Why the Categorical Approach Should not be Used When Determining Whether an Offense is a Crime of Violence Under the Residual Clause of 18 U.S.C. § 924(c)
67 Am. U. L. Rev. 1989 (2018).
*Senior Projects Editor, American University Law Review, Volume 68; J.D. Candidate, May 2019, American University Washington College of Law; B.A., Sociology, 2015, Fordham University. Many thanks to my father, Robert Richardson, and my faculty advisor, Professor Brent Newton, for their meticulous review throughout the writing process. I am also grateful for the hard work of staff of the American University Law Review and for the constant support and encouragement from the rest of my family and friends—particularly my grandfather, Walter Landergan, who took the very first LSAT.
Courts often use a controversial tool called the “categorical approach” to determine whether a defendant’s prior conviction qualifies as a “violent felony” or a “crime of violence.” Many federal criminal statutes require the use of the categorical approach because they provide for increased penalties if a defendant has prior convictions for violent crimes. For example, under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), a defendant who commits a firearms offense and also has three prior convictions for violent felonies or serious drug offenses faces a minimum mandatory sentence and a higher maximum possible sentence than would have been the case had she simply committed the firearms offense without the prior convictions. Because of the significant effect that a conviction for a violent crime can have, the determination of whether an offense falls within the definition of “violent crime” is vital. The Supreme Court has made clear that it is the judge, using the so-called “categorical approach,” who determines whether a prior conviction was for a violent felony under the ACCA, or a crime of violence under statutes such as 18 U.S.C. § 16. The categorical approach requires a court to consider the statutory definition of the crime at issue, rather than the actual facts that gave rise to the conviction, to determine whether the prior conviction qualifies as a violent felony under the ACCA.
In its recent decision in Johnson v. United States, however, the Court determined that the use of the categorical approach rendered part of the definition of violent felony—the “residual clause”—unconstitutionally vague. Similarly, in Sessions v. Dimaya, the Court decided that 18 U.S.C. § 16(b) is unconstitutionally void for vagueness under Johnson. However, the Court has not considered whether the categorical approach must be used in determining if an offense is a crime of violence under 18 U.S.C. § 924(c). Section 924(c) provides for a mandatory consecutive sentence for a defendant who uses or carries a firearm during and in relation to a federal crime of violence or drug trafficking crime, or who possesses a firearm in furtherance of such a crime. Section 924(c) thus creates a separate crime that applies in the context of the facts at issue in the case before the court rather than to prior convictions.
The § 924(c) definition of crime of violence is identical to the definition of crime of violence set forth in § 16. Lower courts are divided as to who should determine whether an offense is a crime of violence under the residual clause of the § 924(c) definition. Some district courts employ the categorical approach, while others suggest that a jury can decide whether the offense satisfies the residual clause of the crime of violence definition. Because the statute does not apply to a prior conviction but instead applies to a particular set of real-world facts that a jury can use to decide whether an offense meets the statute’s definition of crime of violence, courts should not employ the categorical approach when determining whether an offense is a crime of violence under the § 924(c) residual clause. Additionally, because § 924(c) applies in the context of facts that a jury can consider during deliberation, the factors that require use of the categorical approach for prior convictions are inapplicable, thus escaping constitutional issues that are implicated under the ACCA and § 16.