UNITED STATES OF AMERICA v. JOSEPH DECORE SIMMS
U.S. Court of Appeals for the Fourth Circuit (en banc), Motz, January 24, 2019,
Firearm (Federal) – Federal definition of “crime of Violence” that includes any crime involving a “substantial risk that physical force… may be used” is unconstitutionally vague.
Out of 15 judges:
Opinion – Motz (8 votes)
Concur – Wynn (2 votes)
Dissent – Wilkinson (1 vote)
Dissent – Niemeyer (6 votes)
Dissent – Richardson (2 votes)
Facts:
In 2014, Joseph Simms and two others conspired to rob a McDonald’s in Goldsboro, North Carolina. Shortly after 1:00 a.m., Simms and a co-conspirator crawled into the McDonald’s through the drive-through window; a third robber served as a lookout.
When inside, Simms pointed a gun at the manager, attempted to strike another employee, and demanded money. The manager complied and opened the restaurant’s safe. After removing the contents, Simms struck the manager with the gun, threw a cash drawer at the other employee, and fled with his two co-conspirators and $1,100.
Simms was charged with conspiracy to commit a Hobbs Act robbery and “brandishing a firearm during and in relation to a ‘crime of violence.’” (the Hobbs Act robbery).
Simms pled guilty, but at sentencing argued that “crime of violence” as defined in 18 USC 924 is unconstitutionally broad.
The sentencing court disagreed and Simms appealed.
Held: The Fourth Circuit, sitting together (instead of in panels of 3, as they normally do), held that the part of “crime of violence” challenged by Simms was too broad to be understood, and therefore violated due process.
Firearm in Crime of Violence – It is a federal crime to use or carry a firearm in relation to a “crime of violence”
Crime of Violence (Firearm Statute, Federal) – “Crime of violence” is defined as “an offense that is a felony and-
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another
OR (B) 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.
Hobbs Act Robbery – A “Hobbs Act” robbery involves: robbery, extortion, attempt to commit robbery or extortion, and conspiracy to commit robbery or extortion.
Hobbs Act Robbery – A “Hobbs Act Robbery” does not require physical force, so it does not qualify as a “Crime of Violence” under the first prong (use or threatened use of physical force) of the definition
Crime of Violence – A crime “involves a substantial risk that physical force” may be used if the “ordinary case” for the crime entails a “substantial risk” of force.
Vagueness – A statute is unconstitutionally vague if it leaves “people in the dark about what the law demands and allows prosecutors and courts to make it up.”
From the Case: Similar to a similar clause in the Armed Career Criminal Act that was struck down by the Supreme Court, the “substantial risk” question leaves uncertainty about both (1) how to estimate the risk posed by a crime and (2) how much risk it takes for a crime to qualify.
From the Case: “The text and structure of § 924(c)(3)(B) plainly set forth a definition of ‘crime of violence’ that fails to comport with due process. Accordingly, we reverse…”