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.