Irma Ovalles v. United States (11th Cir. 2018), EN BANC

The Federal Docket

November 7, 2018

Firearm Offenses/18 U.S.C. § 924(c) – “Residual clause” of § 924(c) defining “crime of violence” was not void-for-vagueness and requires that the government prove that a defendant’s underlying “crime of violence” involved conduct that created a “substantial risk” that physical force would be used or threatened.

18 U.S.C. § 924(c) makes it a federal crime to carry, use, or possess a firearm in connection with an underlying “crime of violence.” The “residual clause” of this statute, § 924(c)(3)(B), defines a “crime of violence” as any 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.”

In United States v. Johnson, 135 S. Ct. 2251 (2015) and Sessions v. Dimaya, 138 S. Ct. 1204 (2018), the Supreme Court struck down residual clauses in other statutes that similarly defined “crimes of violence” on the grounds that such a definition is unconstitutionally vague.

Sitting en banc, the Eleventh Circuit addressed the question of whether the residual clause defining “crime of violence” in § 924(c) was also unconstitutionally vague.

In Ms. Ovalles’s case, the underlying “crime of violence” supporting her § 924(c) conviction was attempted car-jacking under 18 U.S.C. § 2119, which requires “the intent to cause death or serious bodily harm” and that a defendant “takes a motor vehicle…from the person or presence of another by force and violence or by intimidation, or attempts to do so…”

First, the Court addressed whether courts should employ the “categorical approach” or the “conduct-based” approach in determining whether a defendant’s underlying offense is a “crime of violence” under § 924(c)’s residual clause. Under the categorical approach, courts do not consider a defendant’s actual conduct in the underlying offense, but rather, the “kind of conduct” that, in the abstract, would usually be involved in that type of offense. Conversely, the conduct-based approach defines a defendant’s underlying offense as a “crime of violence” based on the specific conduct involved in that offense.

Crucially, Johnson and Dimaya established that applying the categorical approach to residual clauses like the one in § 924(c) rendered those clauses unconstitutionally vague, as it forced judges to imagine idealized, abstract cases.

Faced with a choice between two plausible interpretations of §924(c), the Court invoked the “canon of constitutional doubt,” which calls for courts to defer to any reasonable interpretation of a statute that saves it from being unconstitutional. Accordingly, the Court opted for the narrower “conduct-based” approach.

Now, a conviction under § 924(c) requires proof beyond a reasonable doubt, or a defendant’s admission, that: 1) the defendant actually committed the underlying felony, 2) whether the defendant’s conduct in that underlying felony created a “substantial risk” of force being used, and 3) that the defendant possessed or used a firearm in connection with that underlying felony.

Under the conduct-based approach, Ms. Ovalles attempted car-jacking was clearly a “crime of violence.” Ms. Ovalles and her co-defendants had tried to steal their victims’ car by threatening them with a baseball bat and firearms before giving up and fleeing. The conduct involved hitting a victim in the face and firing a gun in their direction. As such, Ms. Ovalles’s attempted car-jacking created the “substantial risk” of physical force being used that qualified it as a “crime of violence” under § 924(c).

Appeal from the Northern District of Georgia

Opinion by Newsom, en banc

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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