In a 5-4 decision in United States v. Davis, the Supreme Court held that 18 U.S.C. 924(c)(3)(B) is unconstitutionally vague. That statute imposes a consecutive, mandatory minimum sentence for a defendant who is convicted of possessing a firearm in furtherance of a crime of violence. Relying on recent precedent invalidating similar provisions in the Armed Career Criminal Act and 18 U.S.C. 16(b), the Court declared what is known as the “residual” definition of a crime of violence — one 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” — to be unconstitutionally vague.
We have previously written about the technical features of the residual clause that make it unconstitutional hereand here. But in the majority opinion, Justice Gorsuch also reaffirms from the outset the proper roles of the courts and Congress in prohibiting certain conduct under federal law:
In our constitutional order, a vague law is no law at all.Only the people’s elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutesthat give ordinary people fair warning about what the law demands of them. Vague laws transgress both of those constitutional requirements. They hand off the legisla-ture’s responsibility for defining criminal behavior to unelected prosecutors and judges, and they leave people with no sure way to know what consequences will attachto their conduct. When Congress passes a vague law, the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again.
The Supreme Court took up Davis because the lower appellate courts had issued conflicting opinions regarding the residual clause’s constitutionality. One of the last appellate courts to do so was the Fourth Circuit in United States v. Simms, a case briefed and argued by Blue LLP partner Dhamian Blue. In Simms, issued on January 24, 2019, the Fourth Circuit, sitting en banc, also held that 924(c)(3)(B) was unconstitutionally vague, and now, Davis affirms the Fourth’s Circuit’s analysis.
For more information about Simms, Davis, and how the might impact a prior or pending federal prosecution, please contact Blue LLP partner Dhamian Blue.