United States v. Davis , 139 S. Ct. 2319 ( 2019 )

(Slip Opinion) OCTOBER TERM, 2018 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
UNITED STATES v. DAVIS ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 18–431. Argued April 17, 2019—Decided June 24, 2019
Respondents Maurice Davis and Andre Glover were charged with mul-
tiple counts of Hobbs Act robbery and one count of conspiracy to
commit Hobbs Act robbery. They were also charged under 18 U.S. C.
§924(c), which authorizes heightened criminal penalties for using,
carrying, or possessing a firearm in connection with any federal
“crime of violence or drug trafficking crime.” §924(c)(1)(A). “Crime of
violence” is defined in two subparts: the elements clause,
§924(c)(3)(A), and the residual clause, §924(c)(3)(B). The residual
clause in turn defines a “crime of violence” as a felony “that by its na-
ture, involves a substantial risk that physical force against the per-
son or property of another may be used in the course of committing
the offense.” Ibid. A jury convicted the men on most of the underly-
ing charges and on two separate §924(c) charges for brandishing a
firearm in connection with their crimes. The Fifth Circuit initially
rejected their argument that §924(c)’s residual clause is unconstitu-
tionally vague, but on remand in light of Sessions v. Dimaya, 584
U. S. ___, the court reversed course and held §924(c)(3)(B) unconsti-
tutional. It then held that Mr. Davis’s and Mr. Glover’s convictions
on the §924(c) count charging robbery as the predicate crime of vio-
lence could be sustained under the elements clause, but that the oth-
er count—which charged conspiracy as a predicate crime of vio-
lence—could not be upheld because it depended on the residual
clause.
Held: Section 924(c)(3)(B) is unconstitutionally vague. Pp. 4–25.
(a) In our constitutional order, a vague law is no law at all. The
vagueness doctrine rests on the twin constitutional pillars of due pro-
cess and separation of powers. This Court has recently applied the
doctrine in two cases involving statutes that bear more than a pass-
2 UNITED STATES v. DAVIS
Syllabus
ing resemblance to §924(c)(3)(B)’s residual clause—Johnson v. United
States, 576 U. S. ___, which addressed the residual clause of the
Armed Career Criminal Act (ACCA), and Sessions v. Dimaya, which
addressed the residual clause of 18 U.S. C. §16. The residual clause
in each case required judges to use a “categorical approach” to deter-
mine whether an offense qualified as a violent felony or crime of vio-
lence. Judges had to disregard how the defendant actually commit-
ted the offense and instead imagine the degree of risk that would
attend the idealized “ ‘ordinary case’ ” of the offense. Johnson, 576
U. S., at ___. The Court held in each case that the imposition of crim-
inal punishments cannot be made to depend on a judge’s estimation
of the degree of risk posed by a crime’s imagined “ordinary case.” The
government and lower courts have long understood §924(c)(3)(B) to
require the same categorical approach. Now, the government asks
this Court to abandon the traditional categorical approach and hold
that the statute commands a case-specific approach that would look
at the defendant’s actual conduct in the predicate crime. The gov-
ernment’s case-specific approach would avoid the vagueness prob-
lems that doomed the statutes in Johnson and Dimaya and would not
yield to the same practical and Sixth Amendment complications that
a case-specific approach under the ACCA and §16 would, but this ap-
proach finds no support in §924(c)’s text, context, and history. Pp. 4–
9.
(b) This Court has already read the nearly identical language of
§16(b) to mandate a categorical approach. See Leocal v. Ashcroft, 543
U.S. 1, 7. And what is true of §16(b) seems at least as true of
§924(c)(3)(B). The government claims that the singular term “of-
fense” carries the “generic” meaning in connection with the elements
clause but a “specific act” meaning in connection with the residual
clause, but nothing in §924(c)(3)(B) rebuts the presumption that the
single term “offense” bears a consistent meaning. This reading is re-
inforced by the language of the residual clause itself, which speaks of
an offense that, “by its nature,” involves a certain type of risk. Pp. 9–
12.
(c) The categorical reading is also reinforced by §924(c)(3)(B)’s role
in the broader context of the federal criminal code. Dozens of federal
statutes use the phrase “crime of violence” to refer to presently
charged conduct. Some cross-reference §924(c)(3)’s definition, while
others are governed by the virtually identical definition in §16. The
choice appears completely random. To hold that §16(b) requires the
categorical approach while §924(c)(3)(B) requires the case-specific
approach would make a hash of the federal criminal code. Pp. 12–13.
(d) Section 924(c)(3)(B)’s history provides still further evidence that
it carries the same categorical-approach command as §16(b). When
Cite as: 588 U. S. ____ (2019) 3
Syllabus
Congress enacted the definition of “crime of violence” in §16 in 1984,
it also employed the term in numerous places in the Act, including
§924(c). The two statutes, thus, were originally designed to be read
together. And when Congress added a definition of “crime of vio-
lence” to §924(c) in 1986, it copied the definition from §16 without
making any material changes to the language of the residual clause,
which would have been a bizarre way of suggesting that the two
clauses should bear drastically different meanings. Moreover,
§924(c) originally prohibited the use of a firearm in connection with
any federal felony, before Congress narrowed §924(c) in 1984 by lim-
iting its predicate offenses to “crimes of violence.” The case-specific
reading would go a long way toward nullifying that limitation and re-
storing the statute’s original breadth. Pp. 14–17.
(e) Relying on the canon of constitutional avoidance, the govern-
ment insists that if the case-specific approach does not represent the
best reading of the statute, it is nevertheless the Court’s duty to
adopt any “fairly possible” reading to save the statute from being un-
constitutional. But it is doubtful the canon could play a proper role
in this case even if the government’s reading were “possible.” This
Court has sometimes adopted the narrower construction of a criminal
statute to avoid having to hold it unconstitutional if it were construed
more broadly, but it has not invoked the canon to expand the reach of
a criminal statute in order to save it. To do so would risk offending
the very same due process and separation of powers principles on
which the vagueness doctrine itself rests and would sit uneasily with
the rule of lenity’s teaching that ambiguities about a criminal stat-
ute’s breadth should be resolved in the defendant’s favor. Pp. 17–19.
903 F.3d 483, affirmed in part, vacated in part, and remanded.
GORSUCH, J., delivered the opinion of the Court, in which GINSBURG,
BREYER, SOTOMAYOR, and KAGAN, JJ., joined. KAVANAUGH, J., filed a
dissenting opinion, in which THOMAS and ALITO, JJ., joined, and in
which ROBERTS, C. J., joined as to all but Part II–C.
Cite as: 588 U. S. ____ (2019) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–431
_________________
UNITED STATES, PETITIONER v. MAURICE LAMONT
DAVIS AND ANDRE LEVON GLOVER
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 24, 2019]
JUSTICE GORSUCH delivered the opinion of the Court.
In our constitutional order, a vague law is no law at all.
Only the people’s elected representatives in Congress have
the power to write new federal criminal laws. And when
Congress exercises that power, it has to write statutes
that give ordinary people fair warning about what the law
demands of them. Vague laws transgress both of those
constitutional requirements. They hand off the legisla-
ture’s responsibility for defining criminal behavior to
unelected prosecutors and judges, and they leave people
with no sure way to know what consequences will attach
to their conduct. When Congress passes a vague law, the
role of courts under our Constitution is not to fashion a
new, clearer law to take its place, but to treat the law as a
nullity and invite Congress to try again.
Today we apply these principles to 18 U.S. C. §924(c).
That statute threatens long prison sentences for anyone
who uses a firearm in connection with certain other federal
crimes. But which other federal crimes? The statute’s
residual clause points to those felonies “that by [their]
nature, involv[e] a substantial risk that physical force
2 UNITED STATES v. DAVIS
Opinion of the Court
against the person or property of another may be used in
the course of committing the offense.” §924(c)(3)(B). Even
the government admits that this language, read in the
way nearly everyone (including the government) has long
understood it, provides no reliable way to determine which
offenses qualify as crimes of violence and thus is unconsti-
tutionally vague. So today the government attempts a
new and alternative reading designed to save the residual
clause. But this reading, it turns out, cannot be squared
with the statute’s text, context, and history. Were we to
adopt it, we would be effectively stepping outside our role
as judges and writing a new law rather than applying the
one Congress adopted.
I
After Maurice Davis and Andre Glover committed a
string of gas station robberies in Texas, a federal prosecu-
tor charged both men with multiple counts of robbery
affecting interstate commerce in violation of the Hobbs
Act, 18 U.S. C. §1951(a), and one count of conspiracy to
commit Hobbs Act robbery. The prosecutor also charged
Mr. Davis with being a felon in possession of a firearm. In
the end, a jury acquitted Mr. Davis of one robbery charge
and otherwise found the men guilty on all counts. And
these convictions, none of which are challenged here,
authorized the court to impose prison sentences of up to 70
years for Mr. Davis and up to 100 years for Mr. Glover.
But that was not all. This appeal concerns additional
charges the government pursued against the men under
§924(c). That statute authorizes heightened criminal
penalties for using or carrying a firearm “during and in
relation to,” or possessing a firearm “in furtherance of,”
any federal “crime of violence or drug trafficking crime.”
§924(c)(1)(A). The statute proceeds to define the term
“crime of violence” in two subparts—the first known as the
elements clause, and the second the residual clause.
Cite as: 588 U. S. ____ (2019) 3
Opinion of the Court
According to §924(c)(3), a crime of violence is “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 an-
other may be used in the course of committing the
offense.”
Violators of §924(c) face a mandatory minimum sentence
of five years in prison, over and above any sentence they
receive for the underlying crime of violence or drug traf-
ficking crime. The minimum sentence rises to 7 years if
the defendant brandishes the firearm and 10 years if he
discharges it. Certain types of weapons also trigger en-
hanced penalties—for example, a defendant who uses a
short-barreled shotgun faces a minimum sentence of 10
years. And repeat violations of §924(c) carry a minimum
sentence of 25 years.1
At trial, the government argued that Mr. Davis and Mr.
Glover had each committed two separate §924(c) violations
by brandishing a short-barreled shotgun in connection
with their crimes. Here, too, the jury agreed. These con-
victions yielded a mandatory minimum sentence for each
man of 35 years, which had to run consecutively to their
other sentences. Adding the §924(c) mandatory mini-
mums to its discretionary sentences for their other crimes,
the district court ultimately sentenced Mr. Glover to more
——————
1 When this case was tried, a defendant convicted of two §924(c) viola-
tions in a single prosecution faced a 25-year minimum for the second
violation. See Deal v. United States, 508 U.S. 129, 132 (1993); §1(a)(1),
112 Stat. 3469. In 2018, Congress changed the law so that, going
forward, only a second §924(c) violation committed “after a prior
[§924(c)] conviction . . . has become final” will trigger the 25-year
minimum. Pub. L. 115–391, §403(a), 132 Stat. 5221.
4 UNITED STATES v. DAVIS
Opinion of the Court
than 41 years in prison and Mr. Davis to more than 50
years.
On appeal, both defendants argued that §924(c)’s resid-
ual clause is unconstitutionally vague. At first, the Fifth
Circuit rejected the argument. United States v. Davis, 677
Fed. Appx. 933, 936 (2017) (per curiam). But after we
vacated its judgment and remanded for further considera-
tion in light of our decision in Sessions v. Dimaya, 584
U. S. ___ (2018), striking down a different, almost identi-
cally worded statute, the court reversed course and held
§924(c)(3)(B) unconstitutional. 903 F.3d 483, 486 (2018)
(per curiam). It then held that Mr. Davis’s and Mr. Glov-
er’s convictions on one of the two §924(c) counts, the one
that charged robbery as a predicate crime of violence,
could be sustained under the elements clause. But it held
that the other count, which charged conspiracy as a predi-
cate crime of violence, depended on the residual clause;
and so it vacated the men’s convictions and sentences on
that count.
Because the Fifth Circuit’s ruling deepened a dispute
among the lower courts about the constitutionality of
§924(c)’s residual clause, we granted certiorari to resolve
the question. 586 U. S. ___ (2018).2
II
Our doctrine prohibiting the enforcement of vague laws
rests on the twin constitutional pillars of due process and
separation of powers. See Dimaya, 584 U. S., at ___–___
(plurality opinion) (slip op., at 4–5); id., at ___–___
——————
2 Compare United States v. Simms, 914 F.3d 229, 236–246 (CA4
2019) (en banc), United States v. Salas, 889 F.3d 681, 685–686 (CA10
2018), and United States v. Eshetu, 898 F.3d 36, 37–38 (CADC 2018)
(holding that §924(c)(3)(B) is vague), with United States v. Douglas, 907
F.3d 1, 11–16 (CA1 2018), Ovalles v. United States, 905 F.3d 1231,
1240–1252 (CA11 2018) (en banc), and United States v. Barrett, 903
F.3d 166, 178–184 (CA2 2018) (taking the opposite view).
Cite as: 588 U. S. ____ (2019) 5
Opinion of the Court
(GORSUCH, J., concurring in part and concurring in judg-
ment) (slip op., at 2–9). Vague laws contravene the “first
essential of due process of law” that statutes must give
people “of common intelligence” fair notice of what the law
demands of them. Connally v. General Constr. Co., 269
U.S. 385, 391 (1926); see Collins v. Kentucky, 234 U.S.
634, 638 (1914). Vague laws also undermine the Constitu-
tion’s separation of powers and the democratic self-
governance it aims to protect. Only the people’s elected
representatives in the legislature are authorized to “make
an act a crime.” United States v. Hudson, 7 Cranch 32, 34
(1812). Vague statutes threaten to hand responsibility for
defining crimes to relatively unaccountable police, prose-
cutors, and judges, eroding the people’s ability to oversee
the creation of the laws they are expected to abide. See
Kolender v. Lawson, 461 U.S. 352, 357–358, and n. 7
(1983); United States v. L. Cohen Grocery Co., 255 U.S.
81, 89–91 (1921); United States v. Reese, 92 U.S. 214, 221
(1876).
In recent years, this Court has applied these principles
to two statutes that bear more than a passing resemblance
to §924(c)(3)(B)’s residual clause. In Johnson v. United
States, 576 U. S. ___ (2015), the Court addressed the
residual clause of the Armed Career Criminal Act (ACCA),
which defined a “violent felony” to include offenses that
presented a “serious potential risk of physical injury to
another.” §924(e)(2)(B)(ii). The ACCA’s residual clause
required judges to use a form of what we’ve called the
“categorical approach” to determine whether an offense
qualified as a violent felony. Following the categorical
approach, judges had to disregard how the defendant
actually committed his crime. Instead, they were required
to imagine the idealized “ ‘ordinary case’ ” of the defend-
ant’s crime and then guess whether a “ ‘serious potential
risk of physical injury to another’ ” would attend its com-
mission. Id., at ___ (slip op., at 4). Johnson held this
6 UNITED STATES v. DAVIS
Opinion of the Court
judicial inquiry produced “more unpredictability and
arbitrariness” when it comes to specifying unlawful con-
duct than the Constitution allows. Id., at ___–___ (slip op.,
at 5–6).
Next, in Sessions v. Dimaya, we considered the residual
clause of 18 U.S. C. §16, which defines a “crime of vio-
lence” for purposes of many federal statutes. Like
§924(c)(3), §16 contains an elements clause and a residual
clause. The only difference is that §16’s elements clause,
unlike §924(c)(3)’s elements clause, isn’t limited to felo-
nies; but there’s no material difference in the language or
scope of the statutes’ residual clauses.3 As with the
ACCA, our precedent under §16’s residual clause required
courts to use the categorical approach to determine
whether an offense qualified as a crime of violence. Di-
maya, 584 U. S., at ___–___ (slip op., at 2–3); see Leocal v.
Ashcroft, 543 U.S. 1, 7, 10 (2004). And, again as with the
ACCA, we held that §16’s residual clause was unconstitu-
tionally vague because it required courts “to picture the
kind of conduct that the crime involves in the ordinary
case, and to judge whether that abstraction presents some
not-well-specified-yet-sufficiently-large degree of risk.”
Dimaya, 584 U. S., at ___ (slip op., at 11) (internal quota-
tion marks omitted).
What do Johnson and Dimaya have to say about the
statute before us? Those decisions teach that the imposi-
tion of criminal punishment can’t be made to depend on a
judge’s estimation of the degree of risk posed by a crime’s
imagined “ordinary case.” But does §924(c)(3)(B) require
that sort of inquiry? The government and lower courts
——————
3 Section 16 provides that the term “crime of violence” means “(a) an
offense that has as an element the use, attempted use, or threatened
use of physical force against the person or property of another, or
(b) any other offense that is a felony and 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.”
Cite as: 588 U. S. ____ (2019) 7
Opinion of the Court
have long thought so. For years, almost everyone under-
stood §924(c)(3)(B) to require exactly the same categorical
approach that this Court found problematic in the residual
clauses of the ACCA and §16.4 Today, the government
acknowledges that, if this understanding is correct, then
§924(c)(3)(B) must be held unconstitutional too.
But the government thinks it has now found a way
around the problem. In the aftermath of our decisions
holding the residual clauses of the ACCA and §16(b) un-
constitutionally vague, the government “abandon[ed] its
longstanding position” that §924(c)(3)(B) requires a cate-
gorical analysis and began urging lower courts to “adopt a
new ‘case specific’ method” that would look to “the ‘de-
fendant’s actual conduct’ in the predicate offense.” 903
F.3d, at 485. Now, the government tries the same strat-
egy in this Court, asking us to abandon the traditional
categorical approach and hold that the statute actually
commands the government’s new case-specific approach.
So, while the consequences in this case may be of constitu-
tional dimension, the real question before us turns out to
be one of pure statutory interpretation.
In approaching the parties’ dispute over the statute’s
meaning, we begin by acknowledging that the government
——————
4 See, e.g., United States v. Acosta, 470 F.3d 132, 134–135 (CA2
2006); United States v. Butler, 496 Fed. Appx. 158, 161 (CA3 2012);
United States v. Fuertes, 805 F.3d 485, 498 (CA4 2015); United States
v. Williams, 343 F.3d 423, 431 (CA5 2003); Evans v. Zych, 644 F.3d
447, 453 (CA6 2011); United States v. Jackson, 865 F.3d 946, 952 (CA7
2017), vacated and remanded, 584 U. S. ___ (2018); United States v.
Moore, 38 F.3d 977, 979–980 (CA8 1994); United States v. Amparo, 68
F.3d 1222, 1225–1226 (CA9 1995); United States v. Munro, 394 F.3d
865, 870 (CA10 2005); United States v. McGuire, 706 F.3d 1333, 1336–
1337 (CA11 2013); United States v. Kennedy, 133 F.3d 53, 56 (CADC
1998); see also Ovalles v. United States, 905 F.3d 1231, 1295 (CA11
2018) (en banc) (J. Pryor, J., dissenting) (“For years, and even after
Johnson, the government consistently has urged that we apply a
categorical approach to §924(c)”).
8 UNITED STATES v. DAVIS
Opinion of the Court
is right about at least two things. First, a case-specific
approach would avoid the vagueness problems that
doomed the statutes in Johnson and Dimaya. In those
cases, we recognized that there would be no vagueness
problem with asking a jury to decide whether a defend-
ant’s “ ‘real-world conduct’ ” created a substantial risk of
physical violence. Dimaya, 584 U. S., at ___–___ (slip op.,
at 10–11); see Johnson, 576 U. S., at ___, ___ (slip op., at 6,
12). Second, a case-specific approach wouldn’t yield the
same practical and Sixth Amendment complications under
§924(c) that it would have under the ACCA or §16. Those
other statutes, in at least some of their applications, re-
quired a judge to determine whether a defendant’s prior
conviction was for a “crime of violence” or “violent felony.”
In that context, a case-specific approach would have en-
tailed “reconstruct[ing], long after the original conviction,
the conduct underlying that conviction.” Id., at ___ (slip
op., at 13). And having a judge, not a jury, make findings
about that underlying conduct would have “raise[d] seri-
ous Sixth Amendment concerns.” Descamps v. United
States, 570 U.S. 254, 269–270 (2013). By contrast, a
§924(c) prosecution focuses on the conduct with which the
defendant is currently charged. The government already
has to prove to a jury that the defendant committed all the
acts necessary to punish him for the underlying crime of
violence or drug trafficking crime. So it wouldn’t be that
difficult to ask the jury to make an additional finding
about whether the defendant’s conduct also created a
substantial risk that force would be used.
But all this just tells us that it might have been a good
idea for Congress to have written a residual clause for
§924(c) using a case-specific approach. It doesn’t tell us
whether Congress actually wrote such a clause. To an-
swer that question, we need to examine the statute’s text,
context, and history. And when we do that, it becomes
clear that the statute simply cannot support the govern-
Cite as: 588 U. S. ____ (2019) 9
Opinion of the Court
ment’s newly minted case-specific theory.
III
A
Right out of the gate, the government faces a challenge.
This Court, in a unanimous opinion, has already read the
nearly identical language of 18 U.S. C. §16(b) to mandate
a categorical approach. And, importantly, the Court did so
without so much as mentioning the practical and constitu-
tional concerns described above. Instead, the Court got
there based entirely on the text. In Leocal, the Court
wrote:
“In determining whether petitioner’s conviction falls
within the ambit of §16, the statute directs our focus
to the ‘offense’ of conviction. See §16(a) (defining a
crime of violence as ‘an offense that has as an element
the use . . . of physical force against the person or
property of another’ (emphasis added)); §16(b) (defin-
ing the term as ‘any other offense that is a felony and
that, by its nature, involves a substantial risk that
physical force against the person or property of an-
other may be used in the course of committing the
offense’ (emphasis added)). This language requires us
to look to the elements and the nature of the offense of
conviction, rather than to the particular facts relating
to petitioner’s crime.” 543 U.S., at 7.
Leocal went on to suggest that burglary would always be a
crime of violence under §16(b) “because burglary, by its
nature, involves a substantial risk that the burglar will
use force against a victim in completing the crime,” re-
gardless of how any particular burglar might act on a
specific occasion. Id., at 10 (emphasis added); see also
Dimaya, 584 U. S., at ___ (slip op., at 14) (plurality opin-
ion) (reaffirming that “§16(b)’s text . . . demands a categor-
ical approach”). And what was true of §16(b) seems to us
10 UNITED STATES v. DAVIS
Opinion of the Court
at least as true of §924(c)(3)(B): It’s not even close; the
statutory text commands the categorical approach.
Consider the word “offense.” It’s true that “in ordinary
speech,” this word can carry at least two possible mean-
ings. It can refer to “a generic crime, say, the crime of
fraud or theft in general,” or it can refer to “the specific
acts in which an offender engaged on a specific occasion.”
Nijhawan v. Holder, 557 U.S. 29, 33–34 (2009). But the
word “offense” appears just once in §924(c)(3), in the stat-
ute’s prefatory language. And everyone agrees that, in
connection with the elements clause, the term “offense”
carries the first, “generic” meaning. Cf. id., at 36 (similar
language of the ACCA’s elements clause “refers directly to
generic crimes”). So reading this statute most naturally,
we would expect “offense” to retain that same meaning in
connection with the residual clause. After all, “[i]n all but
the most unusual situations, a single use of a statutory
phrase must have a fixed meaning.” Cochise Consultancy,
Inc. v. United States ex rel. Hunt, 587 U. S. ___, ___ (2019)
(slip op., at 5).
To prevail, the government admits it must persuade us
that the singular term “offense” bears a split personality
in §924(c), carrying the “generic” meaning in connection
with the elements clause but then taking on the “specific
act” meaning in connection with the residual clause. And,
the government suggests, this isn’t quite as implausible as
it may sound; sometimes the term “offense” can carry both
meanings simultaneously. To illustrate its point, the
government posits a statute defining a “youthful gun
crime” as “an offense that has as an element the use of a
gun and is committed by someone under the age of 21.”
Tr. of Oral Arg. 16. This statute, the government sug-
gests, would leave us little choice but to understand the
single word “offense” as encompassing both the generic
crime and the manner of its commission on a specific
occasion. To which we say: Fair enough. It’s possible for
Cite as: 588 U. S. ____ (2019) 11
Opinion of the Court
surrounding text to make clear that “offense” carries a
double meaning. But absent evidence to the contrary, we
presume the term is being used consistently. And nothing
in §924(c)(3)(B) comes close to rebutting that presumption.
Just the opposite. The language of the residual clause
itself reinforces the conclusion that the term “offense”
carries the same “generic” meaning throughout the stat-
ute. Section 924(c)(3)(B), just like §16(b), speaks of an
offense that, “by its nature,” involves a certain type of risk.
And that would be an exceedingly strange way of referring
to the circumstances of a specific offender’s conduct. As
both sides agree, the “nature” of a thing typically denotes
its “ ‘normal and characteristic quality,’ ” Dimaya, 584
U. S., at ___ (slip op., at 14) (quoting Webster’s Third New
International Dictionary 1507 (2002)), or its “ ‘basic or
inherent features,’ ” United States v. Barrett, 903 F.3d
166, 182 (CA2 2018) (quoting Oxford Dictionary of English
1183 (A. Stevenson ed., 3d ed. 2010)). So in plain English,
when we speak of the nature of an offense, we’re talking
about “what an offense normally—or, as we have repeat-
edly said, ‘ordinarily’—entails, not what happened to occur
on one occasion.” Dimaya, 584 U. S., at ___ (slip op., at
14); see Leocal, 543 U.S., at 7 (contrasting the “nature of
the offense” with “the particular facts [of] petitioner’s
crime”).5
Once again, the government asks us to overlook this
obvious reading of the text in favor of a strained one. It
suggests that the statute might be referring to the “na-
——————
5 The government’s own regulations reflect this understanding of the
ordinary meaning of “by its nature.” A Department of Justice regula-
tion provides that an inmate is not eligible for early release if he was
convicted of an offense “that, by its nature or conduct, presents a
serious potential risk of physical force.” 28 CFR §550.55(b)(5)(iii)
(2017) (emphasis added); see Bush v. Pitzer, 133 F.3d 455, 458 (CA7
1997) (denying early release because “[c]onspiracy does not by its
‘nature’ present a serious risk; but Bush’s ‘conduct’ did so”).
12 UNITED STATES v. DAVIS
Opinion of the Court
ture” of the defendant’s conduct on a particular occasion.
But while this reading may be linguistically feasible, we
struggle to see why, if it had intended this meaning, Con-
gress would have used the phrase “by its nature” at all.
The government suggests that “by its nature” keeps the
focus on the offender’s conduct and excludes evidence
about his personality, such as whether he has violent
tendencies. But even without the words “by its nature,”
nothing in the statute remotely suggests that courts are
allowed to consider character evidence—a type of evidence
usually off-limits during the guilt phase of a criminal trial.
Cf. Fed. Rule Evid. 404.
B
Things become clearer yet when we consider
§924(c)(3)(B)’s role in the broader context of the federal
criminal code. As we’ve explained, the language of
§924(c)(3)(B) is almost identical to the language of §16(b),
which this Court has read to mandate a categorical ap-
proach. And we normally presume that the same lan-
guage in related statutes carries a consistent meaning.
See, e.g., Sullivan v. Stroop, 496 U.S. 478, 484 (1990).
This case perfectly illustrates why we do that. There
are dozens of federal statutes that use the phrase “crime of
violence” to refer to presently charged conduct rather than
a past conviction. Some of those statutes cross-reference
the definition of “crime of violence” in §924(c)(3), while
others are governed by the virtually identical definition in
§16. The choice appears completely random. Reading the
similar language in §924(c)(3)(B) and §16(b) similarly
yields sensibly congruent applications across all these
other statutes. But if we accepted the government’s invi-
tation to reinterpret §924(c)(3)(B) as alone endorsing a
case-specific approach, we would produce a series of seem-
ingly inexplicable results.
Take just a few examples. If the government were right,
Cite as: 588 U. S. ____ (2019) 13
Opinion of the Court
Congress would have mandated the case-specific approach
in a prosecution for providing explosives to facilitate a
crime of violence, 18 U.S. C. §844(o), but the (now-
invalidated) categorical approach in a prosecution for
providing information about explosives to facilitate a
crime of violence, §842(p)(2). It would have mandated the
case-specific approach in a prosecution for using false
identification documents in connection with a crime of
violence, §1028(b)(3)(B), but the categorical approach in a
prosecution for using confidential phone records in connec-
tion with a crime of violence, §1039(e)(1). It would have
mandated the case-specific approach in a prosecution for
giving someone a firearm to use in a crime of violence,
§924(h), but the categorical approach in a prosecution for
giving a minor a handgun to use in a crime of violence,
§924(a)(6)(B)(ii). It would have mandated the case-specific
approach in a prosecution for traveling to another State to
acquire a firearm for use in a crime of violence, §924(g),
but the categorical approach in a prosecution for traveling
to another State to commit a crime of violence, §1952(a)(2).
And it would have mandated the case-specific approach in
a prosecution for carrying armor-piercing ammunition in
connection with a crime of violence, §924(c)(5), but the
categorical approach in a prosecution for carrying a fire-
arm while “in possession of armor piercing ammunition
capable of being fired in that firearm” in connection with a
crime of violence, §929(a)(1).
There would be no rhyme or reason to any of this. Nor
does the government offer any plausible account why
Congress would have wanted courts to take such dramati-
cally different approaches to classifying offenses as crimes
of violence in these various provisions. To hold, as the
government urges, that §16(b) requires the categorical
approach while §924(c)(3)(B) requires the case-specific
approach would make a hash of the federal criminal code.
14 UNITED STATES v. DAVIS
Opinion of the Court
C
Section 924(c)(3)(B)’s history provides still further evi-
dence that it carries the same categorical-approach com-
mand as §16(b). It’s no accident that the language of the
two laws is almost exactly the same. The statutory term
“crime of violence” traces its origins to the Comprehensive
Crime Control Act of 1984. There, Congress enacted the
definition of “crime of violence” in §16. §1001(a), 98 Stat.
2136. It also “employed the term ‘crime of violence’ in
numerous places in the Act,” Leocal, 543 U.S., at 6, in-
cluding in §924(c). §1005(a), 98 Stat. 2138. At that time,
Congress didn’t provide a separate definition of “crime of
violence” in §924(c) but relied on §16’s general definition.
The two statutes, thus, were originally designed to be read
together.
Admittedly, things changed a bit over time. Eventually,
Congress expanded §924(c)’s predicate offenses to include
drug trafficking crimes as well as crimes of violence.
§§104(a)(2)(B)–(C), 100 Stat. 457. When it did so, Con-
gress added a subsection-specific definition of “drug traf-
ficking crime” in §924(c)(2)—and, perhaps thinking that
both terms should be defined in the same place, it also
added a subsection-specific definition of “crime of violence”
in §924(c)(3). §104(a)(2)(F), id., at 457. But even then,
Congress didn’t write a new definition of that term. In-
stead, it copied and pasted the definition from §16 without
making any material changes to the language of the re-
sidual clause. The government suggests that, in doing so,
Congress “intentionally separated” and “decoupled” the
two definitions. Brief for United States 34, 37. But im-
porting the residual clause from §16 into §924(c)(3) almost
word for word would have been a bizarre way of suggest-
ing that the two clauses should bear drastically different
meanings. Usually when statutory language “ ‘is obviously
transplanted from . . . other legislation,’ ” we have reason
to think “ ‘it brings the old soil with it.’ ” Sekhar v. United
Cite as: 588 U. S. ____ (2019) 15
Opinion of the Court
States, 570 U.S. 729, 733 (2013).
What’s more, when Congress copied §16(b)’s language
into §924(c) in 1986, it proceeded on the premise that the
language required a categorical approach. By then courts
had, as the government puts it, “beg[u]n to settle” on the
view that §16(b) demanded a categorical analysis. Brief
for United States 36–37. Of particular significance, the
Second Circuit, along with a number of district courts, had
relied on the categorical approach to hold that selling
drugs could never qualify as a crime of violence because
“[w]hile the traffic in drugs is often accompanied by vio-
lence,” it can also be carried out through consensual sales
and thus “does not by its nature involve substantial risk
that physical violence will be used.” United States v. Diaz,
778 F.2d 86, 88 (1985). Congress moved quickly to abro-
gate those decisions. But, notably, it didn’t do so by direct-
ing a case-specific approach or changing the language
courts had read to require the categorical approach. In-
stead, it accepted the categorical approach as given and
simply declared that certain drug trafficking crimes auto-
matically trigger §924 penalties, regardless of the risk of
violence that attends them. §§104(a)(2)(B)–(C), 100 Stat.
457.
The government’s reply to this development misses the
mark. The government argues that §16(b) had not ac-
quired such a well-settled judicial construction by 1986
that the reenactment of its language in §924(c)(3)(B)
should be presumed to have incorporated the same con-
struction. We agree. See Jerman v. Carlisle, McNellie,
Rini, Kramer & Ulrich, L. P. A., 559 U.S. 573, 590 (2010)
(interpretations of three courts of appeals “may not have
‘settled’ the meaning” of a statute for purposes of the
reenactment canon). But Congress in 1986 did more than
just reenact language that a handful of courts had inter-
preted to require the categorical approach. It amended
§924(c) specifically to abrogate the results of those deci-
16 UNITED STATES v. DAVIS
Opinion of the Court
sions, without making any attempt to overturn the cate-
gorical reading on which they were based. And that would
have been an odd way of proceeding if Congress had
thought the categorical reading erroneous.
There’s yet one further and distinct way in which
§924(c)’s history undermines the government’s case-
specific reading of the residual clause. As originally en-
acted in 1968, §924(c) prohibited the use of a firearm in
connection with any federal felony. §102, 82 Stat. 1224.
The 1984 amendments narrowed §924(c) by limiting its
predicate offenses to “crimes of violence.” But the case-
specific reading would go a long way toward nullifying
that limitation and restoring the statute’s original
breadth. After all, how many felonies don’t involve a
substantial risk of physical force when they’re committed
using a firearm—let alone when the defendant brandishes
or discharges the firearm?
Recognizing this difficulty, the government assures us
that a jury wouldn’t be allowed to find a felony to be a
crime of violence solely because the defendant used a
firearm, although it could consider the firearm as a “fac-
tor.” Tr. of Oral Arg. 8. But the government identifies no
textual basis for this rule, and exactly how it would work
in practice is anyone’s guess. The government says, for
example, that “selling counterfeit handbags” while carry-
ing a gun wouldn’t be a crime of violence under its ap-
proach. Id., at 9. But why not? Because the counterfeit-
handbag trade is so inherently peaceful that there’s no
substantial risk of a violent confrontation with dissatisfied
customers, territorial competitors, or dogged police offic-
ers? And how are jurors supposed to determine that? The
defendant presumably knew the risks of his trade, and he
chose to arm himself. See United States v. Simms, 914
F.3d 229, 247–248 (CA4 2019) (en banc) (refusing to
“condem[n] jurors to such an ill-defined inquiry”). Even
granting the government its handbag example, we suspect
Cite as: 588 U. S. ____ (2019) 17
Opinion of the Court
its approach would result in the vast majority of federal
felonies becoming potential predicates for §924(c) charges,
contrary to the limitation Congress deliberately imposed
when it restricted the statute’s application to crimes of
violence.
D
With all this statutory evidence now arrayed against it,
the government answers that it should prevail anyway
because of the canon of constitutional avoidance. Maybe
the case-specific approach doesn’t represent the best read-
ing of the statute—but, the government insists, it is our
duty to adopt any “ ‘fairly possible’ ” reading of a statute to
save it from being held unconstitutional. Brief for United
States 45.6
We doubt, however, the canon could play a proper role
in this case even if the government’s reading were “possi-
ble.” True, when presented with two “fair alternatives,”
this Court has sometimes adopted the narrower construc-
tion of a criminal statute to avoid having to hold it uncon-
stitutional if it were construed more broadly. United
States v. Rumely, 345 U.S. 41, 45, 47 (1953); see, e.g.,
Skilling v. United States, 561 U.S. 358, 405–406, and
n. 40 (2010); United States v. Lanier, 520 U.S. 259, 265–
267, and n. 6 (1997). But no one before us has identified a
case in which this Court has invoked the canon to expand
the reach of a criminal statute in order to save it. Yet that
——————
6 There are at least two different canons of construction that some-
times go by the name “constitutional avoidance.” The one the govern-
ment invokes here is perhaps better termed the presumption of consti-
tutionality. Of long lineage, it holds that courts should, if possible,
interpret ambiguous statutes to avoid rendering them unconstitutional,
see, e.g., Parsons v. Bedford, 3 Pet. 433, 448–449 (1830) (Story, J.), and
it is distinct from the more modern (and more debated) constitutional
doubt canon, which suggests courts should construe ambiguous statutes
to avoid the need even to address serious questions about their consti-
tutionality, see Rust v. Sullivan, 500 U.S. 173, 190–191 (1991).
18 UNITED STATES v. DAVIS
Opinion of the Court
is exactly what the government seeks here. Its case-
specific reading would cause §924(c)(3)(B)’s penalties to
apply to conduct they have not previously been understood
to reach: categorically nonviolent felonies committed in
violent ways. See Simms, 914 F.3d, at 256–257 (Wynn,
J., concurring).7
Employing the avoidance canon to expand a criminal
statute’s scope would risk offending the very same due
process and separation-of-powers principles on which the
vagueness doctrine itself rests. See supra, at 4–5. Every-
one agrees that Mr. Davis and Mr. Glover did many things
that Congress had declared to be crimes; and no matter
how we rule today, they will face substantial prison sen-
tences for those offenses. But does §924(c)(3)(B) require
them to suffer additional punishment, on top of everything
else? Even if you think it’s possible to read the statute to
impose such additional punishment, it’s impossible to say
that Congress surely intended that result, or that the law
gave Mr. Davis and Mr. Glover fair warning that §924(c)’s
mandatory penalties would apply to their conduct. Re-
spect for due process and the separation of powers sug-
gests a court may not, in order to save Congress the trou-
——————
7 The government claims to have found cases invoking the canon to
expand a statute’s reach, but none actually stands for that proposition.
Each simply remarks in passing that a construction the Court arrived
at for other reasons had the additional benefit of avoiding vagueness
concerns; none suggests that a narrower construction was available.
See United States v. Grace, 461 U.S. 171, 176 (1983) (accepting gov-
ernment’s construction, which was “not contested by appellees”); United
States v. Culbert, 435 U.S. 371, 379 (1978) (finding statute clear and
refusing to “manufacture ambiguity where none exists”); United States
v. Shreveport Grain & Elevator Co., 287 U.S. 77, 82–83 (1932) (finding
statute unambiguous and construing it according to “the natural import
of its terms”). And the dissent, despite compiling a page-long list of
constitutional avoidance cases spanning “more than 200 years,” post, at
25–26, has been unable to find any better examples. See post, at 29–30
(opinion of KAVANAUGH, J.).
Cite as: 588 U. S. ____ (2019) 19
Opinion of the Court
ble of having to write a new law, construe a criminal
statute to penalize conduct it does not clearly proscribe.
Employing the canon as the government wishes would
also sit uneasily with the rule of lenity’s teaching that
ambiguities about the breadth of a criminal statute should
be resolved in the defendant’s favor. That rule is “perhaps
not much less old than” the task of statutory “construction
itself.” United States v. Wiltberger, 5 Wheat. 76, 95 (1820)
(Marshall, C. J.). And much like the vagueness doctrine,
it is founded on “the tenderness of the law for the rights of
individuals” to fair notice of the law “and on the plain
principle that the power of punishment is vested in the
legislative, not in the judicial department.” Ibid.; see
Lanier, 520 U.S., at 265–266, and n. 5. Applying consti-
tutional avoidance to narrow a criminal statute, as this
Court has historically done, accords with the rule of lenity.
By contrast, using the avoidance canon instead to adopt a
more expansive reading of a criminal statute would place
these traditionally sympathetic doctrines at war with one
another.8
IV
What does the dissent have to say about all this? It
starts by emphasizing that §924(c)(3)(B) has been used in
“tens of thousands of federal prosecutions” since its en-
actment 33 years ago. Post, at 2 (opinion of KAVANAUGH,
J.). And the dissent finds it “surprising” and “extraordi-
nary” that, after all those prosecutions over all that time,
——————
8 Admittedly, abandoning the categorical approach in favor of the
case-specific approach would also have the effect of excluding from the
statute’s coverage defendants who commit categorically violent felonies
in nonviolent ways, and in that respect would be more “lenient” for
some defendants. Regardless, the constitutional principles underlying
the rule of lenity counsel caution before invoking constitutional avoid-
ance to construe the statute to punish conduct that it does not unam-
biguously proscribe.
20 UNITED STATES v. DAVIS
Opinion of the Court
the statute could “suddenly” be deemed unconstitutional.
Post, at 2–3. But the government concedes that
§924(c)(3)(B) is unconstitutional if it means what everyone
has understood it to mean in nearly all of those prosecu-
tions over all those years. So the only way the statute can
be saved is if we were “suddenly” to give it a new meaning
different from the one it has borne for the last three dec-
ades. And if we could do that, it would indeed be “surpris-
ing” and “extraordinary.”
The dissent defends giving this old law a new meaning
by appealing to intuition. It suggests that a categorical
reading of §924(c)(3)(B) is “unnatural” because “[i]f you
were to ask John Q. Public whether a particular crime
posed a substantial risk of violence, surely he would re-
spond, ‘Well, tell me how it went down—what happened?’ ”
Post, at 13 (some internal quotation marks omitted).
Maybe so. But the language in the statute before us isn’t
the language posited in the dissent’s push poll. Section
924(c)(3)(B) doesn’t ask about the risk that “a particular
crime posed” but about the risk that an “offense . . . by its
nature, involves.” And a categorical reading of this cate-
gorical language seemed anything but “unnatural” to the
unanimous Court in Leocal or the plurality in Dimaya.9
Nor did the government think the categorical reading of
§924(c)(3)(B) “unnatural” when it embraced that reading
for decades. The dissent asks us to overlook the govern-
ment’s prior view, explaining that the government only
defended a categorical reading of the statute “when it did
not matter for constitutional vagueness purposes”—that
is, before Johnson and Dimaya identified constitutional
problems with the categorical approach. Post, at 34. But
——————
9 To be sure, the dissent suggests that Leocal and Dimaya adopted a
categorical reading simply to avoid practical and constitutional prob-
lems. Post, at 15–16, 23, and n. 23. But, as we have seen, this too is
mistaken. Leocal did not even mention those problems, and Dimaya
held that the text demanded a categorical approach. See supra, at 9.
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Opinion of the Court
isn’t that exactly the point? Isn’t it at least a little reveal-
ing that, when the government had no motive to concoct
an alternative reading, even it thought the best reading of
§924(c)(3)(B) demanded a categorical analysis?
If this line of attack won’t work, the dissent tries another
by telling us that we have “not fully account[ed] for the
long tradition of substantial-risk criminal statutes.” Post,
at 34. The dissent proceeds to offer a lengthy bill of par-
ticulars, citing dozens of state and federal laws that do not
use the categorical approach. Post, at 7–10, and nn. 4–17.
But what does this prove? Most of the statutes the dissent
cites impose penalties on whoever “creates,” or “engages in
conduct that creates,” or acts under “circumstances that
create” a substantial risk of harm; others employ similar
language. Not a single one imposes penalties for commit-
ting certain acts during “an offense . . . that by its nature,
involves” a substantial risk, or anything similar. March-
ing through the dissent’s own catalog thus only winds up
confirming that legislatures know how to write risk-based
statutes that require a case-specific analysis—and that
§924(c)(3)(B) is not a statute like that.
When the dissent finally turns to address the words
Congress actually wrote in §924(c)(3)(B), its main argu-
ment seems to be that a categorical reading violates the
canon against superfluity. On this account, reading “of-
fense” generically in connection with the residual clause
makes the residual clause “duplicate” the elements clause
and leaves it with “virtually nothing” to do. Post, at 20.
But that is a surprising assertion coming from the dissent,
which devotes several pages to describing the “many”
offenders who have been convicted under the residual
clause using the categorical approach but who “might not”
be prosecutable under the elements clause. Post, at 30–33.
It is also wrong. As this Court has long understood, the
residual clause, read categorically, “sweeps more broadly”
than the elements clause—potentially reaching offenses,
22 UNITED STATES v. DAVIS
Opinion of the Court
like burglary, that do not have violence as an element but
that arguably create a substantial risk of violence. Leocal,
543 U.S., at 10. So even under the categorical reading,
the residual clause is far from superfluous.
Without its misplaced reliance on the superfluity canon,
there is little left of the dissent’s textual analysis. The
dissent asserts that the phrase “by its nature” must
“focu[s] on the defendant’s actual conduct”—but only
because this “follows” from the dissent’s earlier (and mis-
taken) superfluity argument. Post, at 21. Next, the dis-
sent claims that “the word ‘involves’ ” and “the phrase ‘in
the course of committing the offense’ ” both support a case-
specific approach. Post, at 22. But these words do not
favor either reading: It is just as natural to ask whether
the offense of robbery ordinarily “involves” a substantial
risk that violence will be used “in the course of committing
the offense” as it is to ask whether a particular robbery
“involved” a substantial risk that violence would be used
“in the course of committing the offense.” If anything, the
statute’s use of the present and not the past tense lends
further support to the categorical reading.10 The dissent
thinks it significant, too, that the statute before us “does
not use the term ‘conviction,’ ” post, at 23; but that word is
hardly a prerequisite for the categorical approach, as
Dimaya makes clear. Remarkably, the dissent has noth-
——————
10 The dissent claims that Taylor v. United States, 495 U.S. 575
(1990), and Nijhawan v. Holder, 557 U.S. 29 (2009), pointed to “the
absence of the word ‘involved’ ” as one reason to adopt a categorical
approach. Post, at 22. Not true. Taylor explained that the ACCA’s
elements clause requires a categorical approach in part because it
refers to a crime “that ‘has as an element’—not any crime that, in a
particular case, involves—the use or threat of force.” 495 U.S., at 600.
All the work in that sentence was being done by the phrase “in a
particular case,” not by the word “involves.” And Nijhawan noted that
the Court had construed the ACCA’s residual clause, which refers to
crimes “that ‘involv[e] conduct that presents a serious potential risk of
physical injury,” to require the categorical approach. 557 U.S., at 36.
Cite as: 588 U. S. ____ (2019) 23
Opinion of the Court
ing at all to say about §924(c)(3)’s history or its relation-
ship with other criminal statutes; it just ignores those
arguments. And when it comes to the constitutional
avoidance canon, the dissent does not even try to explain
how using that canon to criminalize conduct that isn’t
criminal under the fairest reading of a statute might be
reconciled with traditional principles of fair notice and
separation of powers. Instead, the dissent seems willing
to consign “ ‘thousands’ ” of defendants to prison for
“years—potentially decades,” not because it is certain or
even likely that Congress ordained those penalties, but
because it is merely “possible” Congress might have done
so. Post, at 30, 33–34. In our republic, a speculative
possibility that a man’s conduct violated the law should
never be enough to justify taking his liberty.
In the end, the dissent is forced to argue that holding
§924(c)(3)(B) unconstitutional would invite “bad” social
policy consequences. Post, at 34. In fact, the dissent’s
legal analysis only comes sandwiched between a lengthy
paean to laws that impose severe punishments for gun
crimes and a rogue’s gallery of offenses that may now be
punished somewhat less severely. See post, at 1–2, 30–34.
The dissent acknowledges that “the consequences cannot
change our understanding of the law.” Post, at 34. But
what’s the point of all this talk of “bad” consequences if
not to suggest that judges should be tempted into reading
the law to satisfy their policy goals? Even taken on their
own terms, too, the dissent’s policy concerns are consider-
ably overblown. While the dissent worries that our ruling
may elicit challenges to past §924(c) convictions, post, at
33, the dissent’s preferred approach—saving §924(c)(3)(B)
by changing its meaning—would also call into question
countless convictions premised on the categorical reading.
And defendants whose §924(c) convictions are overturned
by virtue of today’s ruling will not even necessarily receive
lighter sentences: As this Court has noted, when a defend-
24 UNITED STATES v. DAVIS
Opinion of the Court
ant’s §924(c) conviction is invalidated, courts of appeals
“routinely” vacate the defendant’s entire sentence on all
counts “so that the district court may increase the sen-
tences for any remaining counts” if such an increase is
warranted. Dean v. United States, 581 U. S. ___, ___
(2017) (slip op., at 5).
Of course, too, Congress always remains free to adopt a
case-specific approach to defining crimes of violence for
purposes of §924(c)(3)(B) going forward. As Mr. Davis and
Mr. Glover point out, one easy way of achieving that goal
would be to amend the statute so it covers any felony that,
“based on the facts underlying the offense, involved a
substantial risk” that physical force against the person or
property of another would be used in the course of commit-
ting the offense. Brief for Respondents 46 (quoting H. R.
7113, 115th Cong., 2d Sess. (2018); emphasis deleted); see
also Tr. of Oral Arg. 19 (government’s counsel agreeing
that this language would offer “clearer” support for the
case-specific approach than the current version of the
statute does). The dissent’s catalog of case-specific, risk-
based criminal statutes supplies plenty of other models
Congress could follow. Alternatively still, Congress might
choose to retain the categorical approach but avoid vague-
ness in other ways, such as by defining crimes of violence
to include certain enumerated offenses or offenses that
carry certain minimum penalties. All these options and
more are on the table. But these are options that belong
to Congress to consider; no matter how tempting, this
Court is not in the business of writing new statutes to
right every social wrong it may perceive.
*
We agree with the court of appeals’ conclusion that
§924(c)(3)(B) is unconstitutionally vague. At the same
time, exactly what that holding means for Mr. Davis and
Mr. Glover remains to be determined. After the Fifth
Cite as: 588 U. S. ____ (2019) 25
Opinion of the Court
Circuit vacated their convictions and sentences on one of
the two §924(c) counts at issue, both men sought rehearing
and argued that the court should have vacated their sen-
tences on all counts. In response, the government con-
ceded that, if §924(c)(3)(B) is held to be vague, then the de-
fendants are entitled to a full resentencing, not just the
more limited remedy the court had granted them. The
Fifth Circuit has deferred ruling on the rehearing peti-
tions pending our decision, so we remand the case to allow
the court to address those petitions. The judgment below
is affirmed in part and vacated in part, and the case is
remanded for further proceedings consistent with this
opinion.
It is so ordered.
Cite as: 588 U. S. ____ (2019) 1
KAVANAUGH, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–431
_________________
UNITED STATES, PETITIONER v. MAURICE LAMONT
DAVIS AND ANDRE LEVON GLOVER
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 24, 2019]
JUSTICE KAVANAUGH, with whom JUSTICE THOMAS and
JUSTICE ALITO join, and with whom THE CHIEF JUSTICE
joins as to all but Part II–C, dissenting.
Crime and firearms form a dangerous mix. From the
1960s through the 1980s, violent gun crime was rampant
in America. The wave of violence destroyed lives and
devastated communities, particularly in America’s cities.
Between 1963 and 1968, annual murders with firearms
rose by a staggering 87 percent, and annual aggravated
assaults with firearms increased by more than 230
percent.
Faced with an onslaught of violent gun crime and its
debilitating effects, the American people demanded action.
In 1968, Congress passed and President Lyndon Johnson
signed the Gun Control Act. That law made it a separate
federal crime to use or carry a firearm during a federal
felony. Despite that and other efforts, violent crime with
firearms continued at extraordinarily dangerous levels. In
1984 and again in 1986, in legislation signed by President
Reagan, Congress reenacted that provision of the 1968
Act, with amendments. The law now prohibits, among
other things, using or carrying a firearm during and in
relation to a federal “crime of violence.” 18 U.S. C.
§924(c)(1)(A). The law mandates substantial prison time
for violators.
2 UNITED STATES v. DAVIS
KAVANAUGH, J., dissenting
Over the last 33 years, tens of thousands of §924(c)
cases have been prosecuted in the federal courts. Mean-
while, violent crime with firearms has decreased signifi-
cantly. Over the last 25 years, the annual rate of murders
with firearms has dropped by about 50 percent, and the
annual rate of nonfatal violent crimes (robberies, aggra-
vated assaults, and sex crimes) with firearms has de-
creased by about 75 percent. Violent crime in general
(committed with or without a firearm) has also declined.
During that same time period, both the annual rate of
overall violent crime and the annual rate of murders have
dropped by almost 50 percent.
Although the level of violent crime in America is still
very high, especially in certain cities, Americans under the
age of 40 probably cannot fully appreciate how much safer
most American cities and towns are now than they were in
the 1960s, 1970s, and 1980s. Many factors have contrib-
uted to the decline of violent crime in America. But one
cannot dismiss the effects of state and federal laws that
impose steep punishments on those who commit violent
crimes with firearms.
Yet today, after 33 years and tens of thousands of federal
prosecutions, the Court suddenly finds a key provision of
§924(c) to be unconstitutional because it is supposedly too
vague. That is a surprising conclusion for the Court to
reach about a federal law that has been applied so often
for so long with so little problem. The Court’s decision
today will make it harder to prosecute violent gun crimes
in the future. The Court’s decision also will likely mean
that thousands of inmates who committed violent gun
crimes will be released far earlier than Congress specified
when enacting §924(c). The inmates who will be released
early are not nonviolent offenders. They are not drug
offenders. They are offenders who committed violent
crimes with firearms, often brutally violent crimes.
A decision to strike down a 33-year-old, often-prosecuted
Cite as: 588 U. S. ____ (2019) 3
KAVANAUGH, J., dissenting
federal criminal law because it is all of a sudden unconsti-
tutionally vague is an extraordinary event in this Court.
The Constitution’s separation of powers authorizes this
Court to declare Acts of Congress unconstitutional. That
is an awesome power. We exercise that power of judicial
review in justiciable cases to, among other things, ensure
that Congress acts within constitutional limits and abides
by the separation of powers. But when we overstep our
role in the name of enforcing limits on Congress, we do not
uphold the separation of powers, we transgress the sepa-
ration of powers.
I fully understand how the Court has arrived at its
conclusion given the Court’s recent precedents in Johnson
v. United States, 576 U. S. ___ (2015), and Sessions v.
Dimaya, 584 U. S. ___ (2018). But this case presents an
entirely different question. Those cases involved statutes
that imposed additional penalties based on prior convic-
tions. This case involves a statute that focuses on the
defendant’s current conduct during the charged crime.
The statute here operates entirely in the present. Under
our precedents, this statute therefore is not unconstitu-
tionally vague. It is a serious mistake, in my respectful
view, to follow Johnson and Dimaya off the constitutional
cliff in this case. I respectfully dissent.1
I
Section 924(c) prohibits using or carrying a firearm
during and in relation to a federal “crime of violence,” or
——————
1 The statistics contained in the introduction are drawn from: Dept. of
Justice, Federal Bureau of Investigation, Uniform Crime Reports 6–7,
8–9 (1963) (rise in violent crime with firearms in the 1960s); id., at 1,
6–7, 9 (1968) (same); Pew Research Center, Gun Homicide Rate Down
49% Since 1993 Peak; Public Unaware 6, n. 5, and 36, 50 (2013) (de-
crease in violent crime with firearms over about the past 25 years); N.
James, Congressional Research Service, Recent Violent Crime Trends
in the United States 25–26 (Rep. No. R45236) (June 20, 2018) (decrease
in violent crime over about the past 25 years).
4 UNITED STATES v. DAVIS
KAVANAUGH, J., dissenting
possessing a firearm in furtherance of a federal “crime of
violence.”2 Section 924(c) is a substantive criminal of-
fense, not a sentence enhancement. The Government
therefore charges a §924(c) offense in the indictment.
Ordinarily, when charged under §924(c), a defendant will
be charged with both an underlying federal crime and
then also a §924(c) offense. For example, Davis was
charged with both conspiracy to commit robbery and a
§924(c) offense. Glover was likewise charged with both
conspiracy to commit robbery and a §924(c) offense.
By any measure, Davis and Glover’s conduct during the
conspiracy was violent. Davis and Glover committed
multiple armed robberies of convenience stores in the
early morning hours. Those armed robberies followed a
pattern: Davis and Glover (or Glover and a co-
conspirator)—usually covering their faces—would arrive
at a convenience store in the early morning hours in a car
with no plates. One of them would point a short-barreled
shotgun at a female employee and order her around.
Sometimes, he would point the short-barreled shotgun in
her face. Sometimes, he would put the short-barreled
——————
2 Section 924(c)(1)(A) provides: “Except to the extent that a greater
minimum sentence is otherwise provided by this subsection or by any
other provision of law, any person who, during and in relation to any
crime of violence or drug trafficking crime (including a crime of violence
or drug trafficking crime that provides for an enhanced punishment if
committed by the use of a deadly or dangerous weapon or device) for
which the person may be prosecuted in a court of the United States,
uses or carries a firearm, or who, in furtherance of any such crime,
possesses a firearm, shall, in addition to the punishment provided for
such crime of violence or drug trafficking crime—(i) be sentenced to a
term of imprisonment of not less than 5 years; (ii) if the firearm is
brandished, be sentenced to a term of imprisonment of not less than 7
years; and (iii) if the firearm is discharged, be sentenced to a term of
imprisonment of not less than 10 years.” Section 924(c)(1)(B) imposes
heightened penalties for certain types of firearms and firearm devices,
and §924(c)(1)(C) imposes heightened penalties for subsequent §924(c)
convictions.
Cite as: 588 U. S. ____ (2019) 5
KAVANAUGH, J., dissenting
shotgun in her side. While one of them was aiming the
short-barreled shotgun at the store employee, another
would take cigarettes and demand money. Davis and
Glover’s crime spree ended with still more dangerous
behavior: a high-speed car chase in wet and dangerous
driving conditions that culminated in a crash.
Section 924(c)(3) lays out the definition of “crime of
violence” for purposes of §924(c). That definition has two
prongs, either of which can bring a defendant within the
scope of §924(c).3
The first prong of §924(c)(3) is the elements prong. That
prong, the Government concedes here, asks whether the
underlying crime categorically fits within §924(c) because
of the elements of the crime. The judge makes that de-
termination. If the answer is yes, then the judge instructs
the jury on the §924(c) offense to simply find whether the
defendant used or carried a firearm during and in relation
to that underlying crime, or possessed a firearm in fur-
therance of that underlying crime.
The Fifth Circuit concluded that Davis and Glover’s
conspiracy offenses did not fit within the elements prong
of §924(c)(3). So the question was whether Davis and
Glover were covered by the second prong.
The second prong of §924(c)(3) is the substantial-risk
prong. That prong covers cases beyond those covered by
the first prong, the elements prong. Congress sensibly
wanted to cover defendants who committed crimes that
are not necessarily violent by definition under the ele-
ments prong, but who committed crimes with firearms in a
——————
3 Section 924(c)(3) provides: “For purposes of this subsection the term
‘crime of violence’ means 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.”
6 UNITED STATES v. DAVIS
KAVANAUGH, J., dissenting
way that created a substantial risk that violent force
would be used. To that end, the substantial-risk prong,
properly read, focuses not on the elements of the underly-
ing crime, but rather on the defendant’s conduct during
that crime. If a defendant used or carried a firearm dur-
ing and in relation to the crime, and the defendant’s con-
duct during the crime created a substantial risk that
physical force may be used, then the defendant may be
guilty of a §924(c) offense. In that instance, the jury
makes the finding: Did the defendant’s conduct during the
underlying crime create a substantial risk that violent
force would be used?
In other words, as relevant here, a defendant can fall
within the scope of §924(c) either (1) because of the ele-
ments of the underlying crime or (2) because of the de-
fendant’s conduct in committing the underlying crime.
Either (1) the judge finds that an element of the underly-
ing crime entails the use of physical force or (2) the jury
finds that the defendant’s actual conduct involved a sub-
stantial risk that physical force may be used. Put another
way, the underlying crime itself may automatically bring
the defendant within the scope of §924(c). Or if the under-
lying crime does not automatically qualify as a crime of
violence, then the defendant’s conduct during the crime
may still bring the defendant within the scope of §924(c).
Sensible enough.
The basic question in this case is whether the substantial-
risk prong of §924(c)(3)’s definition of “crime of violence” is
unconstitutionally vague. It is not.
As this Court has explained multiple times, criminal
laws that apply a risk standard to a defendant’s conduct
are not too vague, but instead are perfectly constitutional.
Writing for the Court in Johnson, for example, Justice
Scalia stated that “we do not doubt the constitutionality of
laws that call for the application of a qualitative standard
such as ‘substantial risk’ to real-world conduct.” 576
Cite as: 588 U. S. ____ (2019) 7
KAVANAUGH, J., dissenting
U. S., at ___ (slip op., at 12). The following year in Welch
v. United States, Justice Kennedy confirmed that Johnson
“cast no doubt on the many laws that ‘require gauging the
riskiness of conduct in which an individual defendant
engages on a particular occasion.’ ” 578 U. S. ___, ___–___
(2016) (slip op., at 3–4) (quoting Johnson, 576 U. S., at ___
(slip op., at 12)). Two years later in Dimaya, JUSTICE
KAGAN wrote for the Court and echoed Justice Scalia and
Justice Kennedy: “In Johnson’s words, ‘we do not doubt’
the constitutionality of applying §16(b)’s ‘substantial risk
[standard] to real-world conduct.’ ” 584 U. S., at ___–___
(slip op., at 10–11) (quoting Johnson, 576 U. S., at ___ (slip
op., at 12)).
That kind of risk-based criminal statute is not only
constitutional, it is very common. As the Court has recog-
nized, “dozens of federal and state criminal laws use terms
like ‘substantial risk,’ ‘grave risk,’ and ‘unreasonable
risk,’ ” and almost all of those statutes “require gauging
the riskiness of conduct in which an individual defendant
engages on a particular occasion.” Johnson, 576 U. S., at
___ (slip op., at 12). Indeed, the Government’s brief in
Johnson collected more than 200 state and federal stat-
utes that imposed criminal penalties for conduct that
created a risk of injury to others. App. to Supp. Brief for
United States in Johnson v. United States, O. T. 2014, No.
13–7120, pp. 1a–99a.
Take a few examples from federal law: It is a federal
crime to create “a substantial risk of harm to human life”
while illegally “manufacturing a controlled substance.” 21
U.S. C. §858 (emphasis added). Under certain circum-
stances, it is a federal crime to create “a substantial risk of
serious bodily injury to any other person by destroying or
damaging any structure, conveyance, or other real or
personal property within the United States or by attempt-
ing or conspiring to” do so. 18 U.S. C. §2332b(a)(1)(B)
(emphasis added). And for purposes of the chapter of the
8 UNITED STATES v. DAVIS
KAVANAUGH, J., dissenting
federal criminal code dealing with sexual abuse crimes,
“serious bodily injury” is defined as “bodily injury that
involves a substantial risk of death, unconsciousness,
extreme physical pain, protracted and obvious disfigure-
ment, or protracted loss or impairment of the function of a
bodily member, organ, or mental faculty.” §2246(4) (em-
phasis added).
The States’ criminal codes are similar. Among the
crimes that the States define by using qualitative risk
standards are resisting arrest,4 kidnaping,5 assault,6
battery,7 criminal recklessness,8 endangerment,9 unlawful
——————
4 See, e.g., Colo. Rev. Stat. §18–8–103(1)(b) (2018) (“substantial risk of
causing bodily injury”); Ind. Code §35–44.1–3–1(b)(1)(B) (2019) (“sub-
stantial risk of bodily injury”); Mo. Rev. Stat. §575.150 (2016) (“sub-
stantial risk of serious physical injury or death”); Neb. Rev. Stat. §28–
904(1)(b) (2016) (“substantial risk of causing physical injury”); Ore.
Rev. Stat. §162.315(2)(c) (2017) (“substantial risk of physical injury”).
5 See, e.g., Alaska Stat. §11.41.300(a)(2)(B) (2018) (“substantial risk of
serious physical injury”); Ohio Rev. Code Ann. §2905.01(B) (Lexis Supp.
2019) (“substantial risk of serious physical harm”).
6 See, e.g., Ala. Code §13A–6–20(a)(3) (2015) (“grave risk of death”);
Del. Code Ann., Tit. 11, §613(a)(3) (2015) (“substantial risk of death”);
D. C. Code §22–404.01(a)(2) (2018 Cum. Supp.) (“grave risk of serious
bodily injury”); Mo. Rev. Stat. §565.056(1)(4) (2016) (“substantial risk of
death or serious physical injury”); Utah Code §76–5–102(1)(b) (2017)
(“substantial risk of bodily injury”).
7 See, e.g., Ind. Code §35–42–2–1.5 (Supp. 2018) (“substantial risk of
death”); Wis. Stat. §940.19(6) (2016) (“substantial risk of great bodily
harm”).
8 See, e.g., Me. Rev. Stat. Ann., Tit. 17–A, §211(1) (2006) (“substantial
risk of serious bodily injury”), §213(1) (same); Okla. Stat., Tit. 21,
§1289.11 (2011) (“unreasonable risk and probability of death or great
bodily harm”); Wis. Stat. Ann. §939.24(1) (2016) (“unreasonable and
substantial risk of death or great bodily harm”).
9 See, e.g., Ariz. Rev. Stat. Ann. §§13–1201(A), (B) (2010) (“substantial
risk of imminent death or physical injury” and “substantial risk of
imminent death”); N. D. Cent. Code Ann. §12.1–17–03 (2012) (“substan-
tial risk of serious bodily injury or death”); Ore. Rev. Stat. §163.195(1)
(2017) (“substantial risk of serious physical injury”); Wash. Rev. Code
§9A.36.050(1) (2018) (“substantial risk of death or serious physical
Cite as: 588 U. S. ____ (2019) 9
KAVANAUGH, J., dissenting
restraint,10 theft,11 hazing,12 abuse,13 neglect,14 arson,15
homicide,16 and weapons offenses.17
——————
injury”).
10 See, e.g., Ark. Code §5–11–103(a) (2013) (“substantial risk of seri-
ous physical injury”); Conn. Gen. Stat. §53a–95(a) (2017) (“substantial
risk of physical injury”); Tex. Penal Code Ann. §20.02(c)(2)(A) (2019)
(“substantial risk of serious bodily injury”).
11 See, e.g., Ind. Code §35–43–4–2(a)(2)(B) (2018) (“substantial risk of
bodily injury”); Minn. Stat. §609.52(3a) (2016) (“reasonably foreseeable
risk of bodily harm”).
12 See, e.g., Ind. Code §35–42–2–2.5(a) (2018) (“substantial risk of
bodily injury”); Miss. Code. Ann. §§97–3–105(1), (3) (2014) (“substantial
risk of physical injury”); Mo. Rev. Stat. §§578.365(1), (5) (2016) (“prob-
able risk of the loss of life or probable bodily or psychological harm” and
“substantial risk to the life of the student or prospective member”);
Ohio Rev. Code Ann. §2903.31(A) (Lexis 2014) (“substantial risk of
causing mental or physical harm”); Ore. Rev. Stat. §§163.197(4)(a)(B),
(C) (2017) (“unreasonable risk of harm”).
13 See, e.g., Iowa Code §709.3(1)(a) (2019) (“substantial risk of death
or serious injury”); N. C. Gen. Stat. Ann. §14–318.2(a) (2017) (“substan-
tial risk of physical injury”); W. Va. Code Ann. §§61–8D–3(c), (d)(1)
(2014) (“substantial risk of death or serious bodily injury” and “sub-
stantial risk of bodily injury”); Wis. Stat. §§948.03(1), (4)(a), (b) (2016)
(“unreasonable risk of harm,” “unreasonable risk of great bodily harm,”
and “unreasonable risk of bodily harm”).
14 See, e.g., Fla. Stat. §825.102(3)(a) (2018) (“substantial risk of
death”), §827.03(1)(e) (same); W. Va. Code Ann. §§61–8D–4(c), (d)(1)
(2014) (“substantial risk of death or serious bodily injury” and “sub-
stantial risk of bodily injury”).
15 See, e.g., Kan. Stat. Ann. §§21–5812(c)(2)(A)(i), (ii) (2018 Cum.
Supp.) (“substantial risk of bodily harm”); R. I. Gen. Laws §11–4–2
(2002) (“substantial risk of serious physical harm”); Wis. Stat.
§§941.11(1), (2) (2016) (“unreasonable risk of death or great bodily
harm”).
16 See, e.g., Ala. Code §13A–6–2(a)(2) (2015) (“grave risk of death”);
Kan. Stat. Ann. §21–5406(a) (2018 Cum. Supp.) (“unreasonable risk of
injury”); N. Y. Penal Law Ann. §125.20(4) (West 2009) (“grave risk of
serious physical injury”), §§125.25(2), (4) (“grave risk of death” and
“grave risk of serious physical injury or death”).
17 See, e.g., Alaska Stat. §11.61.190(a)(2) (2018) (“substantial and
unjustifiable risk of physical injury”); Ark. Code Ann. §5–74–107(b)(1)
(Supp. 2017) (“substantial risk of physical injury”); Ohio Rev. Code
10 UNITED STATES v. DAVIS
KAVANAUGH, J., dissenting
Consider a few specific examples: In Pennsylvania, a
person resists arrest “if, with the intent of preventing a
public servant from effecting a lawful arrest or discharg-
ing any other duty, the person creates a substantial risk of
bodily injury to the public servant or anyone else.” 18 Pa.
Cons. Stat. §5104 (2015) (emphasis added). In Tennessee,
kidnaping is defined as false imprisonment “under cir-
cumstances exposing the other person to substantial risk
of bodily injury.” Tenn. Code Ann. §39–13–303(a) (2018)
(emphasis added). In New York, reckless endangerment
occurs when a person “recklessly engages in conduct which
creates a substantial risk of serious physical injury to
another person.” N. Y. Penal Law Ann. §120.20 (emphasis
added). And in Maryland, neglect of a minor is defined as
“the intentional failure to provide necessary assistance
and resources for the physical needs or mental health of a
minor that creates a substantial risk of harm to the mi-
nor’s physical health or a substantial risk of mental injury
to the minor.” Md. Crim. Law Code Ann. §3–602.1(a)(5)(i)
(2012) (emphasis added).
The above examples demonstrate that substantial-risk
standards like the one in §924(c)(3)(B) are a traditional
and common feature of criminal statutes. As the Eleventh
Circuit succinctly stated, there “is nothing remarkable
about asking jurors to make that sort of risk determina-
tion—and, if necessary, requiring judges to instruct jurors
on the meaning of terms like ‘substantial’ and ‘physical
force.’ ” Ovalles v. United States, 905 F.3d 1231, 1250,
n. 8 (2018) (en banc). That is “exactly how similar ques-
tions have been resolved for centuries and are resolved
every day in courts throughout the country.” Ibid.
——————
Ann. §2923.162(C)(2) (Lexis 2014) (“substantial risk of physical harm”);
R. I. Gen. Laws §11–47–61 (2002) (“substantial risk of death or serious
injury”); Wash. Rev. Code §9A.36.045(1) (2018) (“substantial risk of
death or serious physical injury”); W. Va. Code Ann. §61–7–12 (2014)
(“substantial risk of death or serious bodily injury”).
Cite as: 588 U. S. ____ (2019) 11
KAVANAUGH, J., dissenting
A statute is unconstitutionally vague only if “it fails to
give ordinary people fair notice of the conduct it punishes,”
or is “so standardless that it invites arbitrary enforce-
ment.” Johnson, 576 U. S., at ___ (slip op., at 3). Section
924(c)(3)(B) is not unconstitutionally vague. To reiterate,
§924(c)(3)(B) defines “crime of violence” as “an offense that
is a felony and . . . that by its nature, involves a substan-
tial risk that physical force against the person or property
of another may be used in the course of committing the
offense.” Section 924(c)(3)(B) affords people of ordinary
intelligence ample notice that they may be punished if
they carry or use a gun while engaging in criminal conduct
that presents a risk that physical force may be used.
There “is a whole range of conduct that anyone with at
least a semblance of common sense would know” is cov-
ered by §924(c)(3)(B). Chicago v. Morales, 527 U.S. 41,
114 (1999) (THOMAS, J., dissenting) (internal quotation
marks omitted). And prosecutors, defense attorneys,
judges, and juries are well equipped to enforce and defend
§924(c)(3)(B) prosecutions in a principled and predictable
way—just as they have for decades with many other
substantial-risk criminal statutes. As Judge Niemeyer
wrote in his separate opinion in the Fourth Circuit, “the
parties in those cases had little difficulty understanding,
enforcing, or defending the §924(c)(1) charges at issue.”
United States v. Simms, 914 F.3d 229, 264 (2019).18
In short, §924(c)(3)(B) is a garden-variety, substantial-
risk criminal law. Section 924(c)(3)(B) is not unconstitu-
tionally vague.
II
This case therefore should be straightforward. But the
Court complicates things by engaging in a two-step dance
——————
18 Judge Niemeyer’s opinion was joined by Judges Wilkinson, Duncan,
Agee, Keenan, and Quattlebaum.
12 UNITED STATES v. DAVIS
KAVANAUGH, J., dissenting
that ends with the Court concluding that §924(c)(3)(B) is
unconstitutionally vague.
The Court’s first step is to construe §924(c)(3)’s substantial-
risk prong to require an ordinary-case categorical ap-
proach rather than a conduct-specific approach. In other
words, the Court says that a defendant’s guilt or innocence
under §924(c)(3)’s substantial-risk prong hinges on a
judge’s assessment of how a hypothetical defendant would
ordinarily commit the underlying crime. In the Court’s
view, a defendant’s guilt or innocence under §924(c)(3)’s
substantial-risk prong does not depend on a jury’s finding
about how the actual defendant actually committed the
underlying crime.
The Court’s second step is based on the Court’s deci-
sions in Johnson and Dimaya. The Court says that the
ordinary-case categorical approach makes §924(c)(3)(B)
unconstitutionally vague.
For purposes of this case, the Court’s error is its first
step—that is, in construing the substantial-risk prong of
§924(c)(3) to require an ordinary-case categorical ap-
proach. For three reasons, I disagree with the Court’s
analysis. First, the Court’s justifications in Johnson and
Dimaya for adopting the categorical approach do not apply
in the context of §924(c). Second, the text of §924(c)(3)(B)
is best read to focus on the actual defendant’s actual con-
duct during the underlying crime, not on a hypothetical
defendant’s imagined conduct during an ordinary case of
the underlying crime. Third, even if the text were ambig-
uous, the constitutional avoidance canon requires that we
interpret the statute to focus on the actual defendant’s
actual conduct.
I will address those three points in Parts II–A, II–B, and
II–C.
A
According to the Court, if §924(c)(3)(B) focused on the
Cite as: 588 U. S. ____ (2019) 13
KAVANAUGH, J., dissenting
defendant’s conduct during the underlying crime, then it
would not be unconstitutionally vague. But §924(c)(3)(B),
as the Court reads it, focuses on a hypothetical defend-
ant’s conduct during an ordinary case of the underlying
crime. As a result, the Court says that §924(c)(3)(B) is
unconstitutionally vague.
But it makes little sense, as I see it, to say that
§924(c)(3)(B)’s substantial-risk inquiry focuses on whether
a hypothetical defendant’s imagined conduct during an
ordinary case of the crime creates a substantial risk that
physical force may be used, rather than on whether the
actual defendant’s actual conduct during the actual crime
created a substantial risk that physical force may be used.
Why would we interpret a federal law that criminalizes
current-offense conduct to focus on a hypothetical defend-
ant rather than on the actual defendant? As Judge New-
som cogently wrote for the Eleventh Circuit en banc ma-
jority, “If you were to ask John Q. Public whether a
particular crime posed a substantial risk of violence,
surely he would respond, ‘Well, tell me how it went
down—what happened?’ ” Ovalles, 905 F.3d, at 1241.19
Why does the Court read the substantial-risk prong in
such an unnatural way? The Court explains that Johnson
interpreted similar substantial-risk language to require
the ordinary-case categorical approach. See 576 U. S., at
___–___ (slip op., at 12–13). A plurality of the Court did
the same in Dimaya. See 584 U. S., at ___–___ (slip op., at
12–15). And the Court today casts this case as the third
installment in a trilogy with a predictable ending, one that
was supposedly foreordained by Johnson and Dimaya.
The gaping hole in the Court’s analysis, in my view, is
that Johnson and Dimaya addressed statutes that im-
——————
19 Judge Newsom’s majority opinion was joined by Chief Judge Ed
Carnes and Judges Tjoflat, Marcus, William Pryor, Rosenbaum,
Branch, and Hull.
14 UNITED STATES v. DAVIS
KAVANAUGH, J., dissenting
posed penalties based on a defendant’s prior criminal
convictions.
In Johnson, the Court interpreted a definition of “violent
felony” that was used in sentencing proceedings to classify
prior convictions as predicates for stricter sentences. See
§§924(e)(1), (e)(2)(B). In Dimaya, the Court interpreted a
definition of “crime of violence” that was used in immigra-
tion proceedings to classify prior convictions as predicates
for more severe immigration consequences. See §16 (de-
fining “crime of violence”); 8 U.S. C. §1101(a)(43)(F) (in-
corporating 18 U.S. C. §16); 8 U.S. C. §1227(a)(2)(A)(iii)
(deportation); §§1229b(a)(3), (b)(1)(C) (ineligibility for
cancellation of removal and adjustment of status).
In interpreting those statutes, the Court employed the
ordinary-case categorical approach to assess an individual’s
past convictions. And application of that categorical ap-
proach, the Court then said, rendered the statutes at issue
in those cases unconstitutionally vague. See Dimaya, 584
U. S., at ___–___ (slip op., at 9–11); Johnson, 576 U. S., at
___–___ (slip op., at 5–6).20
Two important principles drove the Court’s adoption of
the categorical approach in the prior-conviction context in
Johnson and Dimaya.
First, in the prior-conviction cases, the Court empha-
sized that the categorical approach avoids the difficulties
and inequities of relitigating “past convictions in minitri-
als conducted long after the fact.” Moncrieffe v. Holder,
569 U.S. 184, 200–201 (2013). Without the categorical
approach, courts would have to determine the underlying
——————
20 Tellingly, the Government in Johnson and Dimaya did not dispute
that the categorical approach was the proper method of interpreting the
statutes at issue. See Sessions v. Dimaya, 584 U. S. ___, ___ (2018)
(plurality opinion) (slip op., at 13); Johnson v. United States, 576 U. S.
___, ___ (2015) (slip op., at 13). In this case, the Government strenu-
ously disputes the applicability of the categorical approach precisely
because the inquiry is not about past convictions.
Cite as: 588 U. S. ____ (2019) 15
KAVANAUGH, J., dissenting
conduct from years-old or even decades-old documents
with varying levels of factual detail. See Taylor v. United
States, 495 U.S. 575, 601–602 (1990). The factual state-
ments that are contained in those documents are often
“prone to error.” Mathis v. United States, 579 U. S. ___,
___ (2016) (slip op., at 10). The categorical approach
avoids the unfairness of allowing inaccuracies to “come
back to haunt the defendant many years down the road.”
Id., at ___ (slip op., at 11). The Court has echoed that
reasoning time and again. See, e.g., Dimaya, 584 U. S., at
___ (plurality opinion) (slip op., at 15); Johnson, 576 U. S.,
at ___ (slip op., at 13); Descamps v. United States, 570
U.S. 254, 270 (2013); Chambers v. United States, 555
U.S. 122, 125 (2009).
Second, in the prior-conviction cases, the Court insisted
on the categorical approach to avoid “Sixth Amendment
concerns.” Descamps, 570 U.S., at 269. The Sixth
Amendment, as interpreted by this Court’s precedents,
does not allow a judge (rather than a jury) to make factual
determinations that increase the maximum penalty. See
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). The
Court has read its Sixth Amendment precedents to require
the categorical approach. Under the categorical approach,
the judge looks only to the fact of conviction and the statu-
tory definition of the prior offense. The Court has reiterated
those Sixth Amendment concerns in countless categorical-
approach cases. See, e.g., Dimaya, 584 U. S., at ___
(plurality opinion) (slip op., at 13); Mathis, 579 U. S., at
___ (slip op., at 10); Shepard v. United States, 544 U.S. 13,
24–25 (2005) (plurality opinion); Taylor, 495 U.S., at 601.
In short, the Court in Johnson and Dimaya employed
something akin to the constitutional avoidance doctrine to
read the statutes at issue to avoid practical and Sixth
Amendment problems. In the words of JUSTICE THOMAS,
the “categorical approach was never really about the best
reading of the text.” Dimaya, 584 U. S., at ___ (dissenting
16 UNITED STATES v. DAVIS
KAVANAUGH, J., dissenting
opinion) (slip op., at 28). As Judge Raggi has perceptively
stated: “[C]onstitutional avoidance informed the original
categorical-approach mandate.” United States v. Barrett,
903 F.3d 166, 179 (CA2 2018).
But neither of the two reasons identified in Johnson and
Dimaya applies to 18 U.S. C. §924(c)(3)(B)—not even a
little.
First, §924(c) does not require examination of old con-
duct underlying a prior conviction. Section 924(c) operates
entirely in the present. In a §924(c) prosecution, there are
ordinarily two charged crimes: the underlying crime and
the §924(c) offense. Here, for example, the defendants
were charged with conspiracy to commit robbery and with
the §924(c) offense. The defendant’s conduct during the
underlying crime is part of the §924(c) offense. The con-
duct charged in the §924(c) offense is in front of the jury (if
the case goes to trial) or accepted by the defendant in the
plea agreement (if the defendant pleads guilty). The
indictment must allege specific offense conduct, and that
conduct must be proved with real-world facts in order to
obtain a conviction. There is no need to worry about stale
evidence or unavailable witnesses. Nor is there any need
to worry about inaccuracies in years-old or decades-old
documents coming back to haunt the defendant.
Second, §924(c) likewise raises no Sixth Amendment
concerns. A jury will find the facts or, if the case ends in a
guilty plea, the defendant will accept the facts in the plea
agreement. For the §924(c) charge, as relevant here, a
jury must find that the defendant’s conduct “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.” The defendant has the oppor-
tunity to contest the relevant facts either at the trial or in
plea negotiations. No Sixth Amendment issue arises in a
§924(c) prosecution.
No practical or Sixth Amendment problems exist with
Cite as: 588 U. S. ____ (2019) 17
KAVANAUGH, J., dissenting
§924(c)(3)(B). Indeed, the Court itself acknowledges that
“a case-specific approach wouldn’t yield the same practical
and Sixth Amendment complications” that arose in John-
son and Dimaya. Ante, at 8.
We should recognize that Johnson and Dimaya dealt
with an entirely different context: prior convictions. There
is no need to follow Johnson and Dimaya off the cliff here.
We should read §924(c)(3)(B) like the dozens of other
substantial-risk statutes in federal and state criminal law:
to focus on the actual defendant’s actual conduct during
the actual underlying crime, not on a hypothetical defend-
ant’s imagined conduct during an ordinary case of that
crime.
B
Now to the statutory text of §924(c)(3)(B). Even though
the context here is current-offense conduct, not past con-
victions, the Court says that the statutory language none-
theless compels a focus on a hypothetical defendant’s
imagined conduct, not on the actual defendant’s actual
conduct. I disagree. Criminal defendants are usually
punished based on what they actually did, not based on
what a hypothetical defendant might have done.
To begin with, the text of §924(c)(3)(B) must be inter-
preted against the backdrop of traditional criminal-law
practice. As described above, substantial-risk statutes are
commonplace in federal and state criminal law. Those
statutes ordinarily call for examination of the actual de-
fendant’s actual conduct during the actual crime. The
Court does not identify a single self-contained federal or
state law that defines the actus reus of the crime based on
the imagination of the judge about a hypothetical defend-
ant, rather than on the evidence before the jury about the
actual defendant.
This Court applied an exception in Johnson and Dimaya
for substantial-risk statutes that impose sentencing and
18 UNITED STATES v. DAVIS
KAVANAUGH, J., dissenting
other penalties based on past convictions. But that is an
exception for past convictions, not a rule for current-
offense conduct. Section 924(c)(3)(B) must be read in line
with the traditional, common practice of focusing on the
actual defendant’s actual conduct during the underlying
crime.
With that background, I turn to the precise text of
§924(c)(3). To repeat, the text of §924(c)(3) provides: A
defendant may not use or carry a firearm during and in
relation to, or possess a firearm in furtherance of, “an
offense that is a felony and” that either (A) “has as an
element the use, attempted use, or threatened use of
physical force against the person or property of another,”
or (B) “by its nature, involves a substantial risk that phys-
ical force against the person or property of another may be
used in the course of committing the offense.”
I will focus on four particular aspects of the statutory
text of §924(c)(3)(B).
First, start with the term “offense.” Section 924(c)(3)
has two prongs under which a defendant might qualify for
a §924(c) conviction: first, if the underlying crime auto-
matically qualifies as a crime of violence based on its
elements; and, second, if the defendant’s conduct during
the underlying crime created a substantial risk that phys-
ical force may be used, even if the underlying crime by its
elements does not constitute a crime of violence.
The term “offense” applies to both prongs. In the ele-
ments prong, the term refers to the elements of the under-
lying crime. In the substantial-risk prong, the term refers
to the defendant’s conduct during the underlying crime.
That is entirely commonplace and sensible.
Reading “offense” in that commonsense way follows
from the Court’s precedents interpreting the term “of-
fense.” As the Court has explained many times, the term
“offense” may “sometimes refer to a generic crime” and
may “sometimes refer to the specific acts in which an
Cite as: 588 U. S. ____ (2019) 19
KAVANAUGH, J., dissenting
offender engaged on a specific occasion.” Nijhawan v.
Holder, 557 U.S. 29, 33–34 (2009).21 Indeed, the single
term “offense” can refer to both in the same statutory
scheme. See, e.g., id., at 40; id., at 38 (listing other exam-
ples); United States v. Hayes, 555 U.S. 415, 421–422
(2009).
In United States v. Hayes, for example, the Court inter-
preted the term “misdemeanor crime of domestic violence.”
That term was defined as “an offense” that (1) “has, as an
element, the use or attempted use of physical force, or the
threatened use of a deadly weapon,” and (2) was “commit-
ted by” a person who has a particular relationship with
the victim. §921(a)(33)(A). The Court interpreted the
“offense that . . . has, as an element” language in that
provision to focus on the legal prohibition, and interpreted
the “offense . . . committed by” language to focus on the
defendant’s conduct. See Hayes, 555 U.S., at 421–422. In
other words, the term “offense” was used once but had two
different meanings as applied to the two different parts of
the statutory provision.
Another example is the Immigration and Nationality
Act. That statute defines “aggravated felony” in part as
“an offense” (1) that “involves fraud or deceit” and (2) “in
which the loss to the victim or victims exceeds $10,000.” 8
U.S. C. §1101(a)(43)(M)(i). The Court interpreted the
“offense that . . . involves fraud or deceit” language to
focus on the legal prohibition. See Kawashima v. Holder,
565 U.S. 478, 483 (2012). And the Court interpreted the
“offense . . . in which the loss” language to focus on the
individual’s conduct. See Nijhawan, 557 U.S., at 40.
Again, the term “offense” was used once, but had two
——————
21 More generally, this Court has often said that “identical language
may convey varying content” in the same statute, based on context.
Yates v. United States, 574 U.S. 528, 537 (2015) (plurality opinion); see
also Utility Air Regulatory Group v. EPA, 573 U.S. 302, 319–320
(2014).
20 UNITED STATES v. DAVIS
KAVANAUGH, J., dissenting
different meanings as applied to the two different parts of
the statutory provision.
Section 924(c)(3) is the same kind of statutory provision.
It likewise encompasses both the legal prohibition (in
subpart (A)) and the defendant’s actual conduct (in sub-
part (B)). The term “offense” was read in Hayes, Ka-
washima, and Nijhawan to encompass both the legal
prohibition and the defendant’s conduct. The term should
be read that same way here.
Moreover, if the substantial-risk prong of §924(c)(3)
requires assessing a hypothetical defendant’s conduct
rather than the actual defendant’s conduct, then there
would be little daylight between the elements prong and
the substantial-risk prong. After all, a crime is defined by
its elements. The elements tell you what happens in an
ordinary case of a crime. To imagine how a hypothetical
defendant would have committed an ordinary case of the
crime, you would presumably look back to the elements of
the crime. But doing that under the substantial-risk
prong—as the Court would do—would just duplicate the
inquiry that already occurs under the elements prong.
That would defeat Congress’ purpose in adding the
substantial-risk prong to §924(c)(3)—namely, covering
defendants who committed crimes that are not violent by
definition but that are committed by particular defendants
in ways that create a risk of violence. There is no reason
to think that Congress meant to duplicate the elements
prong in the substantial-risk prong.22
The Court usually tries to avoid an interpretation of a
statutory provision that would make the provision redun-
dant and accomplish virtually nothing. See, e.g., Republic
——————
22 Thisduplication point is icing on a textual cake already frosted. In
other words, our interpretation of the term “offense” is informed by the
text and by our precedents. Our interpretation stands with or without
the duplication argument.
Cite as: 588 U. S. ____ (2019) 21
KAVANAUGH, J., dissenting
of Sudan v. Harrison, 587 U. S. ___, ___ (2019) (slip op., at
10); Dastar Corp. v. Twentieth Century Fox Film Corp.,
539 U.S. 23, 35 (2003); Mackey v. Lanier Collection
Agency & Service, Inc., 486 U.S. 825, 837 (1988); A. Scalia &
B. Garner, Reading Law: The Interpretation of Legal
Texts 174–179 (2012); W. Eskridge, Interpreting Law: A
Primer on How to Read Statutes and the Constitution
112–114 (2016). We should heed that principle here, and
recognize that the term “offense” in the substantial-risk
prong refers to the actual defendant’s conduct during the
underlying crime.
In short, the term “offense” in §924(c)(3), as applied to
the substantial-risk prong, focuses on the actual defend-
ant’s actual conduct, not on a hypothetical defendant’s
imagined conduct.
Second, §924(c)(3)(B) asks whether the defendant’s
offense “by its nature” involves a risk that physical force
may be used. In a vacuum, the “nature” of an offense
could be either “the metaphysical ‘nature’ of the offense” or
“the underlying facts of the offense.” Dimaya, 584 U. S.,
at ___ (THOMAS, J., dissenting) (slip op., at 24). But that is
because the term “offense” could refer to a legal prohibi-
tion or to the defendant’s actual conduct. As explained
above, however, the term “offense” as applied to the
substantial-risk prong refers to the actual defendant’s con-
duct during the underlying crime. It follows that “by its na-
ture” focuses on the nature of the actual defendant’s con-
duct during the crime. The phrase “by its nature” is
linked to the term “offense.” If the term “offense” refers to
the defendant’s actual conduct, then “by its nature” also
focuses on the defendant’s actual conduct.
Under the conduct-specific approach to the substantial-
risk prong, the “by its nature” language simply means that
the Government has to show more than a defendant’s
proclivity for crime and more than the mere fact that the
defendant was carrying a gun. The Government has to
22 UNITED STATES v. DAVIS
KAVANAUGH, J., dissenting
show that the defendant’s conduct by its nature during the
crime created a substantial risk that physical force may be
used.
In short, as JUSTICE THOMAS has pointed out, it “is
entirely natural to use words like ‘nature’ and ‘offense’ to
refer to an offender’s actual underlying conduct.” Ibid. So
it is here.
Third, §924(c)(3)(B) asks whether the defendant’s con-
duct “involves” a substantial risk that physical force may
be used. In Taylor v. United States, a case involving a
prior-conviction statutory provision, the Court pointed to
the absence of the word “involved” in adopting a categori-
cal approach. 495 U.S., at 600. And in Nijhawan v.
Holder, another case involving a prior-conviction statutory
provision, the Court explained that the word “involves” did
not support a categorical approach. 557 U.S., at 36.
Here, unlike in Taylor, the statute does use the word
“involves.” Under Taylor’s reasoning, the inclusion of the
word “involves” in §924(c)(3)(B) supports the conclusion
that §924(c)(3)(B) employs a conduct-specific approach
rather than a categorical approach.
Fourth, §924(c)(3)(B)’s use of the phrase “in the course of
committing the offense” indicates that the proper focus is
on the actual defendant’s actual conduct, not on a hypo-
thetical defendant’s imagined conduct. After all, the
underlying offense was committed by the actual defend-
ant, not by a hypothetical defendant. It strains common
sense to think that the “in the course of committing the
offense” language in §924(c)(3)(B) contemplates an inquiry
into a hypothetical defendant’s conduct during an ordinary
case of the crime.
Importantly, the law at issue in Johnson did not have
the “in the course of committing the offense” language.
§924(e)(2)(B)(ii). That is a major textual difference be-
tween the law in Johnson on the one hand and
§924(c)(3)(B) on the other hand. And that textual distinc-
Cite as: 588 U. S. ____ (2019) 23
KAVANAUGH, J., dissenting
tion further shows that §924(c)(3)(B) focuses on the actual
defendant’s actual conduct.
In short, those four textual indicators, while not all
entirely one-sided, together strongly suggest that
§924(c)(3)(B) focuses on the actual defendant’s actual
conduct during the actual crime, not on a hypothetical
defendant’s imagined conduct during an ordinary case of
the crime.
On top of all the language in the statute, §924(c)(3)(B)
does not contain the critical term that ordinarily marks a
categorical approach.
Section 924(c)(3)(B) does not use the term “conviction.”
This Court has historically recognized the term “convic-
tion” as a key textual driver of the categorical approach.
In cases such as Taylor and Johnson, the Court zeroed in
on the word “convictions.” See Johnson, 576 U. S., at ___
(slip op., at 13); Taylor, 495 U.S., at 600; see also Mathis,
579 U. S., at ___ (slip op., at 9); Moncrieffe, 569 U.S., at
191; Ovalles, 905 F.3d, at 1245. So too, the Court in
Leocal v. Ashcroft emphasized that the text of the INA
that incorporated §16(b) used the term “convicted.” 543
U.S. 1, 4, 7 (2004).23
The term “conviction” is nowhere to be found in the text
of §924(c)(3)(B). That should not come as a surprise, given
that §924(c)(3)(B) is a substantive criminal offense con-
cerned with the defendant’s current-offense conduct. The
absence of the term “conviction” in §924(c)(3)(B) strongly
——————
23 In Leocal, the Court interpreted §16(b) to require a categorical
approach. But unlike §924(c)(3)(B), that statutory provision applied in
the context of past convictions. See 8 U.S. C. §§1101(a)(43)(F),
1227(a)(2)(A)(iii); Sentencing Reform Act of 1984, §217(a), 98 Stat.
2021; Comprehensive Crime Control Act of 1984, §1202, 98 Stat. 2151.
To be sure, §16(b) was once incorporated into §924(c). But in 1986,
Congress severed the two provisions and included a standalone “crime
of violence” definition in §924(c). For those two reasons, §924(c)(3)(B)
need not and should not be interpreted in the same way as §16(b).
24 UNITED STATES v. DAVIS
KAVANAUGH, J., dissenting
supports a conduct-specific approach.
Put simply, the textual clues—both the words that are
used and the words that are not used—point strongly to
the conclusion that §924(c)(3)(B) requires a jury to assess
the actual defendant’s actual conduct during the underly-
ing crime. The conclusion becomes overwhelming when
considered against the general background of substantial-
risk statutes. To be sure, a statute can always be written
more clearly. But here, the textual toolkit leads decisively
to that conclusion.
C
But after all of that, suppose that you are not convinced.
Suppose that you think that this case is still a close call on
the text, even with the background of substantial-risk
statutes and the Court’s precedents. Indeed, suppose you
ultimately disagree with the above analysis of the text.
Even so, the Government still wins—unless it can be said
that §924(c)(3)(B) unambiguously requires a categorical
approach. Under the constitutional avoidance canon, the
precise question before us is not whether §924(c)(3)(B)
is best read to require a conduct-specific approach, but
rather (as the Court’s cases say) whether §924(c)(3)(B) can
reasonably, plausibly, or fairly possibly be interpreted to
require a conduct-specific approach. The answer to that
question is easy. Yes. See Hooper v. California, 155 U.S.
648, 657 (1895) (“reasonable”); Clark v. Martinez, 543
U.S. 371, 380 (2005) (“plausible”); Skilling v. United
States, 561 U.S. 358, 406 (2010) (“fairly possible” (internal
quotation marks omitted)).
The Court says that if §924(c)(3)(B) requires the categor-
ical approach, then it is unconstitutionally vague. But the
Court also says that if §924(c)(3)(B) focuses on the defend-
ant’s actual conduct, then it is constitutionally permissi-
ble. As the Court puts it, “a case-specific approach would
avoid the vagueness problems that doomed the statutes in
Cite as: 588 U. S. ____ (2019) 25
KAVANAUGH, J., dissenting
Johnson and Dimaya.” Ante, at 8. So the entire ball game
is whether it is fairly possible to interpret §924(c)(3)(B) to
require a conduct-specific approach. It surely is at least
fairly possible.
It is an elementary principle of statutory interpretation
that an ambiguous statute must be interpreted, whenever
possible, to avoid unconstitutionality. See generally Scalia,
Reading Law: The Interpretation of Legal Texts, at 247–
251; Eskridge, Interpreting Law: A Primer on How to
Read Statutes and the Constitution, at 317–322. That
uncontroversial principle of statutory interpretation dates
back to the Founding era. See Mossman v. Higginson, 4
Dall. 12, 14 (1800). As JUSTICE THOMAS has explained,
the traditional doctrine of constitutional avoidance com-
mands “courts, when faced with two plausible construc-
tions of a statute—one constitutional and the other uncon-
stitutional—to choose the constitutional reading.” Clark,
543 U.S., at 395 (dissenting opinion). This Court’s duty is
“not to destroy the Act if we can, but to construe it, if
consistent with the will of Congress, so as to comport with
constitutional limitations.” Civil Service Comm’n v. Letter
Carriers, 413 U.S. 548, 571 (1973). In discharging that
duty, “every reasonable construction must be resorted to,
in order to save a statute from unconstitutionality.”
Hooper, 155 U.S., at 657.
This Court’s longstanding practice of saving ambiguous
statutes from unconstitutionality where fairly possible
affords proper respect for the representative branches of
our Government. The Court has explained that “a pre-
sumption never ought to be indulged, that congress meant
to exercise or usurp any unconstitutional authority, unless
that conclusion is forced upon the Court by language
altogether unambiguous.” United States v. Coombs, 12
Pet. 72, 76 (1838).
In countless cases for more than 200 years, this Court
has recognized the principle that courts should construe
26 UNITED STATES v. DAVIS
KAVANAUGH, J., dissenting
ambiguous laws to be consistent with the Constitution.
See, e.g., McDonnell v. United States, 579 U. S. ___, ___–
___ (2016) (slip op., at 23–24); Skilling, 561 U.S., at 405–
409; Clark, 543 U.S., at 380–382; Edmond v. United
States, 520 U.S. 651, 658 (1997); Concrete Pipe & Prod-
ucts of Cal., Inc. v. Construction Laborers Pension Trust
for Southern Cal., 508 U.S. 602, 628–630 (1993); New
York v. United States, 505 U.S. 144, 170 (1992); Rust v.
Sullivan, 500 U.S. 173, 190–191 (1991); Public Citizen v.
Department of Justice, 491 U.S. 440, 465–467 (1989);
Communications Workers v. Beck, 487 U.S. 735, 762
(1988); Edward J. DeBartolo Corp. v. Florida Gulf Coast
Building & Constr. Trades Council, 485 U.S. 568, 575–
578 (1988); St. Martin Evangelical Lutheran Church v.
South Dakota, 451 U.S. 772, 780–781 (1981); Letter Carri-
ers, 413 U.S., at 571; Machinists v. Street, 367 U.S. 740,
749–750 (1961); Ashwander v. TVA, 297 U.S. 288, 348
(1936) (Brandeis, J., concurring); ICC v. Oregon-
Washington R. & Nav. Co., 288 U.S. 14, 40–42 (1933);
Crowell v. Benson, 285 U.S. 22, 62–63 (1932); Lucas v.
Alexander, 279 U.S. 573, 577–578 (1929); Richmond
Screw Anchor Co. v. United States, 275 U.S. 331, 345–346
(1928); Blodgett v. Holden, 275 U.S. 142, 148–149 (1927)
(opinion of Holmes, J.); Missouri Pacific R. Co. v. Boone,
270 U.S. 466, 471–472 (1926); Linder v. United States,
268 U.S. 5, 17–18 (1925); Panama R. Co. v. Johnson, 264
U.S. 375, 390 (1924); Texas v. Eastern Texas R. Co., 258
U.S. 204, 217 (1922); Baender v. Barnett, 255 U.S. 224,
225–226 (1921); United States v. Jin Fuey Moy, 241 U.S.
394, 401 (1916); United States ex rel. Attorney General v.
Delaware & Hudson Co., 213 U.S. 366, 407–408 (1909);
Hooper, 155 U.S., at 657; Grenada County Supervisors v.
Brogden, 112 U.S. 261, 268–269 (1884); Coombs, 12 Pet.,
at 76; Parsons v. Bedford, 3 Pet. 433, 448–449 (1830);
Mossman, 4 Dall., at 14.
To be clear, the case before us is not a case of avoiding
Cite as: 588 U. S. ____ (2019) 27
KAVANAUGH, J., dissenting
possible unconstitutionality. This is a case of avoiding
actual unconstitutionality. There is a debate about the
former practice. There is no real debate about the latter
rule. And it is the latter rule of statutory interpretation at
issue here.
Section 924(c)(3)(B) is best read to focus on the defend-
ant’s actual conduct. But at a minimum—given the text,
the background of substantial-risk laws, and the relevant
precedents—it is fairly possible to interpret §924(c)(3)(B)
to focus on the defendant’s actual conduct. Because that
reasonable interpretation would save §924(c)(3)(B) from
unconstitutionality, this case should be very straightfor-
ward, as Judge Newsom explained in his thorough majority
opinion in the Eleventh Circuit and as Judge Niemeyer
and Judge Richardson explained in their persuasive sepa-
rate opinions in the Fourth Circuit. Ovalles, 905 F.3d, at
1251; Simms, 914 F.3d, at 272 (opinion of Niemeyer, J.);
id., at 272–277 (opinion of Richardson, J.). We should
prefer the constitutional reading over the unconstitutional
reading.
The Court did not apply constitutional avoidance in
Johnson and Dimaya. Why not? In those two cases, the
Court explained, the canon of constitutional avoidance was
essentially rendered a nullity. That is because, as the
Court described the situation, the Court was between a
rock and a hard place. The categorical approach would
have led to Fifth Amendment vagueness concerns, whereas
applying the conduct-specific approach would have led to
Sixth Amendment jury-trial concerns. See Dimaya, 584
U. S., at ___–___ (plurality opinion) (slip op., at 13–14).
Here, by contrast, the Court is not between a rock and a
hard place. Applying the categorical approach to
§924(c)(3)(B) would lead to vagueness concerns, whereas
applying the conduct-specific approach would lead to no
constitutional concerns.
Faced with a choice between a rock and constitutionality,
28 UNITED STATES v. DAVIS
KAVANAUGH, J., dissenting
the Court chooses the rock. I do not understand that
choice.
The Court offers two related reasons for its choice to run
the statute into a rock. Neither reason holds up.
First, the Court concludes that the constitutional avoid-
ance canon must yield to the rule of lenity. That argu-
ment disregards the Court’s oft-repeated statements that
the rule of lenity is a tool of last resort that applies “only
when, after consulting traditional canons of statutory
construction,” grievous ambiguity remains. Hayes, 555
U.S., at 429 (internal quotation marks omitted); see also,
e.g., Ocasio v. United States, 578 U. S. ___, ___, n. 8 (2016)
(slip op., at 13, n. 8) (“after seizing everything from which
aid can be derived” (internal quotation marks omitted));
Muscarello v. United States, 524 U.S. 125, 138 (1998)
(same); United States v. Wells, 519 U.S. 482, 499 (1997)
(same); Reno v. Koray, 515 U.S. 50, 65 (1995) (same);
United States v. Shabani, 513 U.S. 10, 17 (1994) (“after
consulting traditional canons of statutory construction”);
Smith v. United States, 508 U.S. 223, 239 (1993) (“after
seizing every thing from which aid can be derived” (inter-
nal quotation marks and alterations omitted)); Moskal v.
United States, 498 U.S. 103, 108 (1990) (“after resort to
the language and structure, legislative history, and moti-
vating policies of the statute” (internal quotation marks
omitted)); Callanan v. United States, 364 U.S. 587, 596
(1961) (“at the end of the process of construing what Con-
gress has expressed”).
The constitutional avoidance canon is a traditional
canon of statutory interpretation. The constitutional
avoidance canon is employed to reach a reasonable inter-
pretation of an ambiguous statute. Where, as here, that
canon applies and yields such a reasonable interpretation,
no grievous ambiguity remains. The rule of lenity has no
role to play. Contrary to the Court’s assertion, the canon
of constitutional avoidance is not “at war” with the rule of
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KAVANAUGH, J., dissenting
lenity. Ante, at 19. The canon of constitutional avoidance
precedes the rule of lenity because the rule of lenity comes
into play (this Court has said countless times) only “after
consulting traditional canons of statutory construction.”
Hayes, 555 U.S., at 429 (emphasis added; internal quota-
tion marks omitted). The rule of lenity “comes into opera-
tion at the end of the process of construing what Congress
has expressed, not at the beginning as an overriding con-
sideration of being lenient to wrongdoers.” Callanan, 364
U.S., at 596.
In addition, the rule of lenity is triggered only in the
face of “grievous ambiguity.” Muscarello, 524 U.S., at 139
(internal quotation marks omitted). To reiterate,
§924(c)(3)(B) is best read to focus on the actual defendant’s
actual conduct. But to the extent that there is any ambi-
guity in §924(c)(3)(B), that ambiguity is far from grievous.
Second, and relatedly, the Court claims that the canon
of constitutional avoidance, as a general matter, cannot be
relied upon to broaden the scope of a criminal statute, as
opposed to narrowing the scope of a criminal statute. And
the Court says that the canon cannot be used here be-
cause, in the Court’s view, relying on the constitutional
avoidance canon in this case would expand the scope of
§924(c)(3)(B). I disagree for two independent reasons.
To begin with, that theory seems to come out of no-
where. The Court’s novel cabining of the constitutional
avoidance canon is not reflected in this Court’s precedents.
On the contrary, it contradicts several precedents. This
Court has applied the constitutional avoidance canon even
when avoiding the constitutional problems would have
broadened the statute’s scope. For example, in United
States v. Culbert, this Court rejected a narrowing con-
struction of the Hobbs Act because that construction
would have raised vagueness concerns. 435 U.S. 371, 374
(1978); see also United States v. Shreveport Grain & Ele-
vator Co., 287 U.S. 77, 82 (1932); cf. United States v.
30 UNITED STATES v. DAVIS
KAVANAUGH, J., dissenting
Grace, 461 U.S. 171, 176 (1983).
Moreover, the premise of this novel broadening/
narrowing theory is flawed. A categorical approach to
§924(c)(3)(B) would not be inherently narrower than a
conduct-specific approach. Each approach would sweep in
some crimes that the other would not. On the one hand,
some crimes that might be deemed categorically violent
sometimes may be committed in nonviolent ways. Those
crimes would be covered by the categorical approach but
not by a conduct-specific approach. On the other hand,
some categorically nonviolent crimes are committed in
violent ways. Those crimes would not be covered by the
categorical approach but would be covered by a conduct-
specific approach. See Johnson, 576 U. S., at ___ (ALITO,
J., dissenting) (slip op., at 12).
In sum, the constitutional avoidance canon makes this
an especially straightforward case. It is at least fairly
possible to read §924(c)(3)(B) to focus on the actual de-
fendant’s actual conduct during the actual crime. End of
case.
III
The consequences of the Court’s decision today will be
severe. By invalidating the substantial-risk prong of
§924(c)(3), the Court’s decision will thwart Congress’ law
enforcement policies, destabilize the criminal justice sys-
tem, and undermine safety in American communities. If
the law required those results, we would have to swallow
the consequences. But the law, in my respectful view,
does no such thing.
The Court’s decision means that people who in the
future commit violent crimes with firearms may be able to
escape conviction under §924(c). In enacting §924(c),
Congress sought to keep firearms away from violent crim-
inal situations. Today, the Court invalidates a critical
provision designed to achieve that goal. To be sure, many
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KAVANAUGH, J., dissenting
violent crimes still might fall within §924(c)(3)’s elements
clause. But many others might not. When defendants use
firearms during conspiracies to commit robbery, arsons,
attempted carjackings, and kidnapings, to name just a
few, they might no longer be subject to prosecution under
§924(c). See, e.g., Simms, 914 F.3d, at 233–234 (conspiracy
to commit robbery); United States v. Salas, 889 F.3d 681,
683–684 (CA10 2018) (arson); United States v. Jenkins,
849 F.3d 390, 393 (CA7 2017) (kidnaping).
To get a flavor of the offenders who will now potentially
avoid conviction under §924(c), consider a sample of those
offenders who have been convicted under §924(c)(3)’s
substantial-risk prong:
 One defendant committed assault with intent to
commit murder. The defendant shot his wife multiple
times while the couple was camping in Buffalo River
National Park. See United States v. Prickett, 839
F.3d 697, 698 (CA8 2016).
 One defendant committed arson. The defendant used
a molotov cocktail to firebomb the Irish Ink Tattoo
Shop. See Salas, 889 F.3d, at 683; United States v.
Salazar, 2014 WL 12788997, *1 (NM, Aug. 14, 2014).
 One defendant and others kidnaped a man who they
believed had stolen money and an Xbox from the de-
fendant. They beat the man severely and threatened
to kill him. See Pet. for Cert. in United States v. Jen-
kins, O. T. 2017, No. 17–97, p. 2.
 One defendant committed conspiracy to commit rob-
bery. The defendant and his co-conspirators planned
to steal Percocet and cash from a man they thought
was a drug dealer. Armed with a pistol and a crow-
bar, they broke into the man’s home by shattering a
sliding glass door and found three men there. One of
the defendant’s co-conspirators attacked all three men
with the crowbar, and the defendant threatened the
32 UNITED STATES v. DAVIS
KAVANAUGH, J., dissenting
men with a pistol multiple times. See United States v.
Douglas, 907 F.3d 1, 4–5 (CA1 2018).
 One defendant committed attempted carjacking.
Armed with guns and baseball bats, the defendant
and her co-conspirators robbed a grocery store and
carjacked two vehicles, pistol whipping the owner of
one of the vehicles in the process. They then attempted
to carjack a third vehicle. They approached a family
getting out of a minivan and demanded the keys. One
of the defendant’s co-conspirators hit a 13-year-old
girl in the mouth with a baseball bat. Another shot
an AK–47 at the girl’s family. See Ovalles, 905 F.3d,
at 1235.
 One defendant operated multiple houses of prostitu-
tion in Annapolis. The defendant threatened per-
ceived competitors with violence. He also beat and
threatened women, sometimes to compel them to en-
gage in prostitution. See United States v. Fuertes, 805
F.3d 485, 490–492 (CA4 2015).
 One defendant committed conspiracy to commit rob-
bery. In the middle of the night, the defendant and a
co-conspirator crawled into a McDonald’s through the
drive-through window. The defendant pointed a gun
at the restaurant’s manager and attempted to hit an-
other employee. The defendant demanded money,
and the manager complied. The defendant then re-
moved the money from the cash drawer, pistol
whipped the manager, threw the cash drawer at the
other employee, and fled the scene along with his co-
conspirators and $1,100. See Simms, 914 F.3d, at
232.
 One defendant committed conspiracy to commit rob-
bery. The defendant and his co-conspirators commit-
ted a string of armed robberies of small businesses.
During the robberies, they wore masks and gloves.
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KAVANAUGH, J., dissenting
They were armed with guns, knives, and baseball
bats. They injured several people during the course of
their robberies, breaking bones, drawing blood, and
knocking people out. They also shot and killed one of
their victims point blank. See Barrett, 903 F.3d, at
170, 184.
Those real-life stories highlight a second unfortunate
consequence of the Court’s decision. Many offenders who
have already committed violent crimes with firearms—
and who have already been convicted under §924(c)—may
be released early from prison. The Court’s decision will
apply to all defendants whose convictions are not yet final
on direct review and who preserved the argument. With
the benefit of this Court’s decision, many dangerous of-
fenders who received lengthy prison sentences as a result
of their violent conduct might walk out of prison early.
And who knows whether the ruling will be retroactive?
Courts will be inundated with collateral-review petitions
from some of the most dangerous federal offenders in
America. As Judge Niemeyer wrote in his separate opin-
ion in the Fourth Circuit, “thousands of §924(c)(1) convic-
tions will unnecessarily be challenged as premised on
what the majority today concludes is an unconstitutionally
vague provision, even though the parties in those cases
had little difficulty understanding, enforcing, or defending
the §924(c)(1) charges at issue.” Simms, 914 F.3d, at 264.
Moreover, defendants who successfully challenge their
§924(c) convictions will not merely be resentenced. Ra-
ther, their §924(c) convictions will be thrown out altogether.
That is because, to restate an obvious point, §924(c) de-
fines a substantive criminal offense. To be sure, the
§924(c) defendants may also be serving other sentences for
other convictions (for instance, if they were convicted of
and sentenced for the underlying crime of violence). But
with the benefit of the Court’s decision, they may be able
to get their §924(c) convictions tossed and lop off years—
34 UNITED STATES v. DAVIS
KAVANAUGH, J., dissenting
potentially decades—from their total prison time.
All because the Court thinks that §924(c)(3)(B) unam-
biguously compels a focus on the imagined conduct of a
hypothetical defendant rather than on the actual conduct
of the actual defendant. That analysis is not persuasive,
especially in light of the constitutional avoidance doctrine.
It is true that the Government once advocated for a cate-
gorical approach. But in the early years after Congress
added a “crime of violence” definition to §924(c), before
courts settled on a categorical approach, the Government
correctly argued for a conduct-specific approach to the
substantial-risk prong. See, e.g., United States v. Cruz,
805 F.2d 1464, 1469 (CA11 1986). The Government later
changed its tune only after the courts settled on a categor-
ical approach—at a time when it did not matter for consti-
tutional vagueness purposes, before Johnson and Dimaya.
In any event, the question is what to do now after Johnson
and Dimaya. The answer should not be hard. To quote
Judge William Pryor, writing for five judges in the Elev-
enth Circuit, how “did we ever reach the point where” we
“must debate whether a carjacking in which an assailant
struck a 13-year-old girl in the mouth with a baseball bat
and a cohort fired an AK–47 at her family is a crime of
violence? It’s nuts.” Ovalles, 905 F.3d, at 1253 (concur-
ring opinion).
To be sure, the consequences cannot change our under-
standing of the law. But when the consequences are this
bad, it is useful to double-check the work. And double-
checking here, in my view, reveals several problems:
relying on cases from the prior-conviction context whose
rationales do not apply in this current-offense context; not
fully accounting for the long tradition of substantial-risk
criminal statutes; not reading the words of the statute in
context and consistent with precedents such as Hayes; and
then, perhaps most problematically, misapplying the
longstanding constitutional avoidance canon. After
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KAVANAUGH, J., dissenting
double-checking, it should be evident that the law does not
compel those serious consequences. I am not persuaded
that the Court can blame this decision on Congress. The
Court has a way out, if it wants a way out.
* * *
The Court usually reads statutes with a presumption of
rationality and a presumption of constitutionality. In-
stead of reading §924(c)(3)(B) to ensure that it is constitu-
tional, the Court reads §924(c)(3)(B) in a way that makes
it unconstitutional. The bedrock principle that the Court
interprets ambiguous statutes to avoid unconstitutionality
is seemingly transformed into a principle of interpreting
ambiguous statutes to lead to unconstitutionality.
I respect and entirely understand how the Court got
here. Johnson and Dimaya were earth-rattling decisions.
But we should not follow Johnson and Dimaya off the
constitutional cliff in this different §924(c) context. Unlike
the statutes at issue in Johnson and Dimaya, this statute
is not a prior-conviction statute. This statute operates
entirely in the present and is not remotely vague. I re-
spectfully dissent.