Second Circuit Asks How To Address 924(C) Appeals In The Wake Of Davis

The Supreme Court's landmark ruling in United States v. Davis, 588 U.S. ___ (2019), has opened the floodgates to hundreds of petitions seeking to overturn convictions under the residual clause of Section 924(c). Now, circuit courts of appeals across the nation are feeling the immediate impact of the decision as federal offenders appeal their firearms convictions and seek to reduce their sentences. The Second Circuit, which was partly responsible for the circuit split resolved by Davis, has asked the parties in United States v. Barrett, No. 14-2641 (2d Cir. 2018), to propose to the court a mechanism to govern how these petitions should be addressed going forward.

In Davis, the Supreme Court held that the definition of "crime of violence" found at 18 U.S.C. § 924(c)(3)(B), also known as the residual clause, was unconstitutionally vague. The decision to grant review in Davis was due in large part to a deepening circuit split on the question of the residual clause's vagueness - a question borne out of the Supreme Court's decision in Sessions v. Dimaya, 584 U.S. ___ (2018). In Dimaya, the Supreme Court determined that Section 16(b)'s definition of crime of violence in the federal criminal code was unconstitutionally vague. Section 16(b)'s definition, however, was identical to the definition under Section 924(c). As a result, several circuit courts of appeals relied on the holding in Dimaya to conclude that Section 924(c) was void for vagueness as well. See, e.g., United States v. Eshetu, 898 F.3d 36 (D.C. Cir. 2018); United States v. Salas, 889 F.3d 681 (10th Cir. 2018). The Second Circuit, however, was on the other side of this divide, upholding the residual clause in Barrett.

But with the Davis now the "law of the land", the Second Circuit has now asked the parties to brief two questions: (1) how Davis affects the part of Barrett recognizing Hobbs Act robbery conspiracy as a categorical crime of violence; and, (2) whether Davis absolves a defendant from the need to show that Section 924(c)'s residual clause is unconstitutionally vague as applied to his case.

The first question concerns the underlying crime to which the firearms offense attaches. As Justice Neil Gorsuch explained in Davis, the decision to strike down the residual clause will have limited application because certain offenses are still categorically "crimes of violence" just based on their elements. For those offenses, a firearms conviction under Section 924(c) is still valid...