Then, in Sessions v. Dimaya, the Supreme Court held that the residual clause of 18 U. S. C. §16, which is nearly identical to 18 USC Section 924(c)’s definition of crime of violence, is also unconstitutionally vague because it requires courts “to picture the kind of conduct that the crime involves in the ordinary case, and to judge whether that abstraction presents some not-well-specified-yet-sufficiently-large degree of risk.”
In Davis, the Court finds that Section 924(c), like the residual clauses of the ACCA and Section 16, is unconstitutional because “criminal punishment can’t be made to depend on a judge’s estimation of the degree of risk posed by a crime’s imagined “ordinary case.”
The crime must be sufficiently defined that an ordinary person would know they are violating the law…
How Can Congress Fix the Statutory Definitions of Crime of Violence?
The Supreme Court offers some suggestions for how Congress can fix Section 924 and the other definitions of crime of violence in federal statutes. First, they could amend the statute to require a case-specific analysis:
Congress always remains free to adopt a case-specific approach to defining crimes of violence for purposes of §924(c)(3)(B) going forward. As Mr. Davis and Mr. Glover point out, one easy way of achieving that goal would be to amend the statute so it covers any felony that, “based on the facts underlying the offense, involved a substantial risk” that physical force against the person or property of another would be used in the course of committing the offense.
Or they could continue using the categorical approach by specifying which crimes qualify for enhancement under Section 924(c):
Congress might choose to retain the categorical approach but avoid vagueness in other ways, such as by defining crimes of violence to include certain enumerated offenses or offenses that carry certain minimum penalties.
Unless Congress takes some action to amend the language of the residual clauses of the ACCA, Section 16, and Section 924(c), however, the Court is clear that prosecutors can no longer increase defendants’ sentences under the current vague definitions of crime of violence.
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