No Change In Applying Categorical Approach to 924(c)

USv. Simms: Simms was convicted of Hobbs Act robbery and a 924(c) gun charge with the robbery as the underlying “crime of violence.” Simms and a confederate snuck into a McDonald’s (through the drive-through window), robbed the store of $1100, and both brandished and struck someone with the gun. Simms pleaded guilty to both counts, but argued at sentencing that the 924(c) conviction was unconstitutional under Johnson. The district court disagreed and imposed a cumulative sentence of 199 months in prison.

Simms appealed, reiterating his argument that under Johnson, and later Dimaya, the residual clause of 924(c) was unconstitutionally vague. The Fourth Circuit decided that the case presented an issue of “exceptional importance and recurring nature,” so it took the case en banc. The court reversed Simms’ conviction on the 924(c) count, 8-7. There was no real dispute that after Dimaya, applying the categorical approach, the residual clause was vague. The issue, rather, was whether the categorical approach had to be used in 924(c) cases.

Writing for the majority, Judge Motz held that the categorical approach was required. That was due both to the plain language of the statute, as well as the case law that had consistently interpreted it over the years. The court noted that, although it didn’t prevent it from reaching the merits of the case, the Government’s about-face on whether the categorical approach was required did play into its ultimate analysis. The court rejected the Government’s attempt to use the doctrine of constitutional avoidance to reach a different conclusion, holding that it would lead to rewriting the plain language of the statute. The court also noted that upon remand the district court could still impose a 199-month sentence and take the use of the firearm into account. In a concurrence, Judge Wynn pointed out that the Government’s avoidance argument, if successful, would mark the first time the doctrine was used to broaden a criminal statute, not narrow it.

The main dissent was written by Judge Niemeyer, who argued that the Supreme Court had been clear that when residual clauses are deployed to charged conduct that they are not vague. The real issue in a 924(c) conviction is not the generic nature of the alleged crime of violence – here, Hobbs Act robbery – but the nature of the particular crime with which the defendant was charged. In light of that, it’s clear (given the use of the gun to threaten and beat victims) Simms’ 924(c) conviction was still good. Judge Wilkinson dissented separately (he joined the main one as well) to take the majority to task for engaging in part of a long process on the part of appellate courts of refashioning classic factual determinations into legal ones. Along the way, that shifts the ultimate decision-making ability from the lower court/jury to the appellate courts, who otherwise would only review for clear error or abuse of discretion.

Congrats to the Defender office in Western NC on the amicus win!