Case: 17-10172 Date Filed: 10/04/2018 Page: 1 of 153 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 17-10172 ________________________ D.C. Docket Nos. 1:16-cv-02392-TWT; 1:10-cr-00305-TWT-RVG-1 IRMA OVALLES, Petitioner - Appellant, versus UNITED STATES OF AMERICA, Respondent - Appellee. ________________________ Appeal from the United States District Court for the Northern District of Georgia ________________________ (October 4, 2018) Before ED CARNES, Chief Judge, TJOFLAT, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, and HULL, * Circuit Judges. NEWSOM, Circuit Judge: * Senior Circuit Judge Hull elected to participate in this decision, pursuant to 28 U.S.C. § 46(c). Case: 17-10172 Date Filed: 10/04/2018 Page: 2 of 153 The question before us is whether one of the key provisions of an important federal criminal statute, 18 U.S.C. § 924(c), is unconstitutionally vague. As relevant to our purposes, § 924(c) makes it a federal offense—punishable by a term of imprisonment ranging from five years to life—for any person to use, carry, or possess a firearm in connection with a “crime of violence.” 18 U.S.C. § 924(c)(1)(A). The provision challenged here—§ 924(c)(3)’s “residual clause”— defines the term “crime of violence” to mean a felony “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Id. § 924(c)(3)(B). This case is in some respects a successor to Johnson v. United States, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018), in which the Supreme Court invalidated similarly-worded residual clauses on vagueness grounds. In the wake of those decisions, all here seem to agree that if § 924(c)(3)’s residual clause is interpreted to require determination of the crime-of-violence issue using what (in court-speak) has come be called the “categorical approach,” the clause is doomed. As the Supreme Court has explained and applied it, this categorical approach—which the provisions at issue in both Johnson and Dimaya were deemed to embody—does not permit consideration of a defendant’s specific conduct or how she “might have committed [her crime] on a particular occasion,” but rather focuses exclusively on “how the law defines the offense” as a formal 2 Case: 17-10172 Date Filed: 10/04/2018 Page: 3 of 153 matter and whether, in the abstract, “the kind of conduct that the crime involves in the ordinary case” meets the statutory standard. Johnson, 135 S. Ct. at 2557 (internal quotation marks and citation omitted). In both Johnson and Dimaya, the Court concluded that application of a standard that requires a reviewing court “to ‘imagine’ an ‘idealized ordinary case of the crime’” rendered the challenged clauses impermissibly vague. Dimaya, 138 S. Ct. at 1214 (quoting Johnson, 135 S. Ct. at 2557–58). On the flip side, Johnson and Dimaya also make clear—and it is common ground here—that if § 924(c)(3)’s residual clause is instead interpreted to incorporate what we’ll call a “conduct-based approach” to the crime-of-violence determination, then the provision is not unconstitutionally vague. As its ...
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