In 2015, the Supreme Court decided Johnson v. United States. The decision struck down part of the federal Armed Career Criminal Act of 1984 (“ACCA”), which defined a legal term: “violent felony,” used for some federal crimes. As noted in a recent article from the Washington Post, hundreds, if not thousands, of prisoners can expect to have their prison sentences reduced as a result of Johnson.

Johnson’s impact, however, does not stop at the individuals directly sentenced under ACCA. The Supreme Court’s rationale in Johnson may be applicable to many other federal criminal statutes, including laws defining a similar term: “crime of violence.” In this post, we will discuss how the Johnson decision has impacted the definition of “crime of violence,” how federal prosecutors are pushing back against Johnson’s reach, and how courts of appeals have ruled on this issue.

Background on the Johnson decision

The federal Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e), was designed to punish repeat offenders in the federal criminal system. It is applicable to defendants with three or more prior federal or state convictions for a “violent felony” or “serious drug offense.” When applicable, ACCA increases the penalty for being a felon in possession of a firearm from a maximum of 10 years in prison to a mandatory minimum of 15 years in prison. Thus, a defendant who might have been sentenced to only 6 months in prison, or even probation, may instead wind up with a 15-year prison sentence. When it applies, ACCA means serious consequences for the defendant.

Whether ACCA does apply in a given case depends on whether a defendant’s prior convictions are either “serious drug offenses” or “violent felonies.” ACCA requires a combination of at least three such convictions for the enhanced penalty to apply.

It is relatively straightforward to determine whether a prior conviction is a “serious drug offense.” ACCA defines “serious drug offense” to include specific sections of the United States Code (which sets forth federal drug crimes), and equivalent state drug crimes with a maximum sentence of 10 years or more of prison time.

Determining whether a prior conviction is a “violent felony,” however, is far more ambiguous. Under ACCA, a “violent felony” is defined as a crime that is “burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” The italicized language—called ACCA’s residual clause—can be especially vague. For example, would DUI count as a “violent felony?” After all, drunk driving is one of the leading causes of death in this country, so drunk driving arguably presents a “serious potential risk of physical injury,” and may therefore count as a “violent felony” under ACCA. (But in Begay, the Supreme Court ended up deciding that drunk driving is not a violent felony, for various reasons that I will not go into here.) What about violating environmental regulations to release pollutants that are hazardous to human health?

Given the large universe of possible crimes that can arguably fit under the “serious potential risk of physical injury” standard, federal courts were frequently divided over the residual clause’s meaning and application. From 2007 to 2011, the Supreme Court has had to wrestle with ACCA’s residual clause no less than four times.  In 2015, with another residual clause case before it, and a seemingly intractable statute that threatens to produce a never-ending surplus of circuit splits, the Supreme Court finally gave up and declared ACCA’s residual clause unconstitutionally vague in Johnson v. United States, No. 13-7120, slip op. (U.S. 2015).

Summary of Johnson’s holding

According to Johnson, “[t]wo features of the residual clause conspire to make it unconstitutionally vague.”

The first feature is what is called the “ordinary case” analysis required under ACCA: in order to determine whether a given crime is a “violent felony,” a court has to disregard the facts of the specific case before it, and consider only the “ordinary,” or typical, case of the crime that the defendant was convicted of. For example, if a defendant was convicted of obstruction of justice, and his actual conduct involved stabbing a witness to death, the court cannot rule that the defendant committed a “violent felony” merely because this particular case involved a stabbing. Instead, the court is required to decide whether a “typical” obstruction of justice crime involves stabbing, or some other conduct with a “serious potential risk of physical injury.” The reverse is also true: just because a defendant happened to commit a crime in a peaceful and non-violent manner in a case does not affect the court’s decision on whether the crime is a “violent felony.” In all cases, the court can only consider whether the “typical” or “ordinary” case of the crime meets the “serious potential risk of physical injury” standard.

Because what happens in the “ordinary case” of a given crime is rarely something that courts have empirical data on, the outcome of an “ordinary case analysis” frequently produced wildly unpredictable results. (For example, the Supreme Court has previously held that drunk driving is NOT a violent felony, but later also held that vehicular flight IS a violent felony.)

ACCA’s second problematic feature is the uncertainty about how much risk is enough for a crime to count as a “serious potential risk.” Even if data about an “ordinary case” is available, it is not at all clear if a crime that has, say, a 10% chance of causing permanent disfigurement in a victim is a “serious potential risk for physical injury.” What about a crime with a 1% chance for death?  And would this crime have a greater or lesser potential risk for physical injury than the crime with the 10% chance of permanent disfigurement? Although it is not uncommon for the law to sometimes rely on imprecise standards to judge real-world facts (consider, for example, imprecise standards like “reasonable person,” or “material fact”), ACCA pairs an imprecise standard with a judicially imagined “ordinary case.” That pairing, according to the Supreme Court, is what renders ACCA unconstitutionally vague.

How does Johnson impact the “crime of violence” definition under 18 U.S.C. § 924(c)?

ACCA defines “violent felony,” and Johnson held that part of the definition is unconstitutional. In federal criminal law, there is a very important and similar-sounding term called “crime of violence,” that frequently appears in rules and statutes, including 18 U.S.C. § 924(c).

18 U.S.C. § 924(c) creates a substantive offense for possessing or using a firearm during, or in furtherance of, a “crime of violence.” The statute defines “crime of violence” as an offense that either: (1) has as an element the use, attempted use, or threatened use of physical force; or (2) is a felony 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.”  The § 924(c) definition of “crime of violence” is copied verbatim from 18 U.S.C. § 16, which provides the general definition for “crime of violence” under federal law.

The parallels between “violent felony” and “crime of violence” are immediately apparent.

• First, because the residual clause defining “crime of violence” begins with the phrase: “by its nature,” it tells us that deciding whether a given crime is a “crime of violence” under § 924(c) must use the “ordinary case” method, just like with ACCA.
• Second, because the residual clause defining “crime of violence” asks us to look at whether there is a “substantial risk that physical force…may be used,” this is no more precise than the “serious potential risk of physical injury” standard under ACCA.

In other words, in order for a judge to decide whether a crime is a “crime of violence” under § 924(c), the judge needs to use an “ordinary case” analysis and apply an imprecise standard. That sounds just like the problems highlighted by Johnson, that rendered ACCA’s definition of “violent felony” unconstitutionally vague, doesn’t it?  Indeed, federal criminal defense attorneys have frequently made this argument to challenge the constitutionality of § 924(c).

How has the government responded to Johnson?

Federal prosecutors, when responding to pleadings that challenge the constitutionality of § 924(c), and similar federal statutes such as 18 U.S.C. § 16(b), have generally relied on a handful of arguments to try to distinguish ACCA. Those arguments can be summarized as follows:

• ACCA’s residual clause includes a list of four crimes that do not appear in other similar statutes.
  The government’s first argument for distinguishing ACCA is almost always that the residual clause in ACCA comes with a list of four crimes: burglary, arson, extortion, or use of explosives. In Johnson, the Supreme Court noted that this was a “confusing list,” because the crimes are “far from clear in respect to the degree of risk each poses.”  Thus, the argument goes, Johnson would have come out with a different result if ACCA’s residual clause simply omitted the list of four crimes.
• ACCA requires courts to consider extra-offense conduct.
  A common second argument is that ACCA requires courts to consider the risks that go beyond the bare acts that make up the crime. In Johnson, the Supreme Court noted that the court’s task “goes beyond evaluating the chances that the physical acts that make up the crime will injure someone.” According to the government, other statutes like 924(c) are different because they are concerned with the risk of physical force being used “in the course of committing the offense.”
• ACCA has a long history of circuit-splits and Supreme Court opinions. The government will usually also point to a history of circuit-splits and the rapid succession of Supreme Court opinions on ACCA to show that ACCA is unique from other similar statutes. Both factors are mentioned in Johnson as evidence that ACCA is unconstitutionally vague.  
• The challenged statute is not vague as applied to the defendant. Sometimes, the government will also argue that the challenged statute is not vague as applied to the defendant. As the Fifth Circuit noted, however, there is no general requirement that a statute be vague “as applied to the defendant” before he may bring a facial vagueness challenge. United States v. Gonzalez-Longoria, No. 15-40041, Slip Op. (5th Cir. 2/10/2016)

How have the courts of appeals ruled in light of Johnson?

At the time of this writing, only four courts of appeals have decided the constitutionality of the residual clause defining “crime of violence” under § 924(c), and the identical §16(b), in light of Johnson. Three courts of appeals have invalidated § 16(b) (with some caveats as noted below), and one court of appeals held that § 16(b) is constitutional.  Other circuits have been presented with the question, but have managed to avoid answering the question for now (by deciding the case on other grounds).

• Fifth Circuit. United States v. Gonzalez-Longoria, 813 F.3d 225 (5th Cir. 2016). A panel of the Fifth Circuit rejected all of the Government’s arguments and held that 18 U.S.C. § 16(b) is unconstitutionally vague. That opinion has been vacated pending an en banc
• Sixth Circuit. United States v. Taylor, 814 F.3d 340 (6th Cir. 2016). The Sixth Circuit is the only Court of Appeals to hold that the residual clause for “crime of violence” is constitutional. The court accepted the government’s arguments, and also added an argument of its own. In the Sixth Circuit’s view, the term “physical force,” used in the “crime of violence” definition, is narrower than the term “physical injury,” used in the “violent felony” definition.
• Seventh Circuit. United States v. Vivas-Ceja, 808 F.3d 719 (7th Cir. 2016). The Seventh Circuit has held that 18 U.S.C. §16(b) is unconstitutionally vague. In rejecting the government’s arguments, the Seventh Circuit reasoned that the “confusing list” of enumerated offenses and the history of circuit splits under ACCA were not essential to the outcome in Johnson.
• Ninth Circuit. Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015). The Ninth Circuit was the first court of appeals to reach the question of whether §16(b) is valid after Johnson. The court held that the residual clause in §16(b) is unconstitutionally vague. The court found that the two key features to ACCA’s invalidity were the ordinary case approach, and an imprecise standard such as “serious potential risk.” Both features were present in §16(b). The court also took some time to respond to the Government’s arguments.

What will happen next?

In Dimaya v. Lynch, the government filed a petition for certiorari with the Supreme Court in June, 2016. Given the circuit split and the importance of the outcome (invalidation of a federal statute in multiple circuits), there is a good chance that the Supreme Court will grant the petition.  It is difficult to say how the Supreme Court will rule.  Justice Scalia was the author of the Johnson decision, and also the most vocal member of the court when it came to calling ACCA unconstitutionally vague. Although Johnson was an 8-1 decision, with only Justice Alito being the lone dissent, it is unclear whether the other members of the court feel comfortable extending Johnson’s reasoning to other federal statutes.

In the meantime, federal criminal defense attorneys around the country have continued to challenge § 924(c) and § 16(b) (as well as other statutes) in the district court and courts of appeals, and we will wait to see how those challenges are resolved in each of the circuits.