The Supreme Court held in United States v. Davis that the so-called “residual clause” of 18 U.S.C. 924(c)(3)(B) is void for vagueness. This means that the only way a crime can qualify as a “crime of violence” for purposes of Section 924(c) is under the “elements” (or “force”) clause of 18 U.S.C. 924(c)(A). That clause defines a “crime of violence” to mean “an offense that is a felony” and “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”
So what happens now? Here’s a quick overview:
- Davis means that the Second Circuit’s decision in United States v. Barrett, 903 F.3d 166 (2d Cir. 2018), which upheld the constitutionality of the residual clause, is no longer good law. And more specifically, the Supreme Court is likely to grant the pending petition for certiorari in Barrett, vacate that decision in light of Davis, and remand to the Second Circuit for reconsideration in light of Davis.
- Accordingly, if you have a pending 2255 petition involving a 924(c) conviction in which the underlying offense arguably no longer qualifies as a “crime of violence” under the force clause (especially one involving a conspiracy as the predicate offense), you may wish to ask for a stay until Barrett is finally resolved. But if there is some urgency (e.g., if the client would be eligible for immediate or imminent release and you have a sympathetic judge), you may wish to move forward right away by arguing that Davis abrogates Barrett and that your predicate offense no longer qualifies as a “crime of violence” under the elements clause.
- One of the most common situations is where the predicate offense is conspiracy to commit Hobbs Act robbery. The government conceded, at least before Davis, that this offense does not qualify as a “crime of violence” under the force clause. United States v. Douglas, 907 F.3d 1, 6 (1st Cir. 2018) (“The government explicitly ‘does not adopt the district court’s holding that conspiracy to commit Hobbs Act robbery constitutes a crime of violence under the force clause…. [T]he Department of Justice’s position is that a conspiracy offense does not have ‘as an element the use, attempted use, or threatened use of physical force against the person or property of another.’”). So we think we have a very strong argument that Hobbs Act conspiracy — as a mere agreement — does not have “as an element” the requisite use, attempted use, or threatened use of force. Other conspiracies also likely do not qualify.
- What about substantive (completed) Hobbs Act robbery? Unfortunately, if your predicate offense is a substantive Hobbs Act robbery, Davis seems unlikely to help you. The Second Circuit had already held in United States v. Hill that substantive Hobbs Act robbery qualifies as a “crime of violence” under the “elements” or “force” clause. Davis does not upset that conclusion. Then again, the Supreme Court has not spoken directly to the question, so you may wish to preserve it for a possible cert. petition (all of which have thus far been denied).
- What about attempted Hobbs Act robbery? This is a gray area. So you should probably preserve the argument that attempted Hobbs Act robbery (and other attempts as well) does not qualify as a “crime of violence” after Davis.
- It is hard to see how RICO conspiracy qualifies as a crime of violence after Davis. RICO conspiracy is no different from Hobbs Act conspiracy for 924(c) purposes. Rico conspiracy does not require proof that a substantive offense was committed. See USA v Applins, 637 F3d 59 (2d Cir 2011). Nor is an overt act required. Id.
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