Irma Ovalles v. United StatesIrma Ovalles v. United States
*1 Before ED CARNES, Chief Judge, TJOFLAT, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, and HULL, [*] Circuit Judges.
NEWSOM, Circuit Judge:
The question before us is whether one of the key provisions of an important
federal criminal statute,
This case is in some respects a successor to
Johnson v. United States
, 135 S.
Ct. 2551 (2015), and
Sessions v. Dimaya
,
2
matter and whether, in the abstract, “the kind of conduct that the crime involves in
the ordinary case” meets the statutory standard.
Johnson
,
On the flip side,
Johnson
and
Dimaya
also make clear—and it is common
ground here—that if
The obvious (and decisive) question, then: Which is it here—categorical or
3
conduct-based? Because we find ourselves at this fork in the interpretive road—
the categorical approach imperiling
Accordingly, we hold that
4
I
A
Under
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) 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.
Importantly here, this Court held in
United States v. McGuire
that the
question whether a predicate offense qualifies as a “crime of violence” under either
subsection is one that a court “must answer ‘categorically’—that is, by reference to
the elements of the offense, and not the actual facts of [the defendant’s] conduct.”
*6
B
In 2010, Irma Ovalles was charged by information with six robbery- and
carjacking-related offenses, all of which arose out of what can only be described as
a three-day crime binge. As particularly relevant here, Ovalles was charged with
(1) attempted carjacking in violation of
The government then made a comprehensive factual proffer detailing Ovalles’s involvement in the crimes. In general, the proffer summarized the evidence demonstrating that Ovalles and her co-conspirators (1) robbed a grocery store while armed with baseball bats, then (2) still wielding the bats, carjacked a Dodge Ram, then (3) carjacked a Toyota 4-Runner, pistol-whipping its owner, then (4) attempted to carjack a Chevy Venture—more on this one below—and finally (5) carjacked a Ford F-150 at gunpoint. More specifically, concerning the attempted carjacking of the Chevy Venture—during which one of Ovalles’s
6
accomplices fired an AK-47, and which therefore serves as the predicate offense
for Ovalles’s
They see a family getting out of a Chevy Venture in Clayton County, Georgia, and as the family is getting out of their car, these two defendants along with their co-conspirators go up to the family and demand the keys to the car and demand the car. Now, they have a baseball bat and guns with them. There’s a juvenile, a 13-year-old female, who is part of that family group of victims. They hit that juvenile in the mouth with a baseball bat. The damage to her I am sure will be addressed at sentencing. It was not—she did not go to the hospital. Let me say that.
They are demanding the keys. Somebody comes out of the apartment complex where this is happening and that person has a gun. He then confronts the assailants …. They flee, not taking the Chevy Venture, which is why it is an attempted carjacking.
The government would show that the Chevy Venture traveled in interstate commerce, that it was not made in the State of Georgia. The government would prove it was these defendants not only through their confessions as to this event, also through the victims’ testimony. They do I.D. the defendants in this particular case.
On the way out of the apartment complex … co-conspirator … Jerry Arriaga … has an AK-47 style assault rifle and he then discharges that gun several times towards the victim family, the guy who came to rescue them, who was armed, and the car, and that is the basis of Count Five, the use of a firearm during and in relation to a crime of violence.
With respect to each of the charges—including, as relevant here, the
attempted-carjacking and
7
pleaded guilty to each of the charged offenses, acknowledged that her pleas were voluntary, and explained that she was so pleading because she was “in fact guilty as charged in the criminal information.”
The district court thereafter sentenced Ovalles to serve 120 months in prison
on the
C
Several years later, Ovalles filed a motion for relief under
8
that because
The district court denied Ovalles’s
A panel of this Court affirmed the district court’s decision. For our
purposes, the panel’s opinion did two significant things. First, in accordance with
(and citing to) our earlier decision in
McGuire
, it held that the question whether
Ovalles’s attempting-carjacking offense constitutes a “crime of violence” within
the meaning of
9
(1) that
Not long after the panel issued its opinion, the Supreme Court decided
Sessions v. Dimaya
,
In light of the Supreme Court’s decision in
Dimaya
, we vacated the panel’s
opinion and took this case en banc to determine (1) whether
II
At the outset, some table-setting is in order. How exactly did we get here?
Why did the Supreme Court conclude in both
Johnson
and
Dimaya
that the
residual clauses before it were unconstitutionally vague, and what do the decisions
in those cases tell us about
A
We begin with a deeper dive into
Johnson
. As already explained briefly,
Johnson
involved the ACCA, which prescribes a mandatory minimum 15-year
*12
sentence for any person who already “has three previous convictions . . . for a
violent felony . . . committed on occasions different from one another.”
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]
In striking down the ACCA’s residual clause as unconstitutionally vague,
the Supreme Court in
Johnson
emphasized “[t]wo features.”
12
judicially imagined ‘ordinary case’ of a crime, not to real-world facts or statutory elements,” and thus “leaves grave uncertainty about how to estimate the risk posed by a crime.” Id. at 2557–58. Indeed, the Court made clear that application of the categorical approach was the hinge on which its vagueness determination turned: “It is one thing,” the Court stressed, “to apply an imprecise ‘serious potential risk’ standard to real-world facts; it is quite another to apply it to a judge-imagined abstraction” of the sort required by the categorical approach. Id . at 2558. Continuing in the same vein, the Court reiterated that “[a]s a general matter, we do not doubt the constitutionality of laws that call for the application of a qualitative standard such as ‘substantial risk’ to real-world conduct.” Id . at 2561. But, the Court held, the categorical approach’s focus on the “idealized ordinary case” requires an “abstract inquiry” that “offers significantly less predictability than one that deals with” actual facts. Id . (internal quotation marks and citation omitted).
B
Next,
Dimaya
. There, the Court considered a provision of the INA that
renders an alien removable if he is “convicted of an aggravated felony at any time
after admission.”
13
definition of “violent felony” at issue in Johnson :
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and 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
Dimaya
, the Supreme Court voided § 16’s residual clause (again, as
incorporated in the INA) as unconstitutionally vague, concluding that it shared the
two features that had doomed the ACCA’s residual clause in
Johnson
―namely,
(1) a fuzzy “substantial risk” standard and (2) incorporation of the categorical
approach to determining the violence of the underlying crime.
Id.
at 1213–14.
Significantly, though, just as in
Johnson
, the
Dimaya
Court stressed that
14
2561). As Justice Thomas summarized in his dissent—without pushback—“[t]he
sole reason that the Court deem[ed]
An important caveat about
Dimaya
’s application of the categorical approach
to invalidate § 16’s residual clause: Only a plurality of the Court concluded that the
statute actually
requires
the categorical approach. Justice Gorsuch, who provided
the decisive fifth vote, concurred separately on the assumption—but not a
determination—that
C
So what do
Johnson
and
Dimaya
portend for
15
connection with a “crime of violence”―which again, as relevant here, means a
felony offense that “by its nature, involves a substantial risk that physical force …
may be used in the course of committing the offense,”
Allow us first to state the obvious:
16
statutory indeterminacy
Johnson
described.”
Accordingly, it seems clear that if we are required to apply the categorical
approach in interpreting
17
standard such as ‘substantial risk’ to real-world conduct.”
Johnson
, 135 S. Ct. at
2561 (quoted in
Dimaya
,
III
That stark divergence—in which the categorical approach dooms
As the Supreme Court has explained it, the constitutional-doubt canon “is a
tool for choosing between competing plausible interpretations of a statutory text,
resting on the reasonable presumption that Congress did not intend the alternative
which raises serious constitutional doubts.”
Clark v. Martinez
,
18
reasonable saving construction, a statute might be unconstitutionally vague.
See
United States ex rel. Att’y Gen. v. Delaware & Hudson Co.
,
The
question here, therefore, is whether
A
In assessing whether
19
considering that issue would be to account for all of the specific circumstances
surrounding the offense’s commission—
i.e.
, the actual facts. If you were to ask
John Q. Public whether a particular crime posed a substantial risk of violence,
surely he would respond, “Well, tell me how it went down—
what happened
?”
How, then, did we get to the point where, in certain circumstances, reviewing
courts are required to ignore the real-world facts in favor of a sterile academic
inquiry into what the
Johnson
Court called “speculative,” “idealized,” “judge-
imagined abstraction[s]”?
That story follows.
1
The Supreme Court initially conceived the categorical approach in
Taylor v.
United States
,
20
“particular facts” of the defendant’s conduct, and instead adopted what the Court dubbed—and we still call—a “categorical approach.” Id . at 598–602. In explaining why the ACCA’s enumerated-offenses clause requires the categorical approach, the Taylor Court emphasized two factors—one textual, the other practical.
First, the Court concluded that when read in context,
Second, the Taylor Court stressed that in the ACCA context, “the practical difficulties and potential unfairness of a factual approach [would be] daunting.” Id. at 601. In particular, the Court worried about the amount of evidence that might need to be introduced at a sentencing hearing in order to reconstruct the circumstances underlying a defendant’s prior (and often long-since-passed)
21
convictions. Id. Relatedly, the Court anticipated a Sixth Amendment problem that later decisions would amplify―namely, that judicial factfinding at sentencing about the real-world facts of crimes that led to prior convictions could “abridg[e a defendant’s] right to a jury trial[.]” Id. ; see also Apprendi v. New Jersey , 530 U.S. 466, 490 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”). In short, the Taylor Court feared that if the parties could introduce evidence bearing on the violence of the defendant’s past crimes, then sentencing proceedings might devolve into full- blown mini-trials (hence the impracticability) in which judges, rather than juries, were doing the factfinding (hence the Sixth Amendment concern). See 495 U.S. at 601–02.
For these reasons—the text’s focus on “convictions” and the impracticability
(and unfairness) of effectively re-litigating the seriousness of stale crimes long
after the fact—the
Taylor
Court concluded that for purposes of deciding whether a
prior conviction constitutes a “violent felony,” the “only plausible interpretation”
of
22
actual circumstances of the defendant’s crime. Id. at 602. [4]
2
The Supreme Court next applied the categorical approach in
Leocal v.
Ashcroft
,
3
That, for present purposes, brings us (back) to
Johnson
, in which, as already
explained, the Supreme Court applied the categorical approach in the course of
invalidating the ACCA’s residual clause.
See
24
sentence enhancement on prior crimes—the “utter impracticability” of requiring a court “to reconstruct, long after the original conviction, the conduct underlying that conviction.” Id.
4
Last came
Dimaya
, in which the Court applied the categorical approach in
striking down § 16’s residual clause—again, at least as that provision is
incorporated by the INA. A four-justice plurality concluded that
Third, the plurality explained that “[b]est read,” the text of § 16’s residual
clause incorporates the categorical approach.
Id.
Quoting the Court’s earlier
decision in
Nijhawan v. Holder
,
Simple references to a ‘conviction,’ ‘felony,’ or ‘offense,’ . . . are ‘read naturally’ to denote the ‘crime as generally committed.’ And
25
the words ‘by its nature’ in§ 16(b) make that meaning all the clearer. The statute, recall, directs courts to consider whether an offense, by its nature, poses the requisite risk of force. An offense’s ‘nature’ means its ‘normal and characteristic quality.’
Dimaya
,
Finally, following
Taylor
and
Johnson
, the plurality stressed the “utter
impracticability” of applying a conduct-based approach to a statute, like
As already noted, Justice Gorsuch concurred separately in
Dimaya
,
explaining that he was “proceed[ing] on the premise”—without definitively
concluding—that as used in the INA,
26
government itself ha[d] conceded (repeatedly) that the law compels” the
categorical approach in immigration-related
* * *
So . . . what are the takeaways? What factors have led the Supreme Court to conclude that a statute requires the categorical approach? The decisions interpreting the ACCA and § 16 reveal that the Court has historically applied the categorical approach to those statutes’ residual clauses for the following reasons:
1. because the government never asked the Court to consider a conduct-based approach ( Johnson , Dimaya );
2. because the text of those statutes’ operative provisions focused not on conduct, but rather on “convictions”—and thus, the Court reasoned, solely on formal legal elements ( Taylor , Johnson );
3. because those statutes’ definitional provisions used terms and phrases like “offense,” “felony,” and “by its nature,” which the Court concluded pointed toward a categorical (rather than conduct-based) inquiry ( Leocal , Dimaya ); 4. because those statutes lacked any reference to the underlying crime’s commission or circumstances ( Dimaya );
5. because applying the categorical approach would avoid the impracticability of requiring sentencing courts to engage in after-the-fact reconstructions of the circumstances underlying prior convictions ( Taylor , Johnson , Dimaya ); and
6. because applying the categorical approach would avoid the Sixth
27
Amendment issues that could arise from sentencing courts making findings
of fact that properly belong to juries (
Taylor
,
Johnson
,
Dimaya
).
The decisive question, it seems to us, is whether those considerations require
us to interpret
B
Although it’s not particularly elegant—in fact, it’s downright clunky and more than a little repetitive—there’s really not a better way to assess whether the Supreme Court’s own stated reasons for adopting the categorical approach in the ACCA and immigration-related § 16 contexts likewise compel a categorical
28
interpretation of
1
In applying the categorical approach in both
Johnson
and
Dimaya
, the
Supreme Court “first” and most prominently noted that the government hadn’t
advocated a conduct-based interpretation.
See Johnson
,
Suffice it to say that things are very different here. In the wake of
Johnson
and
Dimaya
—and the ensuing drumbeat suggesting that application of the
categorical approach likewise imperils
29
concurring in part and concurring in the judgment). [5]
2
A second basis that the Supreme Court has highlighted in applying the
categorical approach—derived from the text of the ACCA’s operative provision,
and specifically its reference to “convictions”―is likewise inapplicable here. As
already noted, the Court in
Johnson
(relying on and quoting its earlier decision in
Taylor
) emphasized that the ACCA’s operative clause “refers to a person who …
has three previous convictions for—not a person who has committed—three
previous violent felonies or drug offenses.”
3
Now, in fairness, there is some textual evidence that, on balance, might be
thought to favor interpreting
In
McGuire
, we applied the categorical approach to
31
particular, the statute’s use of the term “offense” and the phrase “by its nature”— mandates the categorical approach. We conclude that it does not.
a
In support of its determination that § 16’s residual clause requires the
categorical approach, the
Dimaya
plurality relied on the Court’s earlier observation
in
Leocal
that
Ovalles’s position finds some support in
32
And indeed, on the very same page from which the
Dimaya
plurality took its “read
naturally” quote,
Nijhawan
explains “the linguistic fact” that “in ordinary speech
words such as ‘crime,’ ‘felony,’ ‘offense,’ and the like”
can go either way
—
“sometimes [they] refer to a generic crime . . . and sometimes [they] refer to the
specific acts in which an offender engaged on a specific occasion.” 557 U.S. at
33–34;
see also id
. at 32 (holding that statutory provision using the term “offense”
called for application of a conduct-based, rather than categorical, approach);
United States v. Hayes
,
All things considered, therefore,
b
The strongest piece of evidence in favor of applying the categorical
approach to
In
Leocal
, the Court relied in part on
34
Dictionary
for the proposition that “[a]n offense’s ‘nature’ means its ‘normal and
characteristic quality,’” the
Dimaya
plurality reasoned that “
That is undoubtedly a reasonable interpretation of
35
4288566, at *13 (“[N]othing in these definitions indicates whether the offense whose inherent characteristics are to be considered is the generic crime or the particular one charged.”).
So, as Justice Thomas noted in
Dimaya
, “[o]n the one hand, the statute
might refer to the metaphysical ‘nature’ of the offense and ask whether it ordinarily
involves a substantial risk of physical force.”
Dimaya
,
To be clear, it’s no answer to say, “Sure, but Justice Thomas
lost
in
Dimaya
.” As an initial matter, he was objecting there to a
plurality’s
(not a
majority’s) interpretation—and in particular its interpretation of a
different
statute,
36
dueling dictionary definitions. Especially in light of the inapplicability of other
reasons for applying the categorical approach to
4
In addition to focusing on what the controlling statutes
say
in assessing the
categorical-approach issue, the Supreme Court has emphasized what they
don’t say
. In
Dimaya
, for instance, the plurality reasoned that “the absence” from § 16
“of terms alluding to a crime’s circumstances, or its commission, makes a
[conduct]-based interpretation an uncomfortable fit.”
But again,
5
Textual indicia aside, the Supreme Court has also emphasized practical considerations in deciding between categorical and conduct-based interpretations. As already explained, in initially devising the categorical approach in Taylor —and thereafter applying it in Johnson and Dimaya —the Supreme Court underscored the
37
“utter impracticability” of applying a conduct-based approach retrospectively to
determining the violence of prior crimes.
E.g.
,
Johnson
,
Importantly, the look-back problem doesn’t arise with respect to
38
identifies “
previous
convictions” for the purpose of applying a recidivism-based
sentencing enhancement to three-time felons who later possess firearms in
violation of
6
Relatedly, echoing the earlier decision in
Taylor
, the
Dimaya
plurality
acknowledged that the Court “adopted the categorical approach in part to avoid the
Sixth Amendment concerns that would arise from sentencing courts’ making
findings of fact that properly belong to juries.”
40
reviewing court could well run afoul of the rule that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt,”
Apprendi
,
Yet again, that isn’t a concern here. For starters, because the jury in a
41
carriage, or possession of the firearm occurred during and in relation to (or in
furtherance of) the federal offense, but also—and importantly—(4) that the federal
offense was in fact a “crime of violence.” As has the Supreme Court in similar
circumstances, we conclude that the government’s concession that, absent a plea, it
must prove and a jury must find all four elements―including that the underlying
offense qualifies as a “crime of violence”―“eliminat[es] any constitutional
concern.”
Nijhawan
,
* * *
So where does all of this leave us? With something of a mixed bag, frankly.
While some of the factors to which the Supreme Court has pointed in adopting and
applying the categorical approach might be thought (on balance) to favor a similar
interpretation of
Nor are we particularly troubled by Ovalles’s argument that allowing jurors to consider a
defendant’s use or possession of a firearm will inevitably transform every underlying offense
into a “crime of violence” within the meaning of
43
reasonable judges who join this opinion—can and will disagree about that. It is
enough for us to conclude—as we think is indisputable—that
We therefore overrule
McGuire
to the extent that it requires application of
the categorical approach to determine whether an offense constitutes a “crime of
violence” within the meaning of
IV
Having jettisoned the categorical interpretation in favor of the conduct-based
approach for cases arising under
V
That leaves us only to apply
It is common ground here that in order to convict Ovalles on the
45
charge, the government would need to prove (or Ovalles would need to plead to)
four distinct elements: (1) that Ovalles actually committed the underlying federal
offense—here, the attempted carjacking; (2) that the attempted-carjacking offense
constitutes a “crime of violence” within the meaning of
As it pertained to the attempted-carjacking count, the information charged Ovalles with “attempt[ing] to take a motor vehicle . . . from the person and presence of another, by force, violence and intimidation” with “the intent to cause death and serious bodily harm.” Ovalles then executed a written plea agreement acknowledging that she understood each charge in the information—including the attempted-carjacking charge—and that “she [was] pleading guilty because she is in fact guilty of the crimes [as] charged.” If attempting to steal a car “by force, violence and intimidation” and with “the intent to cause death and serious bodily
46
harm” (as Ovalles has admitted she did) doesn’t involve a “substantial risk” that physical force may be used, then it’s hard to imagine what does.
Here, though, there’s no need for imagination—the real-life details of
Ovalles’s crime, all of which she has admitted, confirm it. We won’t restate in full
the government’s factual proffer recounting Ovalles’s involvement in the three-day
carjacking spree. Suffice it to say that, in general, the proffer demonstrated that
Ovalles and her co-conspirators robbed a grocery store, successfully carjacked
three automobiles by force, and attempted to carjack a fourth. With respect to the
attempted carjacking, in particular—which, again, serves as the predicate offense
for Ovalles’s
Especially when layered on top of Ovalles’s admission to the overtly violent
charge in the information, the government’s detailed factual proffer―with which
Ovalles repeatedly said she had no “material disagreement”—leads inexorably to
the conclusion that the attempted carjacking at issue here constitutes a “crime of
violence” within the meaning of
47
recognized that her conduct posed a very real “risk” that physical force “may” be used―just, as it turns out, it was.
VI
Accordingly, we hold as follows:
1.
The question whether a predicate offense constitutes a “crime of
violence” within the meaning of
2.
To the extent that our decision in
United States v. McGuire
, 706 F.3d
1333 (11th Cir. 2013), required use of the categorical approach in making the
crime-of-violence determination under
3. As interpreted to embody a conduct-based approach,
4.
In light of the particular circumstances of its commission, all of which
Ovalles has expressly admitted, her attempted-carjacking offense was a “crime of
violence” within the meaning of
The case is REMANDED to the panel for proceedings consistent with this opinion.
48
WILLIAM PRYOR, Circuit Judge, joined by ED CARNES, Chief Judge, and TJOFLAT, NEWSOM, and BRANCH, Circuit Judges, concurring:
How did we ever reach the point where this Court, sitting en banc, must debate whether a carjacking in which an assailant struck a 13-year-old girl in the mouth with a baseball bat and a cohort fired an AK-47 at her family is a crime of violence? It’s nuts. And Congress needs to act to end this ongoing judicial charade.
I join the majority opinion in full, but I write separately to explain why our resolution of this appeal forecasts how Congress should address the vexing issue of how to punish violent recidivists under laws like the Armed Career Criminal Act [1] : by restoring the traditional role of the jury. The caselaw about how to punish recidivists has confounded the federal courts for decades and has made the resolution of this appeal tricky, but our decision also suggests a way out of the mess. Although our decision involves a contemporaneous crime and not a prior conviction, our conclusion that a jury may make findings about a defendant’s violent conduct applies with equal force to recidivist statutes. Indeed, the modern abandonment of the jury’s traditional role of making findings about prior convictions has created more problems than it has solved.
A. Recidivist Wars
Empirical research proves that Congress has good reason to punish recidivists with long sentences of imprisonment. A recent study by the United States Sentencing Commission found that “[c]areer offenders, as a group, tend to recidivate at a higher rate than non-career offenders.” [2] More specifically, “almost two-thirds . . . of career offenders released between 2004 and 2006 were rearrested” in the eight-year period after their release, while just under “one- half . . . of non-career offenders released in 2005 were rearrested” in the same period. [3] And a defendant’s criminal history as calculated under the Sentencing Guidelines is a strong predictor of future encounters with the justice system. [4] Offenders without any criminal history points are rearrested at a rate of 30.2 percent. [5] This rate jumps to 63.3 percent for offenders with five criminal history points and catapults to 81.5 percent for offenders with more than 10 criminal history points. [6] Relatedly, offenders with the lowest criminal history category are *51 rearrested at a rate of 33.8 percent, while offenders with the highest criminal history category are rearrested at a rate of 80.1 percent. [7]
Among career offenders, violent offenders, not surprisingly, pose the greatest risk to the public. For example, “drug trafficking only” career offenders recidivate at a rate of 54.4 percent, while “violent [crime] only” career offenders recidivate at a rate of 69 percent. [8] The median drug trafficker recidivates after 26 months, while the median violent offender recidivates after only 14 months. [9] The median drug trafficker commits two “[r]ecidivism [e]vents,” while the median violent offender commits three. [10] And when a drug trafficker reoffends, he is most likely to commit another drug trafficking offense, while a violent offender is most likely to commit robbery. [11] Indeed, even “mixed” career offenders who have at least one violent offense [12] recidivate at a rate of 69.4 percent and are most likely to commit assault when they recidivate. [13]
Past offenses involving a firearm are also a strong predictor of future crimes. [14] For example, “[o]ffenders whose federal offense involved firearms [are] *52 most likely to be rearrested” at a rate of 68.3 percent, and “[o]ffenders who received an enhanced sentence for a weapon . . . ha[ve] higher recidivism rates than other offenders.” [15] In short, criminals with an affinity for guns and violence are the least likely to change their ways. [16]
That recidivists merit longer sentences is hardly a new discovery. Over a century ago, the Supreme Court explained that “[t]he propriety of inflicting severer punishment upon old offenders has long been recognized in this country and in England.” [17] Accordingly, “[s]tatutes providing for such increased punishment were enacted in Virginia and New York as early as 1796, and in Massachusetts in 1804; and there have been numerous acts of similar import in many states.” [18]
In more recent years, Congress has moved to protect public safety by enacting federal crimes that provide lengthy terms of imprisonment for *53 recidivists. [19] The Armed Career Criminal Act, for example, provides a 15-year mandatory minimum sentence for a criminal convicted of unlawfully possessing a firearm or ammunition who has “three previous convictions . . . for a violent felony or serious drug offense.” [20] The Act defines a “serious drug offense” in terms of convictions under certain federal and state laws that provide a maximum sentence of 10 or more years of imprisonment. [21] And it defines a “violent felony” to include crimes that (1) have “the use, attempted use, or threatened use of physical force” as an “element” [22] —the so-called “elements clause”; (2) are “burglary, arson, or extortion, [or] involve[] use of explosives” [23] —the “enumerated offenses clause”; or (3) “otherwise . . . present[] a serious potential risk of physical injury to another” [24] —the “residual clause.”
B. The Residual Clause Strikes Back
As thoroughly chronicled in the majority opinion, years of litigation about federal recidivist statutes have weakened the penalties created by Congress. But *54 these developments have not benefited all offenders. Recidivist drug traffickers who possess a firearm are still subject to the 15-year mandatory minimum under the Armed Career Criminal Act. But after the demise of the residual clause in Johnson v. United States , [25] violent recidivists who possess a firearm—the ones akin to the violent career offenders who recidivate at a rate nearly 15 percentage points higher than recidivist drug traffickers and who tend to commit violent crimes when they do so—sometimes escape the mandatory minimum if their earlier offenses lacked a legal “element” that involves physical force, regardless of how the offender actually committed the offense. For example, an offender may have been convicted of “sexual abuse in the first degree . . . by forcible compulsion” under Alabama law for a crime that was actually violent. [26] But because the Supreme Court of Alabama has adopted a “water[ed] . . . down” interpretation of the statute that “means that [the statute] does not categorically include as an element the use, attempted use, or threatened use of physical force,” the conviction will not count as a crime of violence because “the true facts matter little, if at all, in this odd area of the law.” [27]
The same problem may exist for other offenses that can technically be committed in nonviolent ways—but rarely, if ever, are—such as kidnapping, arson, *55 and other sex crimes. Criminals who have committed violent crimes may escape the mandatory minimum sentence of the Armed Career Criminal Act because sentencing judges must “close [their] eyes” to everything but the legal definitions of prior convictions. [28] In essence, the so-called categorical approach “divorces what a habitual offender actually did from the punishment they are meant to receive.” [29] “The bizarre results” occasioned by this approach “are hard to grasp” because “the doctrine is not based in reality, but rather relies on the legal fiction that crimes are [merely] comprised of a set of elements, as opposed to the underlying criminal conduct.” [30]
I do not mean to suggest that the residual clauses of the Armed Career Criminal Act or of the federal definition of a crime of violence in recidivist statutes [31] should have survived—at least not in their original forms that required the sentencing judge to decide whether the offender’s criminal history qualified him for an increased punishment. Judges have rightfully complained that the categorical approach has taxed judicial economy. “The dockets of . . . all federal *56 courts are now clogged with [ACCA] cases,” [32] and perhaps “no other area of law has demanded more of [the courts’] resources.” [33] And as the Supreme Court explained in Johnson , the two-step process demanded by the categorical approach, in which the sentencing judge imagined the “ordinary case” of a crime and then decided “whether that abstraction present[ed] a serious potential risk of physical injury,” was vague and confusing. [34] The residual clause produced several circuit splits over whether certain crimes were sufficiently violent. [35] Indeed, the justices could not agree whether fleeing in a vehicle from law enforcement or drunk driving qualified as violent crimes, [36] eventually leading the Supreme Court to conclude that “trying to derive meaning from the residual clause . . . [was] a failed enterprise.” [37] And even the elements clause has created confusion, with members of this Court disagreeing about whether crimes like attempted murder, attempted armed robbery, robbery, aggravated assault, and felony battery are violent crimes. [38]
The problems with the categorical approach also cannot necessarily be remedied by having the sentencing judge make findings about the underlying facts of prior convictions. The Sixth Amendment requires that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury.” [39] And the specific details of a recidivist’s past crimes go beyond the simple “fact of [his] prior conviction.” [40] Indeed, some members of the Supreme Court have opined that, under the Sixth Amendment, even the bare fact of a prior conviction should be proved to a jury. [41]
C. Return of the Jury
robbery are not violent felonies);
United States v. Lee
,
[39]
Apprendi v. New Jersey
,
[40]
Id.
;
see also Mathis v. United States
,
[41]
See, e.g.
,
Dimaya
,
The combination of the need to punish violent recidivists and the problem of judicial factfinding about prior convictions yields an obvious solution for Congress: rewrite the Armed Career Criminal Act and other recidivist statutes to require that the government must prove to a jury beyond a reasonable doubt that the defendant has previously been convicted of a felony the actual commission of which involved the use, attempted use, or threatened use of physical force against another person. For example, in the case of a defendant with a prior conviction under Alabama law for first-degree sexual abuse by forcible compulsion, the prosecution could introduce evidence that the defendant in fact used violent force to subdue his victim. This evidence might include certified charging documents, stipulations, plea agreements, factual proffers, and verdict forms from the past prosecution, as well as traditional evidence such as witness testimony and physical evidence.
Tasking the jury with determining recidivism is consistent with the common law. “Habitual offender laws like the ACCA enjoy a long tradition in this country that dates back to colonial times.” [42] And“[a]t common law, the fact of prior convictions had to be charged in the same indictment charging the underlying crime . . . and submitted to the jury for determination along with that crime.” [43] In *59 1967, the Supreme Court acknowledged that “[t]he common-law procedure for applying recidivist statutes . . . , which requires allegations and proof of past convictions in the current trial, is, of course, the simplest and best known procedure.” [44] And earlier decisions of state courts left little doubt that “a verdict of the jury finding the prior conviction . . . [was] essential to the power of the court to impose the increased punishment” absent a statute that displaced the common law. [45]
“[T]he right to have a jury decide prior-offense status . . . was the law in virtually every federal and state jurisdiction, from the Founding past World War II.” [46] For example, a former Texas recidivism statute provided enhanced penalties when the prosecutor proved to the jury that the offender “ha[d] been before convicted of the same [felony] offense . . . or one of the same nature.” [47] And a jury finding was more than a formality. Under a former Indiana statute, “the previous convictions, sentences, and imprisonments [had to] be described specifically, and the jury [had to] find that the defendant was convicted, sentenced, and imprisoned *60 in the instances described, and not otherwise.” [48] Indeed, in Kelley v. State , [49] the Supreme Court of Indiana held that the prosecution could not rely on “a certified transcript of a judgment . . . [that did] not describe the crime for which [the defendant] was convicted, but merely recite[d]” that the defendant was sentenced to between one and seven years of imprisonment. [50]
The common-law method for proving prior convictions ordinarily permitted the prosecutor to rely on a broad array of evidence if the defendant refused “to stipulate as to the prior conviction[] and thereby relieve the State of the necessity of . . . adducing proof before the jury of such prior convictions.” [51] For example, in Crocker v. State , [52] after a defendant accused of “robbery with a prior conviction for robbery” contested the fact of his first conviction, the prosecutor introduced “records from the penitentiary,” “testimony of one of the officers involved in the prior case,” and a “comparison of finger prints of the [defendant] with the finger prints taken in connection with the prior offense.” [53] And in Dozier v. State , [54] the *61 jury was tasked with weighing “certified copies of the judgment and sentence,” “records of the Texas Department of Correction, including fingerprints,” and “expert testimony identifying [the fingerprints] as identical with those of the [defendant].” [55] Factfinding by juries was considered essential to recidivism statutes.
And still today, there are states that require factfinding by juries to sentence an offender under their own recidivist statutes. Under Indiana’s current habitual offender statute, [56] “habitual offender proceedings are treated as substantive criminal trials. The State must prove the allegations beyond a reasonable doubt” to a jury. [57] The test for determining whether a prior conviction from another jurisdiction qualifies as a predicate offense under Indiana’s statute does not turn on the elements of the offense, but on whether the acts that resulted in the out-of-state conviction would have constituted a predicate offense “if they had been committed in Indiana.” [58]
California also uses a conduct-based approach in cases in which it is not possible to determine whether an offense committed in another jurisdiction would qualify as a predicate felony through an inspection of the elements of the offense *62 alone. [59] Although California law permits judges to make the factual findings required to determine that the conduct that resulted in an out-of-state conviction would have been a predicate offense if committed in the state, a California court “may not rely on its own independent review of record evidence to determine what conduct ‘realistically’ led to the defendant's conviction,” but must instead rely on “those facts that were already necessarily found by a prior jury in rendering a guilty verdict or admitted by the defendant in entering a guilty plea.” [60]
Within our own Circuit, Alabama [61] and Georgia [62] likewise require the state to prove that the conduct underlying an offender’s prior out-of-state conviction would have been a predicate offense under the state’s recidivist statute if committed in the state, although both Alabama [63] and Georgia [64] permit judges to make the requisite factual findings. So in advocating a return to the jury’s traditional role in determining recidivism at the federal level, I am not advancing a *63 proposal untested by contemporary experience. I am instead proposing a solution that has proved workable in practice in several states.
Some may object that jurors’ knowledge of past convictions will lead them to engage in propensity reasoning, [65] but the Supreme Court long ago held that the “use of prior convictions in [a] . . . criminal trial . . . [is not] so egregiously unfair upon the issue of guilt or innocence as to offend” the guarantee of due process of law. [66] In any event, the details of past convictions are unlikely to reach the jury. [67] To begin, about 97 percent of federal prosecutions end in guilty pleas. [68] And those few defendants who go to trial can stipulate to their past convictions and limit any proceedings to the charged offenses. [69]
The supposed unfairness to defendants of admitting proof of prior convictions is the same concern that motivated the failed experiment of allowing judges to assess recidivism. When the Supreme Court decided Spencer v. Texas [70] in 1967 and upheld the common-law jury method against a challenge under the Fourteenth Amendment, [71] the majority opined that it “might well agree” that other methods of assessing recidivism, such as “leaving that question to the court,” would be “faire[r]” than placing a defendant’s criminal history before the jury. [72] Justice Stewart also wrote in his concurring opinion that, “[i]f the Constitution gave [him] a roving commission to impose upon the criminal courts of [the states his] own notions of enlightened policy, [he] would not join the [majority] opinion” because other “recidivist procedures . . . are far superior to those utilized [under the common law].” [73] And then-contemporary academic commentators critiqued the common-law method and identified alternatives, including “determination of [recidivist] status by the judge.” [74] But here we are. The cure of judicial factfinding has proved worse than the disease it was supposed to treat.
Another objection might be that compiling evidence of prior convictions will be burdensome. But with the advent of electronic records and other advantages of modern technology, the task of reconstructing the details of prior convictions will today be far easier than it was under the original common-law procedure and, over time, will become easier still. [75] Because most state and federal prosecutions end in guilty pleas, the relevant details of prior convictions ordinarily will be preserved in factual proffers and other plea records. [76] And in the light of the rapid rate at which many violent offenders recidivate, other relevant evidence likely will be fresh. [77]
In any event, Congress has some options for ensuring that all violent recidivists remain subject to the mandatory minimum penalty. As explained above, the elements clause may fail to capture offenders who commit broadly defined crimes in violent ways. But the facts of their prior crimes, when ascertainable, should not be immune from consideration when they commit new crimes. supra note 45, at 340–41 & n.21 (critiquing the common-law method, but also acknowledging that judicial factfinding “deprives the defendant of a jury trial on the issue”).
[75]
Cf. Crocker
,
[76] See Bureau of Justice Assistance, U.S. Dep’t of Justice, Plea and Charge Bargaining 1 (2011) (“[A]bout 90 to 95 percent of both federal and state court cases are resolved through [plea bargaining].”).
[77] See U.S. Sentencing Comm’n, Report to the Congress , supra note 2, at 42 (finding a “[m]edian [t]ime to [r]ecidivism” of 14 months).
That this country comprises 50 states with different criminal codes all but ensures that a formalist approach to defining a crime of violence—administered only by judges—will be either over- or underinclusive and almost certainly will be vulnerable to persistent litigation like that which felled the residual clause. For example, a recent bill introduced in the United States Senate proposes to apply the mandatory minimum to defendants with “[three] or more previous serious felony convictions,” namely “any conviction . . . for an offense . . . punishable by imprisonment for a statutory maximum term of not less than 10 years.” [78] But this definition is both too narrow and too broad. It would exclude the offense of “felony battery” under Florida law, [79] a third-degree felony with a maximum term of imprisonment of five years, [80] even though this crime requires the infliction of “great bodily harm, permanent disability, or permanent disfigurement.” [81] It also would exclude convictions for “domestic battery by strangulation” under Florida law [82] and for “assault[ing] another and inflict[ing] substantial bodily harm” under Minnesota law. [83] But it would include the Florida offense of “[u]nlawful *67 possession or use of a fifth wheel,” [84] a second-degree felony with a maximum term of imprisonment of 15 years. [85] It would include a conviction under Utah law for “the intentional sale of five or more unlawful telecommunication devices within a six-month period,” [86] also a second-degree felony with a maximum term of imprisonment of 15 years. [87] And it would include the Massachusetts offense of knowing possession of “ten or more pieces of false money . . . with intent to utter or pass the same as true,” a crime punishable by a life sentence. [88] In the light of the substantial recidivism differences between violent and nonviolent offenders, Congress should ensure that their punishments are based on the nature of their past convictions and not the potential sentences for those convictions.
Make no mistake—Congress must eventually do something. The need to punish violent recidivists is just as strong today as it was when the Supreme Court decided Spencer over 50 years ago. [89] The only question is what Congress should do. Restoring the common-law role of the jury is the right place to start.
*68 MARTIN, Circuit Judge, dissenting:
As United States Circuit Judges, we have been given great power and privilege. And our positions call upon us to decide the fate of many people who have neither. In a nation that incarcerates a larger percentage of its population than almost all others, federal judges devote much time to examining (and reexamining) the sentences imposed on people serving time in our federal and state prisons. The interpretation the majority of this en banc Court gives to the sentencing statute at issue here, which gives no relief for Irma Ovalles, presents the opportunity to review the development of this Circuit’s sentencing jurisprudence in recent years. My review reveals a body of law that has relentlessly limited the ability of the incarcerated to have their sentences reviewed. Decisions of this Court have left only a narrow path to relief for those serving sentences longer than the law now allows. Yet this narrow path is not mandated by decisions of the Supreme Court or by Acts of Congress. Indeed, this Court has withheld relief from prisoners even when precedent counsels otherwise.
As did my colleagues in the majority, I begin with the landmark Supreme
Court decision in Johnson v. United States,
Yet at every turn, this Court erred in ways that stopped prisoners from getting their sentences reviewed and prevented people who had meritorious claims from getting relief. Ms. Ovalles’s case is a “successor” to Johnson, Maj. Op. at 2, and it is the latest in this line of decisions. Judge Jill Pryor’s dissent shows how the majority strays from the plain text of the statute and from Supreme Court precedent. I fully join her opinion. I write separately to provide the context of the Eleventh Circuit’s response to Johnson. This is not the first time this Court has mistakenly applied Johnson, nor the first time our mistake will leave an unlawful *70 sentence intact. Indeed, today’s en banc decision, like others before it, promises to have lasting effects for many prisoners.
I. JOHNSON AFTERMATH
When the Supreme Court invalidates a statute that was the basis for
sentences being served by thousands of federal prisoners, the first question
becomes, who benefits? Do we simply quit relying on this unconstitutional statute
for those who will be sentenced in the future, or do we go back and give relief to
those who were sentenced under the flawed statute in the past? There are rules
governing who gets relief. See generally Teague v. Lane,
1060 (1989). Generally, people sentenced under a flawed statute more than a year
before the Supreme Court announces a new rule like the one in Johnson get relief
based on the new rule (retroactive relief) if the Supreme Court has told us they can.
See
One statutory tool for a person seeking relief from an unlawful federal
prison sentence is found in
As one would expect, after the Supreme Court decided Johnson, thousands
of prisoners tried to get permission from our Court (and others) to challenge their
sentences. This is understandable because many of them had been sentenced under
a statute they now knew was, in part, unconstitutional. To the best of my
knowledge, our Court applied Johnson to give relief to inmates exercising their
direct appeal rights, and to those who were within the one-year time limit for
*72
bringing their first collateral attack. E.g., Mays v. United States,
However, prisoners who were already more than a year into serving sentences impacted by Johnson have had a hard time getting their cases considered in the Eleventh Circuit. Shortly after Johnson was decided, this Circuit declined to
allow the Supreme Court’s new rule in Johnson to serve as the basis for a second
or successive motion under
2016), abrogated by Welch v. United States,
As I discussed in my dissent in Franks, the Supreme Court’s decisions in
Schriro v. Summerlin,
Turns out we were wrong. Just shy of a year after Johnson issued, the
Supreme Court decided Welch v. United States,
Fortunately, the Supreme Court was quick to correct this Court’s erroneous
decision on retroactivity—Welch issued just over eight months after Rivero and
three months after Franks. But in the meantime our Court had turned away dozens
of prisoners seeking authorization to file second or successive
Thus, in a compressed timeframe, the Court began reviewing thousands of
applications from inmates seeking to file a second or successive
II. INSTITUTING MERITS REVIEW OF APPLICATIONS SEEKING
AUTHORIZATION TO FILE SECOND OR SUCCESSIVE
Up until the rush of Johnson filings, this Court only reviewed filings from
prisoners asking for permission to bring a second or successive petition to see
whether the prisoner had made a prima facie case. We did this because, again, this
is the task the statute assigns us. See, e.g., In re Moss,
Cir. 2013) (explaining that the panel’s conclusion that the prisoner had made a prima facie showing was “a limited determination” and the District Court would need to do a de novo review); see also Jordan v. Sec’y, Dep’t of Corr., 485 F.3d
1351, 1357–58 (11th Cir. 2007) (holding that District Courts must review de novo
whether a petitioner has actually satisfied the requirements to file a second or
successive application because the statute “restricts us to deciding whether the
petitioner has made out a prima facie case of compliance with the
Before the rush of Johnson filings, we also recognized the practical challenges of conducting a merits review by looking only at the filings asking for permission to bring the action:
When we make that prima facie decision we do so based only on the petitioner’s submission. We do not hear from the government. We usually do not have access to the whole record. And we often do not have the time necessary to decide anything beyond the prima facie question because we must comply with the statutory deadline. See§ 2244(b)(3)(D) (requiring a decision within 30 days after the motion is filed).
Jordan,
Yet after Johnson, this Court began doing exactly what we had previously
explained the constraints on our prima facie review would not permit: deciding the
merits of a prisoner’s Johnson claim. See, e.g., In re Thomas,
(11th Cir. 2016). And the Court did this based on the limited filings, which the *78 prisoner understood was just a permission-seeking document intended to allow him to present the merits of his claims in District Court.
The questions that come up about sentences after Johnson are complicated.
Every ACCA sentence is based on the individual criminal history of the people
serving them. Under ACCA, a prisoner who had in the past committed three or
more crimes that qualified as either a “serious drug crime” or a “violent felony”
got a sentence that had to be at least fifteen years long.
In so doing, this Court effectively reimposed sentences on these inmates
here at the court of appeals level, without ever allowing more thorough District
Court review. We turned away prisoners seeking District Court review by ruling
that their criminal history that had qualified for a fifteen-year plus sentence still
qualified them for the longer sentence under a part of ACCA that survived
Johnson. See, e.g., In re Hires,
As it turned out, the language the Supreme Court invalidated in Johnson also
appeared in other federal sentencing statutes, so our Court began to get filings from
prisoners sentenced under those statutes as well. For example, prisoners like Ms.
Ovalles also sought to challenge sentences imposed under
Also as a result of Johnson’s holding that the language of ACCA was
unconstitutional, it should have surprised no one that our Court would begin to see
challenges to sentences imposed under identical language in the U.S. Sentencing
Guidelines. USSG § 4B1.2(a). Yet here again, where prisoners sought to challenge
their sentences under this guideline, our Court denied them the chance to present
their claims in District Court. In a direct appeal from a sentencing, with full
adversarial testing, this Court said Johnson did not apply because the sentences
were imposed under a Guideline system that was advisory. United States v.
Matchett,
such thin pleadings, and with no adversarial testing was the wrong approach. I was also coming to understand that some of our merits rulings were wrong, and there was little to no recourse for inmates who got bum rulings.
[2] Though I advocated that Johnson applied to the advisory guidelines, see In re Clayton, 829 F.3d
1254, 1256 (Martin J., concurring in the result), our Court’s holding to the contrary carried the
day. See Beckles v. United States,
During this time, many panels, including some I served on, chose to publish
our rulings on these applications. See, e.g., In re Smith,
In a short time span, our Court got thousands of authorization applications raising Johnson claims. But once any panel published a decision holding an inmate’s past conviction still counts as a predicate conviction under the ACCA, it became easier to dispose of new filings. A panel receiving a new application to file a second or successive petition could quickly cite to a published decision rejecting someone else’s application based on its declaration that the two had identical predicate convictions that had been ruled a “violent felony” even after *82 Johnson. Unfortunately, several of these published merits decisions were just plain wrong. That means not only did the mistaken decision deny relief for the inmate who brought the case, but it will continue to require denial of relief for others who would rightly be entitled to it.
III. EXAMPLES OF INCORRECT MERITS DECISIONS ON SECOND OR SUCCESSIVE APPLICATIONS In the rush to conduct these merits reviews of applications to file a second or successive habeas petition within the 30-day statutory time frame, based only on a form filed by a usually uncounseled prisoner, it should come as no surprise that our Court made some mistaken rulings. I think it worthwhile to discuss three examples of such mistakes in more detail here, to aid in understanding the impact of this Court’s chosen method for responding to prisoners seeking relief after Johnson. Unless we overrule them en banc or the Supreme Court corrects our errors, the merits decisions we made under the constraints I have discussed will continue to bar relief for prisoners with meritorious claims.
A. Florida Robbery and Aggravated Assault
In In re Hires, a panel denied Mr. Hires authorization to file a second or
successive habeas motion based on an earlier conviction imposed on him in
Florida.
To be clear, Turner was also wrongly decided. In United States v. Golden,
As for Florida armed robbery, in Dowd, this Court summarily stated in one
sentence that Florida armed robbery “is undeniably” a violent felony and cited to
ACCA’s elements clause.
B. Johnson’s Applicability to the Mandatory Guidelines
See id. at 1351–52. (discussing change in Florida law in 1997). In another case, Judge Jordan
showed that intermediate Florida courts were affirming robbery convictions despite conduct that
did not involve an act causing the victim to fear death or great bodily harm, calling into question
Lockley’s soundness. See United States v. Lee,
As I’ve mentioned, the United States Sentencing Guidelines contained
language identical to what the Supreme Court ruled unconstitutionally vague in the
ACCA statute. This Court upheld guideline sentences imposed in reliance on this
language under the advisory guideline regime. Matchett,
Guidelines—whether mandatory or advisory—cannot be unconstitutionally vague
because they do not establish the illegality of any conduct and are designed to
assist and limit the discretion of the sentencing judge.” Id. But this is not what
Matchett said. Matchett recognized that the vagueness doctrine, and thus Johnson,
*87
applied to “criminal statutes that define elements of a crime or fix punishments.”
Matchett,
This Court alternatively held in Griffin that Welch did not make Johnson
retroactive on all collateral challenges. The Griffin panel said Johnson was
retroactive only where it applied to result in “a substantive change of law [by]
*88
alter[ing] the statutory range of permissible sentences.” Griffin,
Welch explained that a new rule “has a procedural function” if it “alters only
the procedures used to obtain the conviction.”
Even with these flaws in Griffin, it is binding precedent in our Circuit, and we are required to deny leave to file a second or successive petition to any prisoner seeking relief from a sentence imposed under the mandatory guideline system.
C. Florida Manslaughter
My third example of a merits decision that missed the mark came in In re
Burgest,
But Burgest’s reasoning ignored Eleventh Circuit precedent that requires us to apply the categorical approach when deciding whether a prior conviction is a qualifying offense for sentencing enhancement purposes. See Lockley, 632 F.3d at 1241–42 (noting “robbery” is enumerated as a “crime of violence” in the Guideline commentary to § 4B1.2 and stating “[w]here, as here, the Guidelines specifically designate a certain offense as a ‘crime of violence,’ we compare the elements of *90 the crime of conviction to the generic form of the offense as defined by the States, learned treatises, and the Model Penal Code”). When it failed to use the categorical approach, the panel merely relied on the label Florida uses. This practice was explicitly rejected by this Court in Palomino Garcia. See 606 F.3d at 1327–29 (rejecting the government’s argument that a 16-level enhancement under Guideline § 2L1.2 should be affirmed merely because the State called the offense “aggravated assault” and the Guideline definition enumerated “aggravated assault” as a “crime of violence”). A blind reliance on how any given state law labels a crime leads to prisoners who engaged in similar conduct being sentenced differently. That is because conduct criminalized in one state may not be in another. For example, if Florida labeled the act of crossing the street outside of the crosswalk “manslaughter,” that would be enough for the Burgest panel to conclude jaywalking was a “crime of violence.” Our precedent should have stood to defeat this result.
Where other circuits used the categorical approach, they found that Florida’s
manslaughter statute encompasses more acts than those captured in the generic
definition. See United States v. Mendoza-Padilla,
Hires, Griffin, and Burgest are examples of how this Court’s approach to
second or successive applications has harmed prisoners serving long sentences
imposed under ACCA or the Sentencing Guidelines. The Court’s approach in
these cases disregarded our own precedent and rules in search of a quick end to the
flood of applications filed by prisoners raising Johnson claims. How did this
happen? For one thing, I believe the Court tried to get to the merits of these cases
*92
too fast. The statute for reviewing these applications sets a 30-day limit for ruling
on them.
Our nation has experienced an explosion in its prison population over the last twenty years or so. [5] The Supreme Court’s decision in Johnson required federal judges to take a close look at the sentences of thousands of people incarcerated in federal prison. For many inmates, we did not. In our haste, this Court made mistakes (myself included) that always seemed to work against the prisoner. Yet this Court has not just failed to correct its mistakes. It has also acted to set these incorrect decisions in stone.
IV. BARRING MULTIPLE APPLICATIONS TO FILE § 2255 MOTIONS
During the two or so months after the Supreme Court decided Welch, some prisoners were savvy enough to apply to seek relief more than once. This Court then undertook to put an end to this practice, and in doing so, adopted an interpretation of AEDPA that is far removed from the text of the statute. And beyond our Court’s departure from what the statute requires, it also overlooked Supreme Court precedent counseling a path quite different from what this Court chose.
Until recently, federal prisoners at least had the comfort of knowing that
when they were denied leave to file second or successive habeas motions, that
denial was without prejudice and “there [was] no rule against filing multiple
applications for leave to file a successive § 2255 petition.” See In re Anderson,
In order to reach this result, the Baptiste panel first determined
applies to § 2255 motions, even though
(11th Cir. 2016) (Rosenbaum and Jill Pryor, JJ., concurring in result). I add only
that my best understanding is that Baptiste’s interpretation is contrary to Supreme
Court precedent. In Magwood v. Patterson,
The Supreme Court also explained in Magwood that
Nonetheless, the judges of this Court are bound to apply Baptiste. The harm
it does is not hard to see. For example, I will return briefly to Mr. Hires’s case. In
re Hires,
In this way, Baptiste requires a prisoner to bear all consequences of any mistake this Court makes in his case. It would be one thing if this were what AEDPA required of us. But it is not. Baptiste itself was wrongly decided.
To the extent that Baptiste was issued as a work-load management tool for
the courts, it is not necessary. As discussed, AEDPA already allows a very narrow
path for courts to revisit decisions on authorization applications. See
V. A FINAL ROADBLOCK TO RELIEF
I end with the Court’s recent refusal to reconsider United States v. Beeman,
2018). In Beeman, a panel of this Court held that to prove a Johnson claim, a
prisoner had to prove that “it was use of the residual clause that led to the
sentencing court’s enhancement of his sentence.”
Of course, before Johnson District Courts did not say at sentencing which
ACCA clause they relied on because nothing in the law required them to. See
Beeman,
Beeman said its historical-fact test was necessary to preserve the “burden of
proof.”
For those rare prisoners who somehow made it past this Court’s review of
their authorization applications and through the District Court’s front doors, they
will face one last, likely fatal, roadblock. District Courts will now decide whether
prisoners should get the benefit of Johnson without being able to consider
developments in that law intended to help them evaluate who qualifies as a violent
*100
repeat offender. In the end, of the thousands of inmates who filed authorization
applications raising potentially meritorious Johnson claims, very few will ever get
a full review of the merits of their claims and even fewer will get relief. See
Williams,
VI. TODAY’S DECISION IN CONTEXT
As this review shows, our Court has made many missteps after Johnson. It all began, in my view, when we started conducting merits review of prisoners’ cases when all they wanted was permission to file a second or successive § 2255 motion in District Court. We compounded that error when we started publishing those decisions, establishing them as precedent. Then we locked in our mistakes by adopting an interpretation of § 2255, not in keeping with the text of the statute, to prevent prisoners from filing more than one application to file a second or successive petition, even where we wrongly denied their first. And then we denied those prisoners who managed to get full District Court review of their sentences the ability to use current Supreme Court precedent to show they had been sentenced under the ACCA residual clause. At every turn, our rulings put obstacles in the paths of prisoners trying to have their sentences reviewed. These roadblocks mean some prisoners in our Circuit will serve unconstitutional sentences.
Today’s majority en banc opinion decides that the Supreme Court’s decisions in Johnson and Dimaya did not invalidate § 924(c)’s residual clause. Again, I fully join Judge Jill Pryor’s dissent explaining why this is wrong. I note with regret that today’s decision is but a piece of the precedent I reviewed here. This Court has mishandled the application of Johnson to many people who should have benefitted from it, and we do so again today.
My final observation about the majority’s en banc ruling against Ms. Ovalles is to note that the majority opinion makes much of the fact that the government has asked us to abandon the categorical approach in interpreting § 924(c)(3)(B). See Maj. Op. at 29–30. Judge Jill Pryor’s dissent explains why this consideration should not factor into our analysis of the statute at issue. Jill Pryor Dissent at 144– 45. I would add that, when deciding whether Johnson was retroactive, we paid no heed to the government’s concession that it was. See supra at 1–2. If we are going to defer to the government’s view, we should do so whether it advocates for or against relief for the prisoner.
I respectfully dissent from the majority opinion, particularly as it evidences this Court’s failure to properly review and correct unlawful sentences in the wake of Johnson.
*102 JILL PRYOR, Circuit Judge, with whom WILSON, MARTIN, and JORDAN, Circuit Judges, join, dissenting:
This case is about
Before I get to why I think the majority is wrong, let me point out where
we agree. We courts are loath to strike down acts of Congress—and appropriately
so. When a law passed by Congress may be read to have more than one plausible
*103
or “fairly possible” meaning, and one interpretation would cause the law to be
upheld as constitutional while another would require it to be struck down, we are
“obligated to construe the statute” so as to uphold it.
I.N.S. v. St. Cyr.
, 533 U.S.
289, 300 (2001). This is the canon of constitutional avoidance, or constitutional
doubt, as the majority calls it. The Supreme Court recently clarified a significant
limitation on the use of this rule of statutory construction, however: “In the
absence of more than one plausible construction, the canon simply has no
application.”
Jennings v. Rodriguez
,
This case—with all its textual analysis, discussion of canons of statutory
construction, and parsing of precedent—may come across like a purely academic
exercise. In reality, it is anything but. People who are serving sentences of five
*104
years to life under
* * *
No one disputes that if we must use the categorical approach to interpret
So how does the majority get there? Sifting through Supreme Court cases
applying the categorical approach to ACCA and § 16, the majority identifies six
factors that led the Supreme Court to apply the categorical approach in those
*106
instances. It then applies those factors to
I.
To understand why the approach the Supreme Court used in
Dimaya
,
Johnson
, and other precedent interpreting similarly-worded legislation controls the
outcome of this case, some background on that precedent and the other legislation
is unavoidable. In this section I first discuss three statutes, all of which Congress
enacted or revised as part of an overhaul of the criminal code in the mid-1980s:
the statute at issue here,
A. The Statutes
In the mid-1980s, Congress, as part of a movement to get tougher on crime,
passed the Comprehensive Crime Control Act of 1984 (the “CCCA”), which
overhauled the federal criminal code for the first time in over half a century. Pub.
L. No. 98-473, 98 Stat. 1976 (1984);
see also
S. Rep. No. 98-225, at 2 (1983)
(discussing the CCCA’s purpose of “restor[ing] a proper balance between the
forces of law and the forces of lawlessness”). The CCCA “broadly reformed the
federal criminal code in such areas as sentencing, bail, and drug enforcement, and
. . . added a variety of new violent and nonviolent offenses.”
Leocal
,
The statute at issue here,
For purposes of this subsection the term “crime of violence” means an offense that is a felony and—
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) 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 term “crime of violence” means— (a) an offense that has as an element the use, attempted use, or threatened
use of physical force against the person or property of another, or (b) any other offense that is a felony and 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.
Since passage of the CCCA, § 16’s general “crime of violence” definition
“has . . . been incorporated into a variety of statutory provisions, both criminal and
noncriminal.”
Leocal
,
In fact, for the vast majority of instances where § 16’s definition is
incorporated into the criminal code, the “crime of violence” element is committed
at the same time as the offense’s other elements. For example,
Yet another (and for our purposes, the last) CCCA statute to address crimes of violence is ACCA. ACCA, enacted as part of the CCCA, imposes a mandatory 15-year term of imprisonment on a person convicted of being a felon in possession of a firearm who previously was convicted of three serious drug offenses, violent felonies, or both. ACCA defines “violent felony” like this:
[A]ny crime punishable by imprisonment for a term exceeding one year . . . that—
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]
B. The Categorical Approach that Has Governed All Three Statutes
When Congress passed the CCCA, in which it revised
When in Taylor the Supreme Court first described the categorical approach, it did so in the context of ACCA’s enumerated crimes clause. The Court based its holding—that a categorical, rather than a factual or conduct-based, approach must be used—primarily on ACCA’s text as a whole, but also on ACCA’s legislative history and because construing it with a conduct-based approach would lead to practical problems in criminal proceedings. The Court first explained that ACCA’s text “generally supports” a categorical approach because it refers to “convictions,” not commissions of an offense, and because its elements clause refers to a statute’s “element[s],” not to any particular facts or conduct. Id. “Read in this context,” the Court said, the enumerated crimes clause should be read categorically. Id. at 600-01. Second, the Court noted, “the legislative history of [ACCA] shows that Congress generally took a categorical approach to predicate offenses.” Id. at 601. Third, the Court observed that “the practical difficulties and potential unfairness of a factual approach are daunting.” Id. Specifically, the Court worried that a conduct-based approach would lead to mini-trials where the government would seek to prove to a jury, and the defense would seek to rebut, the circumstances of prior—maybe even long prior—offenses. Id. at 601-02. The Court also doubted that a sentencing court, rather than a jury, would be able to make these findings because doing so might draw a Sixth Amendment challenge. Id. at 602.
After
Taylor
, the Supreme Court held that the categorical approach must be
applied to ACCA’s elements and residual clauses as well.
See Curtis Johnson v.
United States
,
In contrast to its multi-factored reasoning in
Taylor
, when the Supreme
Court first construed § 16, it applied the categorical approach based
solely
on the
text of the statute, without reference to legislative history or practical concerns.
And it said this construction was not merely optimal, but required. Specifically, in
Leocal
, a unanimous Supreme Court explained that “[i]n determining whether the
petitioner’s conviction falls within the ambit of § 16, the statute directs our focus to
*116
the ‘offense’ of conviction.”
Leocal
,
When it came to construing
We employ this categorical approach because of the statute’s terms: It asks whether [the defendant] committed “an offense” that “has as *117 an element the use, attempted use, or threatened use of physical force against the person or property of another,” or that “ by its nature , involves a substantial risk that physical force against the person or property of another may be used.”
Id.
(emphasis in original) (quoting
C. Johnson , Dimaya , and the Role of the Canon of Constitutional
Avoidance
The majority agrees that if the categorical approach must be used, then based
on
Dimaya
After wrestling with ACCA’s residual clause on several occasions, the
Supreme Court in
Johnson
struck it as void for vagueness.
Justice Alito dissented in Johnson . He argued that the Court should have employed the canon of constitutional avoidance to save ACCA’s residual clause by adopting a conduct-based approach like the majority adopts here. Id. at 2578 (Alito, J., dissenting). Justice Alito noted that ACCA’s residual clause referred to “ conduct that presents a serious potential risk of physical injury to another” and therefore plausibly could refer “to things done during the commission of an offense that are not part of the elements needed for conviction.” Id. (emphasis added). The majority rejected his approach, noting that the government had not urged the Court to abandon the categorical approach and explaining that “ Taylor had good reasons to adopt” it, including the statute’s text and practical problems resulting from a conduct-based approach. See id. at 2562 (majority opinion).
When
Johnson
was decided, though, it was an open question whether extra-
textual factors—such as the government’s concessions and practical
considerations—could play a role in the decision whether to invoke the canon of
constitutional avoidance to save a statute. In
Zadvydas v. Davis
, the Supreme
Court construed an INA statute providing that a noncitizen under an order of
removal whom the government has not removed within the 90-day statutory
removal period “‘may be detained beyond the removal period.’”
This year, however, the Supreme Court put any lack of clarity in
Zadvydas
to rest. In
Rodriguez
, the Court clarified that “[t]he canon of constitutional
avoidance comes into play
only
when, after the application of ordinary textual
analysis, the statute is found to be susceptible of more than one construction. In
the absence of more than one plausible construction, the canon simply has no
application.”
Rodriguez
,
Later in the term, the Supreme Court struck § 16’s residual clause as
unconstitutionally vague.
See Dimaya
,
Again, as in
Johnson
, a dissent argued that the Court should have employed
the canon of constitutional avoidance to save the residual clause.
Id.
at 1254-59
(Thomas, J., dissenting). Justice Thomas, joined by Justices Kennedy and Alito,
announced that “[t]he text of
II.
The majority, in an attempt to salvage
To reach this result, the majority distills from
Taylor
and its progeny a
multi-factor test for deciding whether we should apply the categorical approach to
A. The Text of
Categorical Approach Is Required.
The question we must ask in this case is whether the text of
First of all, the Supreme Court has already told us that a categorical
approach is the only approach we can take to this text. In
Leocal
, the Supreme
Court unanimously explained that the text of
The reasoning behind
Leocal
’s holding applies with at least equal force to
For purposes of this subsection the term “crime of violence” means an offense that is a felony and—
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) 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.
There is additional textual support for a categorical reading of
The text of
None of the majority’s three text-based factors convinces me that
The majority’s three textual considerations or factors are: “the text of [ACCA’s] operative provisions focused not on conduct, but rather on ‘convictions’—and thus . . . solely on formal legal elements” (factor 2 of the majority’s six-factor test); ACCA’s and § 16’s “definitional provisions used terms and phrases like ‘offense,’ ‘felony,’ and ‘by its nature,’ which . . . pointed toward a categorical (rather than conduct-based) inquiry” (factor 3); and “those statutes *130 lacked any reference to the underlying crime’s commission or circumstances” (factor 4). Maj. Op. at 27. I address them in turn.
1. The “Operative Provision” of
In its analysis of
I find the majority’s argument unpersuasive for at least two reasons. First,
setting aside for now comparisons to other statutes, the language in
Second, and relatedly, by comparing
A look at some examples of § 16’s incorporation into the criminal code
proves both points. By examining § 16’s incorporation into the criminal code, we
see how conduct-based elements and categorical elements exist side-by-side
without the former allowing a conduct-based reading of the latter. And we see just
how similar
Let’s take, for example,
2. The Phrases “Offense that Is a Felony” and “By its Nature” Require a Categorical Approach toSection 924(c) ’s Residual Clause.
Next, the majority examines the words “offense,” “felony,” and “by its nature,” concluding that although in some contexts they may signal a categorical reading, in this context they do not necessarily. I am unpersuaded.
The majority says that “offense” plausibly can be read to refer to the
defendant’s conduct, pointing to other contexts in which “offense” denotes
conduct. In the case the majority relies primarily upon,
Nijhawan
, the Supreme
Court recognized “the linguistic fact” that in ordinary speech words such as
“offense” or “felony” can refer to a person’s conduct rather than a statute of
conviction.
an offense that— (i) involves fraud or deceit in which the loss to the victim or victims exceeds §10,000; or
(ii) is described in section 7201 of Title 26 (relating to tax evasion)
in
which
the revenue loss to the Government exceeds $10,000[.]
As I explained above, applying this same logic to
Aside from its reading of “offense,” the majority appears to acknowledge
that the phrase “by its nature” is best read to require a categorical approach. But,
*137
says the majority, Justice Thomas, in dissent in
Dimaya
, makes some good points
about the meaning of the word “nature” that make a conduct-based reading
possible. “Nature,” the majority says, might mean “the essential character or
constitution of something,” and that “something” might be “particular acts” rather
than the elements of a crime of conviction. Maj. Op. at 35. The problem with the
majority’s argument is that the text of
The majority also credits Justice Thomas’s suggestion that “the words ‘by its nature,’ ‘substantial risk,’ and ‘may’ would mean only that an offender who engages in risky conduct cannot benefit from the fortuitous fact that physical force was not actually used during his offense.” Maj. Op. at 36 (quoting Dimaya , 138 S. Ct. at 1254). Taken separately, I agree that these words and phrases could mean that. But together? No way.
Again, the residual clause defines “crime of violence” as “an offense that is
a felony and . . . that by its nature, involves a substantial risk that physical force . . .
may be used” during commission of the offense.
3.
Third, in its reach to find another meaning in the statute, the majority
considers as a factor the presence or absence of “any reference to the underlying
crime’s commission or circumstances,” a factor that it says it distills from
Dimaya
.
Maj. Op. at 27. The majority argues that
* * *
The majority’s strained reading of
B. The Majority’s Extra-textual Factors Do Not Support Application of a
Conduct-Based Approach.
Even if we could set aside the text of the statute (which of course we may
not do), the majority’s three “practical considerations” lacking a textual hook
support no different reading of
Before I get into the majority’s factors, I pause to note that although the
majority claims to have distilled its factors from
Taylor
and its progeny, absent
from the majority’s consideration is one of
Taylor
’s three reasons for applying the
categorical approach to ACCA: that “the legislative history of the enhancement
statute shows that Congress generally took a categorical approach to predicate
offenses.”
The Senate stated that the purpose of its revision was to “ensure that all
persons who commit federal crimes of violence, including those crimes
set forth in
*142
statutes
which already provide for enhanced sentences for their commission with a
dangerous weapon, receive a mandatory sentence.”
Id.
(emphasis added). The
Senate sought to do so in response to the Supreme Court’s body of cases that had
“negated [
Relatedly, our court and nearly every other federal court in the nation has
consistently applied the categorical approach to
The canon of constitutional avoidance “rest[s] on the reasonable
presumption that Congress did not intend the alternative which raises serious
constitutional doubts. The canon is thus a means of giving effect to congressional
intent, not of subverting it.”
Martinez
,
I now turn to the majority’s extra-textual factors.
1. Whether the Government Has Asked Us to Abandon the Categorical
Approach Has No Relevance to the Constitutional Avoidance Analysis.
The first factor the majority considers is that here, unlike in
Johnson
and
Dimaya
, the government has argued for a conduct-based approach: “[T]he
government has expressly (and at length) urged us to abandon the categorical
approach to
Second, and more importantly, as the majority itself observes, this factor is not really “interpretive,” id. at 29; and so it is “an odd place to start in interpreting a statute.” Id. Under Rodriguez it is clear that the government’s suggestion (or lack of it) that we should apply a conduct-based approach to a statute is irrelevant to whether the text of the statute plausibly can be read to permit such an approach.
2. The Majority’s Practical Problems and Sixth Amendment Factors in Reality Constitute One Irrelevant Factor that Fails to Support the Majority’s Position.
The majority’s fifth factor—the supposed lack of practical problems
associated with a conduct-based approach—is yet another variety of extra-textual
*145
consideration that the Supreme Court in
Rodriguez
told us we cannot consider.
See
Rodriguez
,
It certainly was possible to apply a conduct-based approach to ACCA’s
residual clause and
The same is true for
The majority’s fifth and sixth factors, then, amount to one concern: that given the Sixth Amendment’s dictates there may be serious practical hurdles to proving prior convictions.
Turning to that concern, the majority distinguishes ACCA and § 16, on the
one hand, from
And, contrary to the majority’s suggestion, practical problems do abound
with a conduct-based approach to
What’s more, given the abstract nature of the residual clause inquiry I am
not nearly as confident as the majority is that instructions can be fashioned to guide
juries appropriately on—or that juries are well equipped to decide—what kind of
conduct satisfies
Finally, the majority’s ultimate disposition of Ms. Ovalles’s appeal proves
my point about practical difficulties by highlighting another problem with a
conduct-based approach: appeals. The majority, sitting as an appellate court,
affirms Ms. Ovalles’s
To “confirm” its conclusion that the elements of the attempted carjacking
offense to which Ms. Ovalles pled guilty satisfied the conduct-based residual
clause element, the majority considers the totality of Ms. Ovalles’s and her co-
conspirators’ conduct. But under the majority’s own holding, whether the
defendant engaged in conduct that satisfies the “substantial risk” standard is an
element of the
Will we uphold other convictions on appeal under this same flawed logic?
Many defendants like Ms. Ovalles were convicted when
McGuire
required use of
the categorical approach. Under
McGuire
, the district court was tasked with
deciding as a matter of law whether the defendant’s charged predicate offense
satisfied the residual clause.
III.
The majority claims to be avoiding one constitutional problem—the
unconstitutional vagueness of
Our displeasure with the categorical approach and the results of its
application to residual clauses does not permit us to jettison it. The categorical
approach is dictated by the text of the statute and Congress’s intent to impose
increased penalties based on the violation of certain predicate statutes. If Congress
wants to change course, or enact a residual clause that comports with the dictates
of due process, it can readily do so.
See McCarthan v. Director of Goodwill
Indust.-Suncoast, Inc.
,
In my view, the majority’s erroneous decision perpetuates unconstitutional
sentences for inmates sentenced under
I would not throw out the plain text of
Notes
[*] Senior Circuit Judge Hull elected to participate in this decision, pursuant to
[1] We have at times referred to these as the “use-of-force” and “risk-of-force” clauses,
respectively.
See Ovalles v. United States
,
[2] The panel separately held that Ovalles’s attempted-carjacking offense qualifies as a “crime of
violence” under the elements clause,
see
[3] In a
[4] Although
Taylor
involved the ACCA’s enumerated-offenses clause, the Supreme Court later
extended the categorical approach (albeit without explanation) to the ACCA’s residual clause.
See James v. United States
,
[5] Although the parties in
McGuire
dickered over whether a pure categorical approach or a
“modified” categorical approach should govern
[6] The dissent thinks it inconceivable that that the word “offense” could require the categorical
approach for cases arising under
[7] A point of clarification: The dissent charges—as if it were a bad thing—that our opinion
“focuses solely on § 16’s incorporation into the INA.” Dissenting Op. of J. Pryor at 110;
see
also id.
at 123 n.8. But of course it does—by design and with good reason. We have so
“qualif[ied our] references to
[8] We are unpersuaded by Ovalles’s assertion (which the dissent echoes,
see
Dissenting Op. of J.
Pryor at 148–49) that a conduct-based approach would require hopelessly complex and
ineffective jury instructions about the crime-of-violence element. The district court can simply
instruct jurors that they must find beyond a reasonable doubt that the underlying offense―the
defendant’s commission of which they must already have found in order to satisfy the first
element―“involve[d] a substantial risk that physical force against the person or property of
another may [have] be[en] used in the course of committing the offense.”
[9] Needless to say, we reject the dissent’s charge that we have “reach[ed]” out to “effectively
rewrite[]”
[10] One brief word in conclusion: The dissent repeatedly criticizes our reliance on what it calls
“extra-textual factors” in determining whether
[1]
[2] U.S. Sentencing Comm’n, Report to the Congress: Career Offender Sentencing Enhancements 39 (2016).
[3] Id.
[4] See U.S. Sentencing Comm’n, Recidivism Among Federal Offenders: A Comprehensive Overview 5, 18–19, 27 (2016).
[5] Id. at 18.
[6] Id.
[7] Id. at 19.
[8] U.S. Sentencing Comm’n, Report to the Congress , supra note 2, at 42.
[9] Id.
[10] Id.
[11] Id.
[12] See id. at 38.
[13] Id. at 42.
[14] See U.S. Sentencing Comm’n, Recidivism Among Federal Offenders , supra note 4, at 20.
[15] Id.
[16] Id. ; see also U.S. Sentencing Comm’n, The Past Predicts the Future: Criminal History and Recidivism of Federal Offenders 12 (2017) (“Offenders convicted of a firearms offense had the highest rearrest rate (68.4%]), followed by offenders convicted of a violent offense (64.1%) . . . .”).
[17]
Graham v. West Virginia
,
[18]
Id.
(collecting cases);
see also Spencer v. Texas
,
[19] See, e.g. , H.R. Rep. No. 98-1073, at 2 (1984) (relying on “extensive studies on recidivism” to justify an earlier version of the Armed Career Criminal Act). See generally U.S. Sentencing Comm’n, Mandatory Minimum Penalties for Firearms Offenses in the Federal Criminal Justice System (2018).
[20]
[21]
[22]
[23]
[24]
Id.
,
invalidated by Johnson v. United States
,
[25]
[26]
[27]
United States v. Davis
,
[28] Id. at 595.
[29] Sheldon A. Evans, Punishing Criminals for Their Conduct: A Return to Reason for the Armed Career Criminal Act , 70 Okla. L. Rev. 623, 626 (2018).
[30] Id. at 645
[31]
See Sessions v. Dimaya
,
[32]
United States v. Vann
,
[33]
United States v. Aguila-Montes de Oca
,
[34]
[35] See id. at 2560 (collecting cases).
[36]
See Sykes v. United States
,
[37]
Johnson
,
[38] See, e.g. , Hylor v. United States , ___ F.3d ____, No. 17-10856, slip op. at 10–13 (11th Cir. July 18, 2018) (Jill Pryor, J., concurring) (opining that attempted murder and attempted armed
[42] Evans, Punishing Criminals for Their Conduct , supra note 29, at 628.
[43]
Almendarez-Torres
,
[44]
Spencer
,
[45]
State v. Findling
,
[46] King, Sentencing and Prior Convictions , supra note 18, at 553.
[47] 1925 Tex. Crim. Stat. art. 62;
see also Spencer
,
[48]
Kelley v. State
,
[49]
[50]
Id.
at 455;
cf. Carter v. Commonwealth
,
[51]
Crocker v. State
,
[52]
[53] Id. at 393.
[54]
[55] Id. at 82.
[56]
[57]
Moore v. State
,
[58]
Weiss v. State
,
[59]
See People v. Gallardo
,
[60] Id.
[61]
See Skinner v. State
,
[62]
See Walker v. Hale
,
[63]
See
[64]
See Brown v. State
,
[65] See, e.g. , Dubroff, supra note 45, at 337 (citing the “prejudice engendered by proving guilt for the present offense simultaneously with the issue of recidivism” under the common-law method).
[66]
Spencer
,
[67] See generally Nancy J. King, Juries and Prior Convictions: Managing the Demise of the Prior Conviction Exception to Apprendi, 67 SMU L. Rev. 577 (2014) (outlining procedures that preserve the right to a jury trial in recidivism proceedings while limiting prejudice to defendants).
[68] See U.S. Sentencing Comm’n, 2017 Sourcebook of Federal Sentencing Statistics fig. C, https://www.ussc.gov/research/sourcebook-2017.
[69]
See Pitcock v. State
,
[70]
[71] Id. at 559.
[72] Id. at 566–67.
[73] Id. at 569 (Stewart, J., concurring); see also id. (observing that many states had recently modified or abandoned the common-law method).
[74] David S. Sidikman, Note, The Pleading and Proof of Prior Convictions in Habitual Criminal Prosecutions , 33 N.Y.U. L. Rev. 210, 215–16 (1958) (capitalization omitted) (explaining that judicial assessment “should be preferred over the common-law” method and that “a jury trial should not be considered essential where the issue is conviction of prior offenses”); cf. Radice,
[78] Restoring the Armed Career Criminal Act, S. 3335, 115th Cong. § 2 (2018).
[79]
[80]
[81]
[82]
[83]
[84]
[85]
See
[86] Utah Code § 76-6-409.8(2).
[87]
[88]
[89]
See Spencer
,
[1] In Saint Fleur, I agreed with the panel opinion that Mr. Saint Fleur’s
[3] Judge Wilson and I discussed this issue in greater depth in our concurring opinions in Williams,
[4] I did understand at the time, however, that this Court’s decision in United States v. Lockley,
[5] See E. Anne Carson, Bureau of Justice Statistics, Prisoners in 2016 1 (Aug. 7, 2018), https://www.bjs.gov/content/pub/pdf/p16.pdf.
[1] After
Johnson
was decided but before the Supreme Court issued its decision in
Dimaya
, a panel
of this court rejected Ms. Ovalles’s constitutional vagueness challenge to the residual clause of
[2] “Prior to 1984,
[3] Other incorporations of § 16 in this manner abound.
See, e.g.
,
[4] I use “elements” here to describe the set of facts and circumstances the government must prove
to obtain a conviction. I recognize that the Supreme Court has characterized
[5] The majority therefore is incorrect when it says that the Supreme Court “conceived” the categorical approach in Taylor , see Maj. Op. at 20, because in Taylor the Supreme Court explained that the statute “always” has embodied the categorical approach. In other words, the categorical approach is not a pure judicial creation; rather, it is a judicial explanation of congressional intent.
[6]
See United States v. Taylor
,
[7]
Dimaya
resulted in a somewhat fractured decision. Justice Kagan, writing for a majority of the
Court, struck
[8] Although
Dimaya
interpreted
[9] When the majority says that “[o]nly a plurality of the [Supreme] Court concluded that [
[10] At the same time, the majority ignores the highest and best guidance we have—the Supreme Court’s unanimous statement in Leocal that the precise words we are tasked with interpreting in this case require a categorical approach.
[11] The majority also cites
United States v. Hayes
,
[12] In holding that ACCA’s residual clause must be read with a categorical approach and defined by the “ordinary case” of an offense, the Supreme Court described an offense that would fall within the residual clause as one “that, by its nature , presents a serious risk of injury to another”—categorical language—even though ACCA does not contain that phrase. James , 550 U.S. at 209.
[13] The majority describes its concerns in terms of avoiding sentencing-judge-found facts, but of
course the same concern exists in the
[14] It is no answer to say that the word “may” in the statute does not create an inquiry distinct
from the jury’s inquiry about “substantial risk” because “[i]t is our duty to give effect, if
possible, to every clause and word of a statute.”
Duncan v. Walker
,
[15] That is not all. Deeming the