Docket – January 24, 2019

4th U.S. Circuit Court of Appeals

United States v. Simms (P), 4th Cir. (Motz) from EDNC at Greenville (Boyle).

The text and structure of 18 U.S.C. § 924(c)(3)(B) plainly set forth a definition of “crime of violence” that fails to comport with due process.

Consider a situation where a defendant is charged with possessing a gun in conjunction with witness tampering. To evaluate whether witness tampering satisfies the “crime of violence” element of a § 924(c) violation, a court must assess whether the ordinary case of witness tampering, with or without a firearm, “involves a substantial risk [of] physical force.” And when divining the conduct entailed in the crime’s ordinary case, the court must utilize some as-yet-unspecified method. The statute provides no guidance for this abstract inquiry. Instead, § 924(c)(3)(B) effectively requires judges to define the scope of criminal liability, and it directs them to do so using an unmoored, subjective abstraction that deprives the public of fair notice.

Where a statute requires courts to assess both an ordinary-case requirement and an ill-defined risk threshold, it is unconstitutional. That principle controls here.

The court cannot accept the government’s invitation to abandon the settled meaning of the statute – which the government concedes is unconstitutionally vague – and employ a new definition of “crime of violence.” The text, structure, and context of § 924(c)(3)(B) clearly mandate use of the ordinary-case categorical approach, as do all relevant precedents.

The court is mindful of the consequences of holding § 924(c)(3)(B) unconstitutional. The provision is part of a widely used federal criminal statute and has been incorporated into other parts of the federal criminal code. However, § 924(c)(3)(B) is the last Johnson domino to fall. Nothing in this holding restricts the broad discretion of district judges to make case-by-case sentencing determinations. And if Congress deems it appropriate to replace § 924(c)(3)(B) with a statute that achieves similar aims with sufficiently definite terms, the Due Process Clause poses no obstacle.

Reversed and remanded by 8-7 majority. One concurring opinion; three dissenting opinions.

Virginia Circuit Courts

Damtew v. Jeng, Fairfax (Smith).

A defendant could not appeal from an adverse auto crash judgment in the general district court because he failed to post bond or prove indemnity by his insurer.

To qualify for the bond exception under Code §16.1-107, the defendant had to provide “written irrevocable confirmation of coverage” in the amount of the judgment. In this case, he provided   an uncorroborated document from the auto maker, which isn’t in the business of insuring drivers and identified a different company as the defendant’s insurer. It’s not the court’s duty to investigate the internal policies and agreements that form the relationship between the companies and the defendant. Rather, the burden is on the defendant to provide irrevocable confirmation, in writing, and within the statutory appeal period, that assures the court that the appellee will receive the full amount of the judgment if the court rules in her favor on appeal.

Contrary to the defendant’s argument, a letter authored by the “wrong party” is not a minute error. It precludes the court from exercising jurisdiction over the case.

Motion to dismiss appeal granted.

Categories: Daily Dockets

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