November 2, 2018
from the United States District Court for the Northern
District of Indiana, South Bend Division. No. 3:15-cr-06-l -
Robert L. Miller, Jr., Judge.
from the United States District Court for the Southern
District of Illinois. No. 3:12-cr-30239-l - David R. Herndon,
Ripple, Kanne, and Rovner, Circuit Judges.
United States v. Cardena, 842 F.3d 959 (7th Cir.
2016), we held that 18 U.S.C. § 924(c)(3)(B)-which
partially defines "crime of violence" for §
924-is unconstitutionally vague. On February 24, 2017, we
relied on Cardena to vacate Antwon Jenkins's
conviction under § 924(c)(1)(A)(ii). United States
v. Jenkins, 849 F.3d 390, 394 (7th Cir. 2017). We
vacated Douglas Jackson's conviction under the same
statutory provision on August 4, 2017. United States v.
Jackson, 865 F.3d 946, 954 (7th Cir. 2017). Those
opinions provide a summary of the underlying conduct and
procedure that brought the appeals before us.
14, 2018, the Supreme Court vacated and remanded both
decisions for reconsideration in light of its decision in
Sessions v. Dimaya, 138 S.Ct. 1204 (2018). We
consolidated the appeals and heard argument on
Dimaya''s relevance. On January 4, 2019, the
Supreme Court granted certiorari in United
States v. Davis, 903 F.3d 483 (5th Cir. 2018) (also
holding that § 924(c)(3)(B) is unconstitutionally
vague). We stayed further consideration of the appeals and
waited for the Supreme Court's decision. Now, the Supreme
Court has found that § 924(c)(3)(B) is unconstitutional.
139 S.Ct. 2319 (2019).
involves the Supreme Court's latest discussion of whether
statutes that enhance punishment for "crimes of
violence" are unconstitutionally vague. In Johnson
v. United States, the Court invalidated the residual
clause of the Armed Career Criminal Act ("ACCA"),
which provided a catch-all definition for violent felonies in
the ACCA context. 135 S.Ct. 2551 (2015). In United States
v. Vivas-Ceja, 808 F.3d 719 (2015), we relied upon
Johnson to find a similar provision-the definition
of "crime of violence" for much of the federal
criminal code found at 18 U.S.C. § 16(b)-to be
unconstitutional. And, in Cardena, we invalidated
§ 924(c)(3)(B) because it is indistinguishable from the
clause we invalidated in Vivas-Ceja.
the Court decided Dimaya, which involved the
definition of "crime of violence" found in 18
U.S.C. § 16.138 S.Ct. at 1204. Once again, a majority of
the Court found that the statutory definition was too vague.
But the Court splintered among several rationales. Four
justices-led by Justice Ka-gan-essentially found that the
Johnson rationale controlled. Id. at
1210-23. In a separate concurrence, Justice Gorsuch agreed
that § 16(b) was unconstitutionally vague but indicated
a willingness to reconsider application of the categorical
approach (which requires courts to consider an abstraction of
a crime as opposed to the facts of the defendant's actual
conduct) in a future case. Id. at 1223-34. In
dissent, Chief Justice Roberts argued that § 16(b)
doesn't create the same constitutional issues that
troubled the Court in Johnson. Id. at 1234-41. And
Justice Thomas dissented separately to argue that the Due
Process clause does not prohibit vague laws and to argue
that, regardless, § 16(b) could be interpreted in a
constitutional way (by jettisoning the categorical approach).
Id. at 1242-59.
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. United
States v. Douglas, 907 F.3d 1 (1st Cir. 2018);
Ovalles v. United States, 905 F.3d 1231 (11th Cir.
2018); United States v. Barrett, 903 F.3d 166 (2d
Cir. 2018). 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. United States v. Davis,
903 F.3d 483 (5th Cir. 2018); United States v.
Salas, 889 F.3d 681, 685 (10th Cir. 2018).
Davis, 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. Davis, 139 S.Ct. at 2323.
Although a case-specific approach would alleviate the
vagueness, the Court concluded that "the statute simply
cannot support" the use of that approach. Id.
at 2327. Accordingly, § 924(c)(3)(B) is
unconstitutionally vague. Id. at 2336-55.
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. See United
States v. Cureton, 739 F.3d 1032, 1045 (7th Cir. 2014)
(explaining that a district court's sentencing
determination is necessarily holistic, and so when part of a
sentence is vacated, the court is entitled to resentence on
accordance with our February 24, 2017, opinion, we VACATE
Jenkins's conviction for using or carrying a firearm to
commit a federal crime of violence and REMAND for
resentencing. 849 F.3d at 395. Likewise, we VACATE
Jackson's conviction for using or carrying a firearm to
commit a federal crime of violence and REMAND for
resentencing. 865 F.3d at 956. And, for the reasons expressed
in our August 4, 2017, opinion, we also ...