This week, the Fourth Circuit held in United States v. Simms, No. 15-4640 (4th Cir. 2019) (en banc) that § 924(c)(3)’s residual clause is unconstitutionally vague and therefore that conspiracy to commit Hobbs Act robbery is not a crime of violence. The decision deepens the Circuit split on this issue, which the Supreme Court will soon address in Davis.
Notably, the en banc majority in Simms declined to apply the constitutional avoidance canon to adopt a conduct-specific reading of § 924(c)(3)(B). The avoidance canon has “no application,” the Court stated, where “there is an absence of more than one plausible construction” of the statute. Slip op. at 41 (quotation marks omitted). As the Court explained elsewhere, the government’s favored reading of § 924(c)(3)(B) is implausible because its text and structure “unambiguously require courts to analyze the attributes of an ‘offense that is a felony . . . by its nature’ — that is, categorically.” Id. at 18 (quoting 18 U.S.C. § 924(c)(3)).
The Circuit split is now 4-3. Four Circuits have held that § 924(c)(3)(B) is unconstitutional in light of Dimaya. See Simms, No. 15-4640; United States v. Davis, 903 F.3d 483 (5th Cir. 2018); United States v. Eshetu, 898 F.3d 36 (D.C. Cir. 2018); United States v. Salas, 889 F.3d 681 (10th Cir. 2018). Three Circuits have upheld the residual clause. See United States v. Douglas, 907 F.3d 1 (1st Cir. 2018); United States v. Ovales, 905 F.3d 1231, 2018 WL 4830079 (11th Cir. Oct. 4, 2018); United States v. Barrett, 903 F.3d 166, 2018 WL 4288566 (2d Cir. Sept. 10, 2018).