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1ST CIRCUIT HOLD 924(c) IMMUNE TO DIMAYA ATTACK

After Sessions v. Dimaya, a lot of people doing time for using a gun during a crime of violence have hoped to attack their 18 USC 924(c) convictions by arguing the underlying crime was not violent. Two weeks ago, we reported that the 2nd and 11th Circuits had shut down Dimaya attacks on 924(c). Last week, the 1st Circuit joined them.

Section 924(c) makes it punishable by a minimum five-year consecutive sentence, to use, carry, or possess a firearm in connection with a “crime of violence.” The “residual clause” of 924(c) defines “crime of violence” to mean 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.” In Johnson v. United States and, later, in Dimaya, the Supreme Court invalidated similar residual clauses on vagueness grounds. 

Ishmael Douglas was convicted of a Hobbs Act robbery and a 924(c) count. He argued that under the categorical approach, which looks at the minimum conduct sufficient to violate the statute regardless of what the defendant may actually have done, his robbery could not be considered to be a crime of violence.

The 1st Circuit rejected Ishmael’s argument that 924(c)’s crime of violence definition is void for vagueness. “That is because,” the Circuit said, “the statute reasonably allows for a case-specific approach, considering real-world conduct, rather than a categorical approach, and because Douglas’s conspiracy to commit a Hobbs Act robbery qualifies as a ‘crime of violence’.” Agreeing with the 2nd and 11th Circuits, the 1st held that because 924(c) “requires consideration of a contemporaneous offense rather than a prior conviction, this residual clause does not raise either the practical or the Sixth Amendment right-to-trial concerns that led the Supreme Court to adopt the categorical approach in Taylor v. United States [and] Descamps v. United States.”

United States v. Douglas, Case No. 18-1129 (1st Cir. Oct. 12, 2018)

– Thomas L. Root