After SCOTUS ruling, 7th Circuit reaffirms ‘crime of violence’ vague

The 7th Circuit Court of Appeals will stick with its initial decision to vacate and remand two men’s sentences after the United States Supreme Court concluded that the definition of “crime of violence” in 18 U.S.C. § 924(c)(3)(B) was unconstitutionally vague.

Writing in a consolidated appeal of USA v. Douglas Jackson, 15-3693 and USA v. Antwon D. Jenkins, Circuit Judge Michael Kanne noted that the 7th Circuit held in United States v. Cardena, 842 F.3d 959 (7th Cir. 2016) that the statute, which partially defines a crime of violence, was unconstitutionally vague.

In relying on that precedent, the 7th Circuit vacated both Jenkins’ and Jackson’s convictions for using or carrying a firearm to commit a federal crime of violence. Jackson had been convicted and sentenced in the District Court for the Northern District of Indiana.

The 7th Circuit consolidated the appeals and reconsidered after the Supreme Court vacated and remanded both decisions in light of its decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018). The Supreme Court, Kanne wrote, splintered on rationales as to the vagueness of the statute, which defined a crime of violence as 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.”

“Thus, after Dimaya, future residual-clause challenges faced an uncertain future. Some members of the Court were signaling increased discomfort with the use of the categorical approach. And the courts of appeals took notice. The First, Second, and Eleventh Circuits all held that § 924(c)(3)(B) could be interpreted constitutionally by rejecting application of the categorical approach,” the panel wrote. “But the circuits with pre-Dimaya precedent finding § 924(c)(3)(B) unconstitutionally vague did not reverse themselves in anticipation of the Court’s next opinion.

“In [United States v. Davis, 903 F.3d 483 (5th Cir. 2018)], the Court ended the waiting. Writing that ‘a vague law is no law at all,’ Justice Gorsuch found that § 924(c)(3)(B)’s language required use of the categorical approach and thus that it was unconstitutionally vague. Although a case-specific approach would alleviate the vagueness, the Court concluded that ‘the statute simply cannot support’ the use of that approach,” Kanne continued.

Davis vindicates our opinion in Cardena, and so the question the Court remanded for us to consider in these appeals has now been answered by the Court itself. Nothing remains to decide with respect to Jenkins and Jackson. We will vacate and remand for full resentencing,” the panel concluded.

The 7th Circuit thus vacated and remanded both Jenkins’ and Jackson’s convictions. It likewise vacated and remanded in Jackson’s case for resentencing.

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