Why the Categorical Approach Should Not Be Used When Determining Whether an Offense Is a Crime of Violence under the Residual Clause of 18 U.S.C. § 924(c)

By Richardson, Mary Frances | American University Law Review, January 1, 2018 | Go to article overview

Why the Categorical Approach Should Not Be Used When Determining Whether an Offense Is a Crime of Violence under the Residual Clause of 18 U.S.C. § 924(c)


Richardson, Mary Frances, American University Law Review


Introduction

In 2015, the Supreme Court held the so-called "residual clause" of the definition of "violent felony" in the Armed Career Criminal Act (AÇÇA), 18 U.S.C. 924(e),1 to be unconstitutionally vague.2 The decision thereby reduced the class of prior convictions that can subject defendants convicted of a federal firearms offense to a mandatory minimum sentence.3 In 2018, the Court voided similar language in the general federal definition of "crime of violence," 18 U.S.C. 16, which subsequently reduced the class of prior convictions that can subject a non-citizen to deportation.4 The language of 16 is virtually identical to the definition of crime of violence that applies to 18 U.S.C. 924(c)5-a statute that makes it a separate criminal offense to use or carry a firearm while committing a federal crime of violence or drug trafficking crime. However, as argued below, although the Court determined that the residual clause of 16 is unconstitutional, the identical provision of 924(c) should survive because a jury, rather than ajudge, can decide whether a crime constitutes a crime of violence.6

As noted, § 924(c) criminalizes the use or possession of a firearm while committing a crime of violence or a drug trafficking crime.7 For example, in United States v. Prickett,8 the defendant shot his wife multiple times with a firearm while camping.9 He conditionally pled guilty to assault with intent to commit murder10 and a § 924(c) violation and then sought to dismiss the § 924(c) count, but the district court denied his motion.11 The Eighth Circuit affirmed, employing the categorical approach in deciding that an assault with intent to commit murder qualifies as a crime of violence.12

Courts often use this controversial tool called the "categorical approach" to determine whether a defendant's prior conviction qualifies as a violent felony or a crime of violence.13 Many federal criminal statutes provide for increased penalties if a defendant has prior convictions for violent crimes.14 For example, under the AÇÇA, a defendant who commits a firearms offense and also has three prior convictions for violent felonies or serious drug offenses faces a minimum mandatory sentence and a higher maximum possible sentence than a defendant who commits the same firearms offense with no prior convictions.15

The Supreme Court has made it clear that judges using the categorical approach should determine whether a prior conviction was for a violent felony under the AÇÇA,16 or a crime of violence under statutes such as 18 U.S.C. § 16.17 The categorical approach, which has its origins in Taylor v. United States,18 requires a court to consider the statutory definition of the crime at issue, rather than the actual facts that gave rise to the conviction, to determine whether it qualifies as a violent felony under the AÇÇA.19

In its recent decision in Johnson v. United States,20 however, the Court determined that the use of the categorical approach rendered part of the definition of violent felony-the "residual clause"21-unconstitutionally vague.22 Similarly, in Sessions v. Dimaya,23 the Court decided that 18 U.S.C. § 16(b) is unconstitutionally void for vagueness under Johnson.24 The decision in Dimaya followed the precedent set in Leocal v. Ashcroft,25 in which the Court determined that lower courts must use the categorical approach to determine whether a person has a prior conviction for a crime of violence under § 16, and therefore has been convicted of an aggravated felony that renders her subject to deportation.26

However, the Court has not considered whether the categorical approach must be used to determine whether an offense is a crime of violence under 18 U.S.C. § 924(c).27 Section 924(c) provides for a mandatory consecutive sentence for a defendant who uses or carries a firearm during and in relation to a federal crime of violence or drug trafficking crime, or who possesses a firearm in furtherance of such a crime. …

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