Today, in United States v. Davis, the Supreme Court invalidated section 924(c)(3)(B) as unconstitutionally void for vagueness. Section 924(c) makes it a federal crime to use a firearm during and in relation to a crime of violence. And section 924(c)(3)(B) provided one of the statute’s definitions of what a crime of violence is—“any other offense that is a felony and 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.”
Section 924(c) establishes a graduating set of penalties—the first violation has a 5-year mandatory minimum, and any successive violation has a 25-year mandatory minimum. The penalties also must run consecutively. They can also be stacked; prior to the First Step Act, prosecutors could charge multiple 924(c) convictions that arose out of the same course of conduct at the same time, even when a defendant was a first time offender. That is, a first-time offender who used a firearm to buy some marijuana and opioids over the course of a day could receive a 5-year mandatory minimum for the marijuana purchase and a consecutive 25-year minimum for the opioid purchase. (Section 924(c) also makes it a crime to use a firearm during or in relation to a drug trafficking offense.)
United States v. Davis is a welcome addition to the pantheon of Johnson opinions from the Court. (Johnson v. United States is the decision that invalidated the Armed Career Criminal Act’s residual clause as unconstitutionally void for vagueness. ACCA imposed a 15-year mandatory minimum on felons in possession of a firearm with three or more previous convictions for violent felonies.) But Davis’s reach, like Johnson’s reach, will be dictated by a host of procedural rules that courts must sort out.
I have written elsewhere about the myriad procedural obstacles that defendant seeking to benefit from Johnson or Davis might face. I am just going to walk briefly through some big ones before focusing on two additional hurdles that are unique to cases like Johnson or Davis. (Much of the quicker recap draws from my Harvard Law Review Blog post on Sessions v. Dimaya—Vague Criminality and Mass Incarceration: Will Dimaya End The Insanity?) And I’ll focus on procedural obstacles for defendants whose convictions have become final—that is, their direct appeals have expired and the Supreme Court denied a certiorari petition from the appeal, or the time to file a certiorari petition has expired.
The first obstacle that defendants will face is the doctrine of retroactivity. Generally, new constitutional rules of criminal procedure do not apply retroactively. However, new substantive rules do apply retroactively. And decisions invalidating substantive criminal statutes—statutes that impose additional punishment on people, or statutes that define criminal offenses—are substantive. That is what the Court said in Bousley v. United States (which addressed the retroactivity of an earlier decision interpreting the scope of section 924(c)), and Welch v. United States. Welch held the decision in Johnson (which invalidated ACCA’s residual clause) unconstitutionally void for vagueness. Davis retroactivity is even easier, since section 924(c) defines a stand-alone offense and new crime, whereas ACCA technically did not (because of a bug in the Court’s Sixth Amendment jurisprudence—Almendarez-Torres, blech!).
The next obstacle is procedural default. Generally, defendants cannot raise a new claim in resentencing or post-conviction proceedings if they did not previously raise that claim. So if a defendant has not previous argued that section 924(c) is unconstitutionally void for vagueness, procedural default means the defendant can’t argue that claim for the first time in post-conviction proceedings. However, there are several exceptions that should allow defendants to raise Davis claims for the first time. One is the exception for so-called “novel” rules—rules that are so new they couldn’t have been foreseen. Defendants can raise those claims despite not raising them previously. The other, more applicable exception is for “actual innocence”—for defendants who are actually innocent of the crime they were convicted of. As Justice Gorsuch noted in the opening line of Davis, “In our constitutional order, a vague law is no law at all.” So defendants convicted under an invalid, non-existence vague law were not convicted of a crime at all. They are innocent – they were not convicted of a valid crime.
I wrote an article that fleshes out this theory, Legal Innocence and Federal Habeas. It explains why defendants who were convicted under invalid criminal statutes are actually innocent, for purposes of the procedural default exception and others too. The Court confirmed as much in Bousley v. United States, when it declared that defendants who are convicted under an improper interpretation of a criminal statute are innocent of a crime just like defendants who are innocent because subsequent facts reveal they did not commit the crime they were convicted of.
But Bousley contained a caveat. The caveat is that the government must have the opportunity to establish that the defendant did commit a crime under a valid criminal statute, properly interpreted. In the case of section 924(c), the statute offers another definition of what counts as a crime of violence, section 924(c)(3)(A). Section 924(c)(3)(A) defines a crime of violence as any offense that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Therefore, under Bousley, the government would have the opportunity to prove that the defendant is not innocent, because the defendant committed a “crime of violence” as defined by the still valid provision of 924(c)—section 924(c)(3)(A).
If that’s not enough to make your head hurt, there is also the statute of limitations—which provides that defendants have one year to file a resentencing motion from the date of the new, retroactive rule they are relying on. So Davis starts the one-year statute of limitations for defendants to file. There is also a chance that defendants may file outside the one year window on the ground that they are actually innocent. McQuiggin v. Perkins established that actual innocence counts as an exception for the statute of limitations; I also discuss this in the article I referenced above.
Defendants who have already filed one resentencing motion must also clear another hurdle. Under section 2255(h), they must show not only that the rule in Davis is retroactive, they must also show that the Supreme Court has made the rule in Davis is retroactive. The difference between the two is foggy, but in brief: a rule can be retroactive if the court of appeals decides that the better reading of precedent is that it is retroactive even if the Supreme Court has not held the rule retroactive. That’s another potential obstacle as well, but again I think the better reading of the relevant cases is that the Supreme Court has made the rule in Davis—which invalidates a freestanding criminal offense—retroactive. A contrary interpretation of section 2255(h) would raise all sorts of problems that I discuss in the article above. (If I discussed all of these things in depth, this post would become the 30,000-word article I keep referring you to!)
But those aren’t even the procedural obstacles I wanted to focus on! Cases involving statutes like section 924(c) and ACCA also raise other procedural obstacles because of the way the statutes are structured. As I noted above, Davis and Johnson invalidated just one of the definitions for a “crime of violence” that is contained in two different statutes. But the statutes in both Davis and Johnson offered other definitions of crime of violence. So how can you tell whether a defendant’s conviction or sentence rested on an invalid definition of crime of violence (like section 924(c)(3)(B) from Davis) or a valid definition of crime of violence (like section 924(c)(3)(A))?
This question has divided the courts of appeals. Some courts of appeals say that defendants may be resentenced in light of Johnson (or now Davis) only if the sentencing court explicitly relied on the invalid portion of statute. That is, these courts say that a defendant has a Johnson or Davis claim only if the sentencing court, when imposing sentence, said in the transcript “I am relying on section 924(c)(3)(B), and relying on that provision, I sentence you to 5 years” or perhaps if the presentence report said the same.
Of course, that’s not how a lot of sentencing transcripts worked—there was no reason for sentencing courts to identify what particular definition of crime of violence they were relying on. (The courts taking this approach rely on the text of section 2255, which refers to when “the right asserted” was initially recognized; they maintain that defendants are not asserting the right recognized in Johnson or Davis if the sentencing court didn’t explicitly rely on invalid provisions. I don’t think that’s right, and may post on this more later.) And this rule would greatly limit what defendants might benefit from the ruling in Davis (and Johnson).
Other courts take different approaches: Some say that a defendant can raise a Johnson or Davis claim as long as the sentencing court did not explicitly rely on a still valid definition of crime of violence. And other courts say there shouldn’t be any threshold inquiry about whether a court relied on a particular provision—the question is just whether the defendant’s conviction or sentence can stand under a still valid definition of crime of violence (properly interpreted).
There is at least one petition for certiorari raising this issue and asking the Court to resolve it, although the Court has seen some petitions before and rejected them. But now that the courts will be tackling this issue once more in light of Davis, it seems worth a second look. The answer to this question is important because it will significantly affect how many defendants get the benefit of the ruling in Davis.
Courts have also divided over another, related question about who will benefit from the ruling in Davis. This other question also comes up in the course of determining whether a defendant is actually innocent under the procedural default exception, or in the course of determining whether a defendant’s conviction or sentence can stand under a still valid definition of crime of violence. As I’ve now noted several times, there are other, still standing definitions of a crime of violence—both in section 924(c), the provision at issue in Davis, and in 924(e), the provision from Johnson.
As it turns out, these other provisions occasionally generate courts of appeals and Supreme Court decisions interpreting them. And another question that has divided the courts of appeals is whether defendants, in seeking to prove they are actually innocent or in seeking to prove that their convictions or sentences can’t be upheld under these other definitions of crime of violence, can rely on subsequent court of appeals or Supreme Court decisions interpreting those other definitions of crime of violence. That is, let’s say a defendant was sentenced in 2010 under section 924(c). And let’s say that in 2015, the Supreme Court interpreted section 924(c)(3)(A) and narrowed it considerably. In order to prove that the defendant is actually innocent—and in order to prove that his conviction or sentence can’t be upheld under section 924(c)(3)(A) —can the defendant rely on that 2015 Supreme Court decision interpreting section 924(c)(3)(A)?
I think the answer is yes. But not all courts agree. (Cough, Eleventh Circuit, cough.) I discuss this issue in this essay with Shakeer Rahman, and may also blog more about it later. This question, like the first one, will also affect which defendants are able to benefit from the Court’s decisions in Johnson and Davis.
Davis, like Johnson, is a significant victory for criminal defendants. But how much of a victory it is will be decided by how courts answer a morass of technical questions on pleading and procedure. Perhaps the Supreme Court should consider taking up those questions soon.