Irma OVALLES, Petitioner - Appellant, v. UNITED STATES of America, Respondent - Appellee., 905 F.3d 1231

NEWSOM, Circuit Judge: The question before us is whether one of the key provisions of an important federal criminal statute, 18 U.S.C. § 924(c), is unconstitutionally vague. As relevant to our purposes, § 924(

c) makes it a federal offense-punishable by a term of imprisonment ranging from five years to life-for any person to use, carry, or possess a firearm in connection with a "crime of violence." 18 U.S.C. § 924(c)(1)(A). The provision challenged here- § 924(c)(3)'s "residual clause"-defines the term "crime of violence" to mean a felony "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." Id . § 924(c)(3)(B). This case is in some respects a successor to Johnson v.

United States , --- U.S. ----, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), and Sessions v. Dimaya , --- U.S. ----, 138 S.Ct. 1204, 200 L.Ed.2d 549 (2018), in which the Supreme Court invalidated similarly-worded residual clauses on vagueness grounds. In the wake of those decisions, all here seem to agree that if § 924(c)(3)'s residual clause is interpreted to require determination of the crime-of-violence issue using what (in court-speak) has come to be called the "categorical approach," the clause is doomed.

As the Supreme Court has explained and applied it, this categorical approach-which the provisions at issue in both Johnson and Dimaya were deemed to embody-does not permit consideration of a defendant's specific conduct or how she "might have committed [her crime] on a particular occasion," but rather focuses exclusively on "how the law defines the offense" as a formal matter and whether, in the abstract, "the kind of conduct that the crime involves in the ordinary case" meets the statutory standard. Johnson , 135 S.Ct. at 2557 (internal quotation marks and citation omitted).

In both Johnson and Dimaya , the Court concluded that application of a standard that requires a reviewing court "to 'imagine' an 'idealized ordinary case of the crime' " rendered the challenged clauses impermissibly vague. Dimaya , 138 S.Ct. at 1214 (quoting Johnson , 135 S.Ct. at 2557-58 ). On the flip side, Johnson and Dimaya also make clear-and it is common ground here-that if § 924(c)(3)'s residual clause is instead interpreted to incorporate what we'll call a "conduct-based approach" to the crime-of-violence determination, then the provision is not unconstitutionally vague.

As its name suggests, the conduct-based approach, in stark contrast to the categorical, focuses not on formal legal

definitions and hypothetical "ordinary case[s]," but rather on the real-world facts of the defendant's offense-i.e. , how the defendant actually went about committing the crime in question. And as the Supreme Court emphasized in Johnson -and then reiterated in Dimaya -there is no reason to "doubt the constitutionality of laws that call for the application of a qualitative standard such as 'substantial risk' to real-world conduct." Johnson , 135 S.Ct. at 2561 (quoted in Dimaya , 138 S.Ct. at 1214 ). The obvious (and decisive) question, then: Which is it here-categorical or conduct-based?

Because we find ourselves at this fork in the interpretive road-the categorical approach imperiling § 924(c)(3)'s residual clause, a conduct-based reading saving it-we invoke the canon of "constitutional doubt." Pursuant to that "elementary rule," the Supreme Court has long held, "every reasonable construction must be resorted to in order to save a statute from unconstitutionality." Hooper v. California , 155 U.S. 648, 657, 15 S.Ct. 207, 39 L.Ed. 297 (1895). The pivotal issue, therefore, is not whether § 924(c)(3)'s residual clause is necessarily , or even best , read to incorporate a conduct-based

interpretation-but simply whether it can "reasonabl[y]," see id .,"plausibl[y]," Clark v. Martinez , 543 U.S. 371, 381, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005), or "fairly possibl[y]," I.N.S. v. St. Cyr , 533 U.S. 289, 300, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), be so understood. Joining the Second Circuit, which recently came to the same conclusion, see United States v. Barrett , 903 F.3d 151 (2d Cir. 2018), we find that § 924(c)(3)(

B) can be read to embody the conduct-based approach-and therefore, under the constitutional-doubt canon, that it must be. Accordingly, we hold that § 924(c)(3)(

B) prescribes a conduct-based approach, pursuant to which the crime-of-violence determination should be made by reference to the actual facts and circumstances underlying a defendant's offense. To the extent that our earlier decision in United States v. McGuire , 706 F.3d 1333 (11th Cir. 2013), holds otherwise, it is overruled. I A Under 18 U.S.C. § 924(c), "any person who, during and in relation to any crime of violence ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm" is guilty of a federal offense and subject to a prison term ranging between five years and life. 18 U.S.C. § 924(c)(1)(A).

Section 924(

c) defines the term "crime of violence" as "an offense that is a felony" and- (

A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (

B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. Id. § 924(c)(3). For ease of reference-and as a way of facilitating comparisons with other similar statutes-we'll call Subsection (3)(

A) the "elements clause" and Subsection (3)(

B) the "residual clause." Importantly here, this Court held in United States v. McGuire that the question whether a predicate offense qualifies as a "crime of violence" under either subsection is one that a court "must answer 'categorically'-that is, by reference to the elements of the offense, and not the actual facts of [the defendant's] conduct." 706 F.3d 1333, 1336 (11th Cir. 2013) (citation omitted). B In 2010, Irma Ovalles was charged by information with six robbery- and carjacking-related offenses, all of which arose out of what can only be described as a three-day crime binge.

As particularly relevant here, Ovalles was charged with (1) attempted carjacking in violation of 18 U.S.C. § 2119 and (2) using and carrying a firearm during a "crime of violence"-the attempted carjacking-in violation of 18 U.S.C. § 924(c)(1)(A). Ovalles entered into a written plea agreement in which she admitted that "she [was] in fact guilty" on all six counts. At her plea hearing, the government outlined the elements of each crime, and Ovalles explained that she understood what the government would have to prove should she opt to go to trial.

The government then made a comprehensive factual proffer detailing Ovalles's involvement in the crimes. In general, the proffer summarized the evidence demonstrating that Ovalles and her co-conspirators (1) robbed a grocery store while armed with baseball bats, then (2) still wielding the bats, carjacked a Dodge Ram, then (3) carjacked a Toyota 4-Runner, pistol-whipping its owner, then (4) attempted to carjack a Chevy Venture-more on this one below-and finally (5) carjacked a Ford F-150 at gunpoint.

More specifically, concerning the attempted carjacking of the Chevy Venture-during which one of Ovalles's accomplices fired an AK-47, and which therefore serves as the predicate offense for Ovalles's § 924(

c) conviction-the government's proffer explained as follows: They see a family getting out of a Chevy Venture in Clayton County, Georgia, and as the family is getting out of their car, these two defendants along with their co-conspirators go up to the family and demand the keys to the car and demand the car. Now, they have a baseball bat and guns with them. There's a juvenile, a 13-year-old female, who is part of that family group of victims. They hit that juvenile in the mouth with a baseball bat. The damage to her I am sure will be addressed at sentencing. It was not-she did not go to the hospital.

Let me say that. They are demanding the keys. Somebody comes out of the apartment complex where this is happening and that person has a gun. He then confronts the assailants .... They flee, not taking the Chevy Venture, which is why it is an attempted carjacking. The government would show that the Chevy Venture traveled in interstate commerce, that it was not made in the State of Georgia. The government would prove it was these defendants not only through their confessions as to this event, also through the victims' testimony. They do I.D. the defendants in this particular case.

On the way out of the apartment complex ... co-conspirator ... Jerry Arriaga ... has an AK-47 style assault rifle and he then discharges that gun several times towards the victim family, the guy who came to rescue them, who was armed, and the car, and that is the basis of Count Five, the use of a firearm during and in relation to a crime of violence. With respect to each of the charges-including, as relevant here, the attempted-carjacking and § 924(

c) counts-Ovalles stated that she had no "material disagreement with what the government sa[id] it could prove ...." Having heard the government's

summary of the evidence against her, Ovalles pleaded guilty to each of the charged offenses, acknowledged that her pleas were voluntary, and explained that she was so pleading because she was "in fact guilty as charged in the criminal information." The district court thereafter sentenced Ovalles to serve 120 months in prison on the § 924(

c) count-which, per the statute, the court imposed to run consecutively to the concurrent 108-month terms on the remaining charges. Ovalles did not object to her sentences, nor did she file a direct appeal. C Several years later, Ovalles filed a motion for relief under 28 U.S.C. § 2255 contending that her § 924(

c) conviction and sentence were unconstitutional in light of the Supreme Court's intervening decision in Johnson v. United States , --- U.S. ----, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). In short, the Court in Johnson invalidated as unconstitutionally vague the Armed Career Criminal Act's residual clause-which, for purposes of applying that statute's recidivism-based sentence enhancement, defines the term "violent felony" to include any crime that is punishable by a year in prison and that "involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii).

The Court voided the ACCA's residual clause principally based on its conclusion that the provision necessitated the categorical approach to determining whether an underlying conviction constitutes a "violent felony." See Johnson , 135 S.Ct. at 2557-58, 2561-63. Ovalles asserted that because § 924(c)(3)'s residual clause is "nearly identical to" the ACCA's, Johnson 's reasoning rendered it unconstitutional, as well. Accordingly, she argued, she was "no longer guilty of violating" § 924(

c) because her predicate attempted-carjacking offense "no longer qualifie[d] as a crime of violence under § 924(c)(3)(B)." The district court denied Ovalles's § 2255 motion, reasoning that § 924(c)(3)'s residual clause did "not suffer from the same unpredictability" as the ACCA's. The court subsequently granted Ovalles a certificate of appealability on the question whether § 924(c)(3)(

B) is unconstitutionally vague under Johnson . A panel of this Court affirmed the district court's decision. For our purposes, the panel's opinion did two significant things. First, in accordance with (and citing to) our earlier decision in McGuire , it held that the question whether Ovalles's attempting-carjacking offense constitutes a "crime of violence" within the meaning of § 924(c)(3) had to be answered using the categorical approach. See Ovalles v. United States , 861 F.3d 1257, 1268-69 (11th Cir. 2017), reh'g en banc granted, opinion vacated , 889 F.3d 1259 (11th Cir. 2018).

Second, though-and notwithstanding its application of the categorical approach-the panel held that Johnson did not invalidate § 924(c)(3)'s residual clause because, it said, the definition of "crime of violence" in § 924(c)(3)(

B) is clearer than the definition of "violent felony" in the ACCA. Id. at 1265-66. In particular, the panel emphasized (1) that § 924(c)(3)'s residual clause refers not (as does the ACCA'

s) to the risk of "physical injury," but rather to the risk of "physical force," which it thought was more precise; (2) that § 924(c)(3)(B)'s inclusion of the qualifying phrase "in the course of committing the offense"-which is absent from the ACCA-narrows the statute's reach; and (3) that § 924(c)(3)'s residual clause isn't plagued (and confused, as is the ACCA'

s) by linkage to a disjointed hodgepodge of enumerated offenses. Id. at 1266. Not long after the panel issued its opinion, the Supreme Court decided Sessions v. Dimaya , --- U.S. ----, 138 S.Ct. 1204, 200 L.Ed.2d 549 (2018). There, following Johnson , the Court struck down 18 U.S.C. § 16's residual clause (at least as that clause is incorporated by a provision of the Immigration and Nationality Act prescribing the bases on which aliens may be rendered removable).

Section 16's residual clause is similar to the clause invalided in Johnson and essentially identical to § 924(c)(3)'s residual clause at issue here. Once again applying the categorical approach-there, to determining whether an alien's prior conviction qualified as a "crime of violence"-the Court concluded that § 16's residual clause is unconstitutionally vague under the reasoning of Johnson . Dimaya , 138 S.Ct. at 1214-15.

Notably, in the course of its opinion, the Dimaya Court rejected, with respect to § 16(b), many of the same textual arguments that the panel decision in this case had embraced as bases for distinguishing § 924(c)(3)'s residual clause from the ACCA's. See id . at 1218-21.

In light of the Supreme Court's decision in Dimaya , we vacated the panel's opinion and took this case en banc to determine (1) whether 18 U.S.C. § 924(c)(3)'s residual clause is unconstitutionally vague under Dimaya and (2) whether we should overrule McGuire to the extent that it requires a categorical approach to determining whether an offense constitutes a "crime of violence" within the meaning of § 924(c)(3)(B). II At the outset, some table-setting is in order. How exactly did we get here?

Why did the Supreme Court conclude in both Johnson and Dimaya that the residual clauses before it were unconstitutionally vague, and what do the decisions in those cases tell us about § 924(c)(3)'s own residual clause? Here's how-and why, and what. A We begin with a deeper dive into Johnson . As already explained briefly, Johnson involved the ACCA, which prescribes a mandatory minimum 15-year sentence for any person who already "has three previous convictions ... for a violent felony ... committed on occasions different from one another." 18 U.S.C. § 924(e)(1).

The ACCA goes on to define the term "violent felony" to mean any crime punishable by a term of imprisonment exceeding one year that- (

i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.] 18 U.S.C. § 924(e)(2)(B). Subsection (B)(

i) of the ACCA's definitional provision is called (as we have called § 924(c)'s parallel provision) the "elements clause," while Subsection (B)(ii) contains both the "enumerated-offenses clause" and separately (and again like § 924(c)'s catch-all) the "residual clause." Beeman v. United States , 871 F.3d 1215, 1218 (11th Cir. 2017). In striking down the ACCA's residual clause as unconstitutionally vague, the Supreme Court in Johnson emphasized "[t]wo features." 135 S.Ct. at 2557.

For one thing, the Court pointed to the statute's hazy "serious potential risk" standard, which it said "leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony." Id . at 2558.

Far more problematic, the Court explained, was the fact that the ACCA's residual clause had long been construed to incorporate the categorical approach-which, the Court observed, entails a "speculative," "idealized" analysis that "ties the judicial assessment of risk to a judicially imagined 'ordinary case' of a crime, not to real-world facts or statutory elements," and thus "leaves grave uncertainty about how to estimate the risk posed by a crime." Id. at 2557-58.

Indeed, the Court made clear that application of the categorical approach was the hinge on which its vagueness determination turned: "It is one thing," the Court stressed, "to apply an imprecise 'serious potential risk' standard to real-world facts; it is quite another to apply it to a judge-imagined abstraction" of the sort required by the categorical approach. Id . at 2558.

Continuing in the same vein, the Court reiterated that "[a]s a general matter, 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." Id . at 2561. But, the Court held, the categorical approach's focus on the "idealized ordinary case" requires an "abstract inquiry" that "offers significantly less predictability than one that deals with" actual facts. Id . (internal quotation marks and citation omitted). B Next, Dimaya .

There, the Court considered a provision of the INA that renders an alien removable if he is "convicted of an aggravated felony at any time after admission." 8 U.S.C. § 1227(a)(2)(A)(iii). The INA goes on to define the term "aggravated felony" to include, by statutory cross-reference, "a crime of violence (as defined in

section 16 of Title 18 [ ) ]." Id . § 1101(a)(43)(F).

Section 16's definition of "crime of violence," in turn, reads a lot like the ACCA's definition of "violent felony" at issue in Johnson : (

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. 18 U.S.C. § 16. Subsection (

a) is commonly called (you guessed it) the "elements clause" and Subsection (

b) the "residual clause." Dimaya , 138 S.Ct. at 1211. In Dimaya , the Supreme Court voided § 16's residual clause (again, as incorporated in the INA) as unconstitutionally vague, concluding that it shared the two features that had doomed the ACCA's residual clause in Johnson -namely, (1) a fuzzy "substantial risk" standard and (2) incorporation of the categorical approach to determining the violence of the underlying crime. Id. at 1213-14.

Significantly, though, just as in Johnson , the Dimaya Court stressed that § 16(b)'s vagueness problem resulted principally from the categorical approach: "The [ Johnson ] Court emphasized that [the 'serious potential risk' standard] alone would not have violated the void-for-vagueness doctrine: Many perfectly constitutional statutes use imprecise terms like 'serious potential risk' (as in ACCA's residual clause) or 'substantial risk' (as in § 16's). The problem came from layering such a standard on top of the requisite 'ordinary case' inquiry" required by the categorical approach.

Id. at 1214 (citing Johnson , 135 S.Ct. at 2561 ). As Justice Thomas summarized in his dissent-without pushback-"[t]he sole reason that the Court deem[ed] § 16(

b) unconstitutionally vague is because it read[ ] the statute as incorporating the categorical approach," without which "the Court 'd[id] not doubt' the constitutionality of § 16(b)." Id. at 1252 (Thomas, J., dissenting). An important caveat about Dimaya 's application of the categorical approach to invalidate § 16's residual clause: Only a plurality of the Court concluded that the statute actually requires the categorical approach. Justice Gorsuch, who provided the decisive fifth vote, concurred separately on the assumption-but not a determination-that § 16(

b) incorporates the categorical approach. Id. at 1232 (Gorsuch, J., concurring in part and concurring in the judgment) (stating that he was "proceed[ing] on the premise" that the categorical approach applied). Justice Gorsuch emphasized that he "remain[s] open to different arguments about [Supreme Court] precedent and the proper reading of language like" that found in § 16(b), and that he "would address them in another case, whether involving the INA or a different statute, where the parties have a chance to be heard and we might benefit from their learning." Id . at 1233.

C So what do Johnson and Dimaya portend for § 924(c), which again, as relevant here, makes it a federal offense to use, carry, or possess a firearm in connection with a "crime of violence"-which again, as relevant here, means a felony offense that "by its nature, involves a substantial risk that physical force ... may be used in the course of committing the offense," 18 U.S.C. § 924(c)(3)(B) ? Allow us first to state the obvious:

Section 924(c)(3)'s residual clause is identical-in every jot and tittle-to § 16's, which the Supreme Court struck down in Dimaya . Next, the less obvious but no less true: While the panel decision in this case offered several distinctions between § 924(c)(3)'s residual clause and the ACCA's-which at the time had recently been invalidated in Johnson -the Supreme Court's intervening decision in Dimaya (in a portion of the opinion joined by a majority of the justices) demolished all of them.

As already noted, the panel first emphasized that § 924(c)(3)'s residual clause refers not to the risk of "physical injury" but to the risk of "physical force," which it said was "much more definite." 861 F.3d at 1263. When the government asserted the same injury-force distinction in seeking to save § 16(

b) in Dimaya , the Court flatly rejected it, holding that "this variance in wording cannot make ACCA's residual clause vague and § 16(

b) not." 138 S.Ct. at 1221. Second, the panel thought that § 924(c)(3)(B)'s inclusion of the qualifying phrase "in the course of committing the offense"-which is missing from the ACCA-narrowed the statute's reach. 861 F.3d at 1266. Wrong, said the Dimaya Court in addressing the identical argument aimed at § 16's residual clause: "Th[at] phrase ... cannot cure the statutory indeterminacy Johnson described." 138 S.Ct. at 1220.

Finally, the panel reasoned that § 924(c)(3)'s residual clause was clearer, in a constitutional sense, because it wasn't linked, as was the ACCA's, to a "confusing list" of enumerated offenses. 861 F.3d at 1266. Wrong again, Dimaya held with respect to § 16, which likewise lacks an enumerated-offenses clause: Even if one "[s]trip[s] away the enumerated crimes," the Court said, "textual indeterminacy" remains. 138 S.Ct. at 1221.

In short, in the course of rebuffing the government's attempts to distinguish § 16's residual clause from the ACCA's, the Dimaya Court explicitly rejected the very same arguments that the panel in this case had adopted as a means of distinguishing § 924(c)(3)'s residual clause-calling them "minor linguistic disparities" that didn't "make[ ] any real difference." Id. at 1223.

Accordingly, it seems clear that if we are required to apply the categorical approach in interpreting § 924(c)(3)'s residual clause-as the panel did, per our earlier decision in McGuire , and as the Supreme Court did in voiding the residual clauses before it in Johnson and Dimaya -then the provision is done for.

If, by contrast, we are not required to apply the categorical approach in interpreting § 924(c)(3)(B), then there is every reason to believe that the provision will survive, notwithstanding its incorporation of a "substantial risk" term-because, as the Supreme Court said in Johnson and then reiterated in Dimaya , there is no reason to "doubt the constitutionality of laws that call for the application of a qualitative standard such as 'substantial risk' to real-world conduct." Johnson , 135 S.Ct. at 2561 (quoted in Dimaya , 138 S.Ct. at 1214 ).

III That stark divergence-in which the categorical approach dooms § 924(c)(3)'s residual clause, while a conduct-based

interpretation salvages it-tees up the rule of "constitutional doubt." Simply stated, that canon of construction provides that "[a] statute should be interpreted in a way that avoids placing its constitutionality in doubt." Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 247 (2012). As the Supreme Court has explained it, the constitutional-doubt canon "is a tool for choosing between competing plausible

interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts." Clark v. Martinez , 543 U.S. 371, 381, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005). Under the canon, "when statutory language is susceptible of multiple

interpretations, a court may shun an

interpretation that raises serious constitutional doubts and instead may adopt an alternative that avoids those problems." Jennings v. Rodriguez , --- U.S. ----, 138 S.Ct. 830, 836, 200 L.Ed.2d 122 (2018). Indeed, the Supreme Court has held that courts are "obligated to construe [a] statute to avoid [constitutional] problems" if it is "fairly possible" to do so. I.N.S. v. St. Cyr , 533 U.S. 289, 300, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (citations omitted) (emphasis added). That is particularly true where (as here) absent a reasonable saving construction, a statute might be unconstitutionally vague.

See United States ex rel. Att'y Gen. v. Delaware & Hudson Co. , 213 U.S. 366, 407, 29 S.Ct. 527, 53 L.Ed. 836 (1909) (noting that courts have a "plain duty" to adopt any "reasonabl[e]"

interpretation of a statute that avoids vagueness concerns). The question here, therefore, is whether § 924(c)(3)'s residual clause is in fact "susceptible of multiple

interpretations," Jennings , 138 S.Ct. at 836 -and more particularly, whether it is "plausible," Clark , 543 U.S. at 381, 125 S.Ct. 716, or "fairly possible," St. Cyr , 533 U.S. at 300, 121 S.Ct. 2271, to interpret the clause to incorporate the (statute-preserving) conduct-based approach. Ovalles contends that the constitutional-doubt canon doesn't apply here because, she says, "the text of § 924(c)(3)(

B) is not open to competing, plausible

interpretations"-it can be understood only , she insists, to require the categorical approach. Appellant's En Banc Br. at 23; accord Dissenting Op. of J. Pryor at 1294 (asserting that a conduct-based reading "does not ... even approach plausible"). For the reasons explained below, we disagree. A In assessing whether § 924(c)(3)'s residual clause truly compels the categorical approach, we begin at the beginning: Where did this "categorical approach" come from? It's certainly not, it seems to us, the most intuitive way of thinking about a particular crime's risk of violence.

Surely the usual means of considering that issue would be to account for all of the specific circumstances surrounding the offense's commission-i.e. , the actual facts. 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 ?" How, then, did we get to the point where, in certain circumstances, reviewing courts are required to ignore the real-world facts in favor of a sterile academic inquiry into what the Johnson Court called "speculative," "idealized," "judge-imagined abstraction[s]"? 135 S.Ct. at 2557-58. And what are the considerations that have impelled the Supreme Court to conclude that certain statutes require application of the categorical approach?

That story follows. 1 The Supreme Court initially conceived the categorical approach in Taylor v. United States , 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The question there was whether the reference to "burglary" in the ACCA's enumerated-offenses clause meant burglary as defined by each of the 50 states' separate laws or, instead, burglary in some "generic" sense. Id. at 579-80, 110 S.Ct. 2143.

In concluding that the ACCA referred to "generic" burglary, the Court rejected not only the idea that the definition of "violent felony" should vary from state to state, but also the notion that the government, in seeking to prove the violence of the underlying crime, could introduce evidence about the "particular facts" of the defendant's conduct, and instead adopted what the Court dubbed-and we still call-a "categorical approach." Id . at 598-602, 110 S.Ct. 2143.

In explaining why the ACCA's enumerated-offenses clause requires the categorical approach, the Taylor Court emphasized two factors-one textual, the other practical. First, the Court concluded that when read in context, § 924(e)(2)(B)(ii)"most likely refers to the elements of the statute of conviction, not to the facts of each defendant's conduct." Id. at 600-01, 110 S.Ct. 2143.

The reason, the Court explained, is that the language of the ACCA's operative provision, § 924(e)(1), "refers to 'a person who ... has three previous convictions' for-not a person who has committed-three previous violent felonies or drug offenses." Id. at 600, 110 S.Ct. 2143. Congress's targeted focus on "convictions" rather than conduct, the Court reasoned, indicated that it "intended the sentencing court to look only to the fact that the defendant had been convicted of crimes falling within certain categories, and not to the facts underlying the prior convictions." Id.

Second, the Taylor Court stressed that in the ACCA context, "the practical difficulties and potential unfairness of a factual approach [would be] daunting." Id. at 601, 110 S.Ct. 2143. In particular, the Court worried about the amount of evidence that might need to be introduced at a sentencing hearing in order to reconstruct the circumstances underlying a defendant's prior (and often long-since-passed) convictions. Id.

Relatedly, the Court anticipated a Sixth Amendment problem that later decisions would amplify-namely, that judicial factfinding at sentencing about the real-world facts of crimes that led to prior convictions could "abridg[e a defendant's] right to a jury trial[.]" Id. ; see also Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.").

In short, the Taylor Court feared that if the parties could introduce evidence bearing on the violence of the defendant's past crimes, then sentencing proceedings might devolve into full-blown mini-trials (hence the impracticability) in which judges, rather than juries, were doing the factfinding (hence the Sixth Amendment concern). See 495 U.S. at 601-02, 110 S.Ct. 2143.

For these reasons-the text's focus on "convictions" and the impracticability (and unfairness) of effectively re-litigating the seriousness of stale crimes long after the fact-the Taylor Court concluded that for purposes of deciding whether a prior conviction constitutes a "violent felony," the "only plausible

interpretation" of § 924(e)(2)(B)(ii) is that it "generally requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense," and not to the actual circumstances of the defendant's crime. Id. at 602, 110 S.Ct. 2143. 2 The Supreme Court next applied the categorical approach in Leocal v. Ashcroft , 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), which held that a DUI conviction under Florida state law did not constitute a "crime of violence" within the meaning of 18 U.S.C. § 16, as that statute's definition applies in the INA.

The Court there concluded that § 16's language, like the ACCA's, "requires us to look to the elements and the nature of the offense of conviction, rather than to the particular facts relating to [the defendant's] crime." 543 U.S. at 7, 125 S.Ct. 377. In so doing, the Leocal Court didn't provide a detailed explanation. It simply stated that in both § 16's elements and residual clauses, "the statute directs our focus to the 'offense' of conviction"-and with respect to the residual clause in particular, noted its use of the phrase "by its nature." Id. at 7-8, 125 S.Ct. 377.

See 18 U.S.C. § 16(b) (defining "crime of violence" to mean an "offense that is a felony and that, by its nature, involves a substantial risk" of physical force); 8 U.S.C. § 1227(a)(2)(A)(iii) (rendering deportable an alien "convicted of" an aggravated felony, which under 8 U.S.C. § 1101(a)(43)(

F) includes a "crime of violence" as defined in 18 U.S.C. § 16 ). 3 That, for present purposes, brings us (back) to Johnson , in which, as already explained, the Supreme Court applied the categorical approach in the course of invalidating the ACCA's residual clause. See 135 S.Ct. at 2557-61. The Johnson Court insisted on the categorical approach-and refused a dissenting justice's suggestion that it consider the actual facts of the defendant's underlying crimes-for three reasons. Id. at 2561-62.

First, the Court noted that "the Government ha[d] not asked [it] to abandon the categorical approach in residual-clause cases" in favor of a conduct-based approach. Id. at 2562. Second, relying on and quoting its earlier decision in Taylor , the Court highlighted the ACCA's operative clause's focus on "convictions": " Taylor explained that the relevant part of the [ACCA] refers to a 'person who ... has three previous convictions' for-not a person who has committed-three previous violent felonies or drug offenses." Id . (internal quotation marks and citation omitted).

"This emphasis on convictions," the Johnson Court reiterated-again echoing Taylor -"indicates that Congress intended the sentencing court to look only to the fact that the defendant had been convicted of crimes falling within certain categories, and not to the facts underlying the prior convictions." Id. (internal quotation marks and citation omitted).

Third, and yet again channeling Taylor , the Johnson Court underscored-at least in the context of a statute, like the ACCA, that predicates a sentence enhancement on prior crimes-the "utter impracticability" of requiring a court "to reconstruct, long after the original conviction, the conduct underlying that conviction." Id. 4 Last came Dimaya , in which the Court applied the categorical approach in striking down § 16's residual clause-again, at least as that provision is incorporated by the INA. A four-justice plurality concluded that § 16(

b) incorporates the categorical approach for a handful of (now increasingly familiar) reasons. First, as in Johnson , the plurality noted that the government hadn't advocated a conduct-based approach: "To begin where Johnson did, the Government once again 'has not asked us to abandon the categorical approach in residual-clause cases.' " Dimaya , 138 S.Ct. at 1217 (quoting Johnson , 135 S.Ct. at 2562 ).

Second, the plurality emphasized that the categorical approach was adopted "in part to avoid the Sixth Amendment concerns that would arise from sentencing courts' making findings of fact that properly belong to juries." Id . (internal quotation marks and citation omitted). Third, the plurality explained that "[b]est read," the text of § 16's residual clause incorporates the categorical approach. Id. Quoting the Court's earlier decision in Nijhawan v.

Holder , 557 U.S. 29, 34, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009), the plurality stated: Simple references to a 'conviction,' 'felony,' or 'offense,' ... are 'read naturally' to denote the 'crime as generally committed.' And the words 'by its nature' in § 16(

b) make that meaning all the clearer. The statute, recall, directs courts to consider whether an offense, by its nature, poses the requisite risk of force. An offense's 'nature' means its 'normal and characteristic quality.' Dimaya , 138 S.Ct. at 1217 (internal citations omitted). Fourth, and relatedly, the plurality said that "the same conclusion follows if we pay attention to language that is missing from § 16(b)." Id. at 1218. In particular, the plurality reasoned, "the absence of terms alluding to a crime's circumstances, or its commission, makes a [conduct]-based

interpretation an uncomfortable fit." Id. Finally, following Taylor and Johnson , the plurality stressed the "utter impracticability" of applying a conduct-based approach to a statute, like § 16(b), that requires consideration of prior convictions-in particular, the "daunting difficulties of accurately reconstructing, often many years later, the conduct underlying a conviction." Id. (internal quotation marks omitted). As already noted, Justice Gorsuch concurred separately in Dimaya , explaining that he was "proceed[ing] on the premise"-without definitively concluding-that as used in the INA, § 16(

b) incorporates the categorical approach. Id. at 1232 (Gorsuch, J., concurring in part and concurring in the judgment). He gave several reasons for his circumspection: (1) "because no party [had] argued for a different way to read" the provision at issue; (2) because Supreme Court precedent (by which he presumably meant Leocal ) "seemingly require[d]" application of the categorical approach to § 16(b) ; and (3) "because the government itself ha[d] conceded (repeatedly) that the law compels" the categorical approach in immigration-related § 16(

b) cases. Id . He emphasized, though, that he would "remain open" in future cases "to different arguments about our precedent and the proper reading of language like" that found in § 16(b). Id. at 1233. * * * So ... what are the takeaways? What factors have led the Supreme Court to conclude that a statute requires the categorical approach?

The decisions interpreting the ACCA and § 16 reveal that the Court has historically applied the categorical approach to those statutes' residual clauses for the following reasons: 1. because the government never asked the Court to consider a conduct-based approach ( Johnson , Dimaya ); 2. because the text of those statutes' operative provisions focused not on conduct, but rather on "convictions"-and thus, the Court reasoned, solely on formal legal elements ( Taylor , Johnson ); 3. because those statutes' definitional provisions used terms and phrases like "offense," "felony," and "by its nature," which the Court concluded pointed toward a categorical (rather than conduct-based) inquiry ( Leocal , Dimaya ); 4. because those statutes lacked any reference to the underlying crime's commission or circumstances ( Dimaya ); 5. because applying the categorical approach would avoid the impracticability of requiring sentencing courts to engage in after-the-fact reconstructions of the circumstances underlying prior convictions ( Taylor , Johnson , Dimaya ); and 6. because applying the categorical approach would avoid the Sixth Amendment issues that could arise from sentencing courts making findings of fact that properly belong to juries ( Taylor , Johnson , Dimaya ).

The decisive question, it seems to us, is whether those considerations require us to interpret § 924(c)(3)'s own residual clause to incorporate the categorical approach-or whether, instead, the clause can "plausibly" be read to incorporate the conduct-based approach. For reasons explained below, we conclude that § 924(c)(3)(

B) can at the very least plausibly be read to bear a conduct-based

interpretation, and we therefore hold, pursuant to the canon of constitutional doubt, that because the conduct-based reading spares the residual clause from the near-certain death to which the categorical approach would condemn it, the conduct-based approach must prevail. In so doing, we join the Second Circuit, which also recently concluded-likewise applying the constitutional-doubt canon-that § 924(c)(3)(

B) should be interpreted to embody the conduct-based approach. See United States v. Barrett , 903 F.3d 166, 177-85, 2018 WL 4288566, at *9-14 (2d Cir. Sept. 10, 2018). B Although it's not particularly elegant-in fact, it's downright clunky and more than a little repetitive-there's really not a better way to assess whether the Supreme Court's own stated reasons for adopting the categorical approach in the ACCA and immigration-related § 16 contexts likewise compel a categorical

interpretation of § 924(c)(3)(

B) than simply to march through them, one by one. 1 In applying the categorical approach in both Johnson and Dimaya , the Supreme Court "first" and most prominently noted that the government hadn't advocated a conduct-based

interpretation. See Johnson , 135 S.Ct. at 2562 ; Dimaya , 138 S.Ct. at 1217 (plurality opinion); id. at 1232 (Gorsuch, J., concurring in part and concurring in the judgment). Frankly, this seems like an odd place to start in interpreting a statute-it's not particularly, well, interpretive -but be that as it may, the Supreme Court has "beg[u]n" with it, see id . at 1217 (plurality opinion), so we will too. Suffice it to say that things are very different here.

In the wake of Johnson and Dimaya -and the ensuing drumbeat suggesting that application of the categorical approach likewise imperils § 924(c)(3)'s residual clause-the government has expressly (and at length) urged us to abandon the categorical approach to § 924(c)(3)(

B) in favor of a conduct-based

interpretation. See Appellee's En Banc Br. at 12-43. We have here, therefore, what the Supreme Court lacked in both Johnson and Dimaya , and what the panel lacked in McGuire -namely, the benefit of the full "adversarial testing" that is so "crucial to sound judicial decisionmaking," Dimaya , 138 S.Ct. at 1232 (Gorsuch, J., concurring in part and concurring in the judgment). 2 A second basis that the Supreme Court has highlighted in applying the categorical approach-derived from the text of the ACCA's operative provision, and specifically its reference to "convictions"-is likewise inapplicable here.

As already noted, the Court in Johnson (relying on and quoting its earlier decision in Taylor ) emphasized that the ACCA's operative clause "refers to a person who ... has three previous convictions for-not a person who has committed-three previous violent felonies or drug offenses." 135 S.Ct. at 2562 (internal quotation marks and citation omitted).

The statute's focus on "convictions," the Court said, demonstrates that "Congress intended the sentencing court to look only to the fact that the defendant had been convicted of crimes falling within certain categories, and not to the facts underlying the prior convictions." Id . (internal quotation marks omitted); see also Barrett , 903 F.3d at 179, 2018 WL 4288566, at *10 (emphasizing that, "[i]n rejecting a conduct-specific approach, the [ Taylor ] Court cited the statutory text, which specifically referred to 'convictions' rather than conduct").

Section 924(c)'s operative provision nowhere refers to "convictions." See 18 U.S.C. § 924(c)(1)(A). Quite the opposite, in fact-it refers to conduct : It prescribes an increased term of imprisonment for "any person who, during and in relation to any crime of violence ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm." Id. That's not dispositive, of course- § 924(c)'s operative provision also applies to the statute's elements clause, which all seem to agree incorporates the categorical approach. But it does demonstrate that § 924(

c) lacks one of the key textual hooks that has traditionally buttressed the Supreme Court's application of the categorical approach to statutory residual clauses. 3 Now, in fairness, there is some textual evidence that, on balance, might be thought to favor interpreting § 924(c)(3)(

B) to incorporate the categorical approach. But it does not, we conclude, truly compel a categorical

interpretation, especially when weighed against other textual and practical considerations. In McGuire , we applied the categorical approach to § 924(c)(3)'s residual clause because, we said, "of the statute's terms." 706 F.3d at 1336. In particular, we noted that the residual clause's text "asks whether [the defendant] committed 'an offense' ... that 'by its nature , involves a substantial risk that physical force against the person or property of another may be used.' " Id. at 1336-37 (quoting 18 U.S.C. § 924(c)(3)(B) ).

We now re-examine whether that language-and in particular, the statute's use of the term "offense" and the phrase "by its nature"-mandates the categorical approach. We conclude that it does not. a In support of its determination that § 16's residual clause requires the categorical approach, the Dimaya plurality relied on the Court's earlier observation in Leocal that § 16(b)"directs our focus to the 'offense' of conviction ... rather than to the particular facts." Dimaya , 138 S.Ct. at 1217 (quoting Leocal , 543 U.S. at 7, 125 S.Ct. 377 ).

"Simple references to a 'conviction,' 'felony,' or 'offense,' " the plurality observed, "are 'read naturally' to denote the 'crime as generally committed.' " Id. (quoting Nijhawan , 557 U.S. at 34, 129 S.Ct. 2294 ). Ovalles's position finds some support in § 924(c)(3)'s definition of "crime of violence," which incorporates two of the three terms-"offense" and "felony"-that the Dimaya plurality highlighted: "[T]he term 'crime of violence' means an offense that is a felony ...." 18 U.S.C. § 924(c)(3). There are important counterweights, though. First, as already explained, § 924(

c) nowhere uses the word "conviction," the term that the Supreme Court has historically (going all the way back to Taylor ) emphasized as a key textual driver of the categorical approach. Second, even as to "offense" and "felony," all the plurality said in Dimaya -echoing the Court's earlier decision in Nijhawan -was that those terms are "naturally" read to refer to generic crimes, not that they are necessarily so read.

And indeed, on the very same page from which the Dimaya plurality took its "read naturally" quote, Nijhawan explains "the linguistic fact" that "in ordinary speech words such as 'crime,' 'felony,' 'offense,' and the like" can go either way -"sometimes [they] refer to a generic crime ... and sometimes [they] refer to the specific acts in which an offender engaged on a specific occasion." 557 U.S. at 33-34, 129 S.Ct. 2294 ; see also id . at 32, 129 S.Ct. 2294 (holding that statutory provision using the term "offense" called for application of a conduct-based, rather than categorical, approach); United States v.

Hayes , 555 U.S. 415, 426, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009) (same); Barrett , 903 F.3d at 182, 2018 WL 4288566, at *13 (emphasizing Nijhawan 's conclusion that "words such as 'crime,' 'felony,' and 'offense' can be used in both respects").

All things considered, therefore, § 924(c)(3)'s use of the terms "offense" and "felony"-particularly when combined with the absence of the word "conviction"-would be a pretty thin reed on which to base a conclusion that the residual clause requires the categorical approach. b The strongest piece of evidence in favor of applying the categorical approach to § 924(c)(3)'s residual clause, it seems to us, is the provision's use of the phrase "by its nature": "[T]he term 'crime of violence' means an 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." 18 U.S.C. § 924(c)(3)(B) (emphasis added).

In Leocal , the Court relied in part on § 16(b)'s use of the same "by its nature" phrase to conclude that the statute "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, 125 S.Ct. 377. The plurality in Dimaya likewise pointed to the "by its nature" language-at least as a secondary consideration, saying that it made the case for applying the categorical approach to § 16's residual clause "all the clearer." 138 S.Ct. at 1217.

Quoting Webster's Third New International Dictionary for the proposition that "[a]n offense's 'nature' means its 'normal and characteristic quality,' " the Dimaya plurality reasoned that " § 16(

b) tells courts to figure out what an offense normally-or, as we have repeatedly said, 'ordinarily'-entails, not what happened to occur on one occasion." Id. at 1217-18 (internal citation omitted). That is undoubtedly a reasonable

interpretation of § 16(b)'s language-which, again, § 924(c)(3)'s residual clause mirrors. But importantly here-where the constitutional-doubt canon is in play-it is not a necessary

interpretation. There are other reasonable understandings-especially of § 924(c)(3)(B), with respect to which other interpretive considerations point in the other direction. Webster's Third , for instance-the same dictionary that the Dimaya plurality cited in support of its categorical-approach

interpretation of the "by its nature" language, alternatively defines the word "nature" to mean "the essential character or constitution of something." Webster's Third New International Dictionary 1507 (2002). The Oxford Dictionary of English similarly defines "nature" as "the basic or inherent features, character, or qualities of something." Oxford Dictionary of English 1183 (3d ed. 2010).

It seems to us at the very least plausible that the "something[s]" to which the term "nature" alludes could be particular acts rather than (or in addition to) the "judge-imagined abstraction[s]," Johnson , 135 S.Ct. at 2558, that underlie the categorical approach. See Barrett , 903 F.3d at 182, 2018 WL 4288566, at *13 ("[N]othing in these

definitions indicates whether the offense whose inherent characteristics are to be considered is the generic crime or the particular one charged."). So, as Justice Thomas noted in Dimaya , "[o]n the one hand, the statute might refer to the metaphysical 'nature' of the offense and ask whether it ordinarily involves a substantial risk of physical force." Dimaya , 138 S.Ct. at 1254 (Thomas, J., dissenting).

So too, though, "[o]n the other hand, the statute might refer to the underlying facts of the offense that the offender committed; the words 'by its nature,' 'substantial risk,' and 'may' would mean only that an offender who engages in risky conduct cannot benefit from the fortuitous fact that physical force was not actually used during his offense." Id ."The text can bear either

interpretation," and "[i]t is entirely natural to use words like 'nature' ... to refer to an offender's actual underlying conduct." Id . To be clear, it's no answer to say, "Sure, but Justice Thomas lost in Dimaya ." As an initial matter, he was objecting there to a plurality's (not a majority'

s) interpretation-and in particular its

interpretation of a different statute, § 16(b), that lacks many of the textual, contextual, and practical features that we conclude permit a conduct-based

interpretation of § 924(c)(3)'s residual clause. Moreover, and in any event, Justice Thomas's linguistic observation about the alternative meanings of the word "nature" remains-and indeed, finds support in dueling dictionary

definitions. Especially in light of the inapplicability of other reasons for applying the categorical approach to § 924(c)(3)(B), we simply aren't convinced that the phrase "by its nature" requires application of the categorical approach here. 4 In addition to focusing on what the controlling statutes say in assessing the categorical-approach issue, the Supreme Court has emphasized what they don't say . In Dimaya , for instance, the plurality reasoned that "the absence" from § 16"of terms alluding to a crime's circumstances, or its commission, makes a [conduct]-based

interpretation an uncomfortable fit." 138 S.Ct. at 1218. But again, § 924(

c) is different. Not only (as already explained) does the statute's operative provision refer exclusively to conduct, but its definitional provision (i.e. , the residual clause itself) also contains conduct-based language-namely, its requirement that the risk of force arise "in the course of committing the offense." 18 U.S.C. § 924(c)(3)(B). 5 Textual indicia aside, the Supreme Court has also emphasized practical considerations in deciding between categorical and conduct-based

interpretations. As already explained, in initially devising the categorical approach in Taylor -and thereafter applying it in Johnson and Dimaya -the Supreme Court underscored the "utter impracticability" of applying a conduct-based approach retrospectively to determining the violence of prior crimes. E.g. , Johnson , 135 S.Ct. at 2562. In particular, the Court in Taylor fretted about the prospect that mounds of evidence would need to be introduced at sentencing in order to reconstruct the circumstances underlying long-since-passed convictions-potentially turning sentencing proceedings into de facto mini-trials.

See 495 U.S. at 601-02, 110 S.Ct. 2143. That "look-back" concern (our term, not the Supreme Court'

s) has continued to animate the Court's application of a categorical approach in the ACCA and § 16 contexts. As the plurality summarized in Dimaya : "This Court has often described the daunting difficulties of accurately 'reconstruct[ing],' often many years later, 'the conduct underlying [a] conviction.' " 138 S.Ct. at 1218 (quoting Johnson , 135 S.Ct. at 2562, and citing Taylor , 495 U.S. at 601-02, 110 S.Ct. 2143 ); see also Barrett , 903 F.3d at 181, 2018 WL 4288566, at *12 ("[T]he mandate for a categorical approach to residual

definitions of violent crimes has developed in a singular context: judicial identifications of what crimes (most often, state crimes) of prior conviction fit federal

definitions of violent crimes so as to expose a defendant to enhanced penalties or other adverse consequences in subsequent federal proceedings."). Importantly, the look-back problem doesn't arise with respect to § 924(c), which serves an altogether different function from the statutes at issue in Johnson and Dimaya and operates differently in order to achieve that function. The ACCA identifies "previous convictions" for the purpose of applying a recidivism-based sentencing enhancement to three-time felons who later possess firearms in violation of 18 U.S.C. § 922(g). See 18 U.S.C. § 924(e)(1) (emphasis added).

Similarly, § 16(b) -as incorporated by the INA-classifies certain prior convictions as "crime[s] of violence" for the purpose of rendering aliens removable. See 18 U.S.C. § 16 ; 8 U.S.C. § 1101(a)(43)(F) ; 8 U.S.C. § 1227(a)(2)(A)(iii).

Section 924(c), by contrast, operates entirely in the present-it creates a new and distinct offense for any person who "during and in relation to any crime of violence ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm." 18 U.S.C. § 924(c)(1)(A). So, unlike in the ACCA and § 16 contexts-where courts have to look backwards in time to consider past crimes remote from (and wholly unconnected to) the charged offense, § 924(c)(3)'s definition of a "crime of violence" is never applied to an unrelated prior crime or conviction. Instead, in § 924(

c) cases, the firearms offense and the predicate "crime of violence" go hand-in-hand; they inherently arise out of the same event. By dint of the statute's plain language, the gun-related conduct must occur "during," "in relation to," or "in furtherance of" the crime of violence, and with respect to that underlying offense the actionable risk of force must occur specifically "in the course of committing" it. In short, it's all one big ball of wax-the crimes are typically (as here) charged in the same indictment, and if they are tried, they are considered by the same jury.

The "utter impracticability" that Taylor , Johnson , and Dimaya identified-what we have called the look-back problem-simply isn't an issue. See Barrett , 903 F.3d at 182, 2018 WL 4288566, at *12 ("

Section 924(c)(3)... is not concerned with prior convictions. It pertains only to § 924(c)(1) crimes of pending prosecution."). 6 Relatedly, echoing the earlier decision in Taylor , the Dimaya plurality acknowledged that the Court "adopted the categorical approach in part to avoid the Sixth Amendment concerns that would arise from sentencing courts' making findings of fact that properly belong to juries." 138 S.Ct. at 1217 (internal quotation marks and citation omitted).

Its point was that in reconstructing the circumstances underlying a prior crime in order to assess its risk of violence, a reviewing court could well run afoul of the rule that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt," Apprendi , 530 U.S. at 490, 120 S.Ct. 2348.

See Taylor , 495 U.S. at 601, 110 S.Ct. 2143 (expressing concern that judicial factfinding during a sentencing hearing about the real-world facts of crimes that led to prior convictions could "abridg[e a defendant's] right to a jury trial"). Yet again, that isn't a concern here. For starters, because the jury in a § 924(

c) case-unlike in, say, an ACCA case-is considering contemporaneous gun-related and predicate offenses, its role already necessarily entails consideration of the entire course of conduct charged as the underlying "crime of violence." Moreover, and significantly, the government here has conceded that whether the defendant's predicate offense constitutes a "crime of violence" within the meaning of § 924(c)(3)'s residual clause should be treated as a mixed question of fact and law to be resolved by a jury. See Appellee's En Banc Br. at 33-34 (citing United States v.

Gaudin , 515 U.S. 506, 509-10, 522-23, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) ). In particular, the government admits that under a conduct-based approach, a § 924(c)(3)(

B) conviction requires a jury separately to find (or the defendant to admit through a plea) not only (1) that the defendant committed the underlying federal offense, (2) that the defendant used, carried, or possessed a firearm, and (3) that any use, carriage, or possession of the firearm occurred during and in relation to (or in furtherance of) the federal offense, but also-and importantly-(4) that the federal offense was in fact a "crime of violence." As has the Supreme Court in similar circumstances, we conclude that the government's concession that, absent a plea, it must prove and a jury must find all four elements-including that the underlying offense qualifies as a "crime of violence"-"eliminat[es] any constitutional concern." Nijhawan , 557 U.S. at 40, 129 S.Ct. 2294 ; see also Barrett , 903 F.3d at 182, 2018 WL 4288566, at *12 ("The Sixth Amendment concern is avoided because the trial jury, in deciding whether a defendant is guilty of using a firearm 'during and in relation to any crime of violence,' 18 U.S.C. § 924(c)(1)(A), can decide whether the charged predicate offense is a crime of violence as defined in § 924(c)(3)(B), i.e. , whether the felony offense '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,' 18 U.S.C. § 924(c)(3)(B)."). * * * So where does all of this leave us?

With something of a mixed bag, frankly. While some of the factors to which the Supreme Court has pointed in adopting and applying the categorical approach might be thought (on balance) to favor a similar

interpretation of § 924(c)(3)(B), others cut pretty decisively in the opposite direction, toward a conduct-based approach. And in constitutional-doubt land, the tie (or the toss-up, or even the shoulder-shrug) goes to the statute-saving option-which, here, is the conduct-based

interpretation. So to be clear, we needn't-and don't-conclude that textual, contextual, and practical considerations compel a conduct-based reading of § 924(c)(3)'s residual clause. Nor, for that matter, do we even need to find that § 924(c)(3)(

B) is best read to incorporate a conduct-based approach. Reasonable minds-say, for instance, the minds of the (putatively) reasonable judges who join this opinion-can and will disagree about that. It is enough for us to conclude-as we think is indisputable-that § 924(c)(3)(

B) is at least "plausibl[y]" (or "fairly possibl[y]") understood to embody the conduct-based approach. See Clark , 543 U.S. at 381, 125 S.Ct. 716 ; St. Cyr , 533 U.S. at 300, 121 S.Ct. 2271. Accordingly, it is our "plain duty" to adopt the conduct-based approach as the proper

interpretation of § 924(c)(3)'s residual clause. See Delaware & Hudson Co. , 213 U.S. at 407, 29 S.Ct. 527. We therefore overrule McGuire to the extent that it requires application of the categorical approach to determine whether an offense constitutes a "crime of violence" within the meaning of § 924(c)(3)(

B) and hold that the crime-of-violence determination should be made, instead, using a conduct-based approach. IV Having jettisoned the categorical

interpretation in favor of the conduct-based approach for cases arising under § 924(c)(3)'s residual clause, we can make quick work of the contention that the clause is unconstitutionally vague in the light of Dimaya . It is not. The Supreme Court has repeatedly explained-and again all here agree-that the vagueness problem that plagued the ACCA and § 16, and that is asserted here, is a function of the "speculative," "idealized," "abstract" inquiries required by the categorical approach. Johnson , 135 S.Ct. at 2557-58, 2561. Accordingly, if § 924(c)(3)(

B) is interpreted to embody a conduct-based approach-as we have held it should be-there is no reason whatsoever to " 'doubt [its] constitutionality.' " Dimaya , 138 S.Ct. at 1214 (quoting Johnson , 135 S.Ct. at 2561 ); see also Barrett , 903 F.3d at 178, 2018 WL 4288566, at *10 (emphasizing that under Johnson and Dimaya , "no constitutional vagueness inheres in a substantial-risk definition of a crime of violence when applied to case-specific conduct"). V That leaves us only to apply § 924(c)(3)(B)'s conduct-based approach to Ovalles's case.

Given the stipulated facts before us-embodied in a written plea agreement and a detailed colloquy-doing so is remarkably straightforward. It is common ground here that in order to convict Ovalles on the § 924(

c) charge, the government would need to prove (or Ovalles would need to plead to) four distinct elements: (1) that Ovalles actually committed the underlying federal offense-here, the attempted carjacking; (2) that the attempted-carjacking offense constitutes a "crime of violence" within the meaning of § 924(c)(3) ; (3) that Ovalles knowingly used, carried, or possessed a firearm; and (4) that any use or carriage of the firearm occurred during and in relation to, or that any possession of the firearm was in furtherance of, the attempted carjacking. See 18 U.S.C. § 924(c)(1)(A).

The only element in dispute here is the second: Did Ovalles's attempted-carjacking offense, as she has admitted it actually occurred , constitute a "crime of violence"-i.e. , did her own acknowledged conduct "involve[ ] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense"? Easy. Of course it did.

As it pertained to the attempted-carjacking count, the information charged Ovalles with "attempt[ing] to take a motor vehicle ... from the person and presence of another, by force, violence and intimidation" with "the intent to cause death and serious bodily harm." Ovalles then executed a written plea agreement acknowledging that she understood each charge in the information-including the attempted-carjacking charge-and that "she [was] pleading guilty because she is in fact guilty of the crimes [as] charged." If attempting to steal a car "by force, violence and intimidation" and with "the intent to cause death and serious bodily harm" (as Ovalles has admitted she did) doesn't involve a "substantial risk" that physical force may be used, then it's hard to imagine what does.

Here, though, there's no need for imagination-the real-life details of Ovalles's crime, all of which she has admitted, confirm it. We won't restate in full the government's factual proffer recounting Ovalles's involvement in the three-day carjacking spree. Suffice it to say that, in general, the proffer demonstrated that Ovalles and her co-conspirators robbed a grocery store, successfully carjacked three automobiles by force, and attempted to carjack a fourth. With respect to the attempted carjacking, in particular-which, again, serves as the predicate offense for Ovalles's § 924(

c) conviction-the proffer detailed that Ovalles and her co-conspirators approached a family getting out of their minivan, demanded the keys, hit the family's 13-year-old child in the face with a baseball bat, and then, in making their escape, fired an AK-47 assault rifle at the family and a Good Samaritan who had come to their aid. See supra at 1235.

Especially when layered on top of Ovalles's admission to the overtly violent charge in the information, the government's detailed factual proffer-with which Ovalles repeatedly said she had no "material disagreement"-leads inexorably to the conclusion that the attempted carjacking at issue here constitutes a "crime of violence" within the meaning of § 924(c)(3)(B). Based on the facts to which she has expressly stipulated, there simply can be no serious dispute that Ovalles recognized that her conduct posed a very real "risk" that physical force "may" be used-just, as it turns out, it was.

VI Accordingly, we hold as follows: 1. The question whether a predicate offense constitutes a "crime of violence" within the meaning of 18 U.S.C. § 924(c)(3)(

B) should be determined using a conduct-based approach that accounts for the actual, real-world facts of the crime's commission, rather than a categorical approach. 2. To the extent that our decision in United States v. McGuire , 706 F.3d 1333 (11th Cir. 2013), required use of the categorical approach in making the crime-of-violence determination under § 924(c)(3)(B), it is overruled. 3. As interpreted to embody a conduct-based approach, § 924(c)(3)(

B) is not unconstitutionally vague. 4. In light of the particular circumstances of its commission, all of which Ovalles has expressly admitted, her attempted-carjacking offense was a "crime of violence" within the meaning of § 924(c)(3)(B). The case is REMANDED to the panel for proceedings consistent with this opinion. How did we ever reach the point where this Court, sitting en banc, 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.

And Congress needs to act to end this ongoing judicial charade. I join the majority opinion in full, but I write separately to explain why our resolution of this appeal forecasts how Congress should address the vexing issue of how to punish violent recidivists under laws like the Armed Career Criminal Act : by restoring the traditional role of the jury. The caselaw about how to punish recidivists has confounded the federal courts for decades and has made the resolution of this appeal tricky, but our decision also suggests a way out of the mess.

Although our decision involves a contemporaneous crime and not a prior conviction, our conclusion that a jury may make findings about a defendant's violent conduct applies with equal force to recidivist statutes. Indeed, the modern abandonment of the jury's traditional role of making findings about prior convictions has created more problems than it has solved. A. Recidivist Wars Empirical research proves that Congress has good reason to punish recidivists with long sentences of imprisonment.

A recent study by the United States Sentencing Commission found that "[c]areer offenders, as a group, tend to recidivate at a higher rate than non-career offenders." More specifically, "almost two-thirds ... of career offenders released between 2004 and 2006 were rearrested" in the eight-year period after their release, while just under "one-half ... of non-career offenders released in 2005 were rearrested" in the same period. And a defendant's criminal history as calculated under the Sentencing Guidelines is a strong predictor of future encounters with the justice system.

Offenders without any criminal history points are rearrested at a rate of 30.2 percent. This rate jumps to 63.3 percent for offenders with five criminal history points and catapults to 81.5 percent for offenders with more than 10 criminal history points. Relatedly, offenders with the lowest criminal history category are rearrested at a rate of 33.8 percent, while offenders with the highest criminal history category are rearrested at a rate of 80.1 percent. Among career offenders, violent offenders, not surprisingly, pose the greatest risk to the public.

For example, "drug trafficking only" career offenders recidivate at a rate of 54.4 percent, while "violent [crime] only" career offenders recidivate at a rate of 69 percent. The median drug trafficker recidivates after 26 months, while the median violent offender recidivates after only 14 months. The median drug trafficker commits two "[r]ecidivism [e]vents," while the median violent offender commits three. And when a drug trafficker reoffends, he is most likely to commit another drug trafficking offense, while a violent offender is most likely to commit robbery.

Indeed, even "mixed" career offenders who have at least one violent offense recidivate at a rate of 69.4 percent and are most likely to commit assault when they recidivate. Past offenses involving a firearm are also a strong predictor of future crimes. For example, "[o]ffenders whose federal offense involved firearms [are] most likely to be rearrested" at a rate of 68.3 percent, and "[o]ffenders who received an enhanced sentence for a weapon ... ha[ve] higher recidivism rates than other offenders." In short, criminals with an affinity for guns and violence are the least likely to change their ways.

That recidivists merit longer sentences is hardly a new discovery. Over a century ago, the Supreme Court explained that "[t]he propriety of inflicting severer punishment upon old offenders has long been recognized in this country and in England." Accordingly, "[s]tatutes providing for such increased punishment were enacted in Virginia and New York as early as 1796, and in Massachusetts in 1804; and there have been numerous acts of similar import in many states." In more recent years, Congress has moved to protect public safety by enacting federal crimes that provide lengthy terms of imprisonment for recidivists.

The Armed Career Criminal Act, for example, provides a 15-year mandatory minimum sentence for a criminal convicted of unlawfully possessing a firearm or ammunition who has "three previous convictions ... for a violent felony or serious drug offense." The Act defines a "serious drug offense" in terms of convictions under certain federal and state laws that provide a maximum sentence of 10 or more years of imprisonment.

And it defines a "violent felony" to include crimes that (1) have "the use, attempted use, or threatened use of physical force" as an "element" -the so-called "elements clause"; (2) are "burglary, arson, or extortion, [or] involve[ ] use of explosives" -the "enumerated offenses clause"; or (3) "otherwise ... present[ ] a serious potential risk of physical injury to another" -the "residual clause." B. The Residual Clause Strikes Back As thoroughly chronicled in the majority opinion, years of litigation about federal recidivist statutes have weakened the penalties created by Congress.

But these developments have not benefited all offenders. Recidivist drug traffickers who possess a firearm are still subject to the 15-year mandatory minimum under the Armed Career Criminal Act. But after the demise of the residual clause in Johnson v.

United States , violent recidivists who possess a firearm-the ones akin to the violent career offenders who recidivate at a rate nearly 15 percentage points higher than recidivist drug traffickers and who tend to commit violent crimes when they do so-sometimes escape the mandatory minimum if their earlier offenses lacked a legal "element" that involves physical force, regardless of how the offender actually committed the offense. For example, an offender may have been convicted of "sexual abuse in the first degree ... by forcible compulsion" under Alabama law for a crime that was actually violent.

But because the Supreme Court of Alabama has adopted a "water[ed] ... down"

interpretation of the statute that "means that [the statute] does not categorically include as an element the use, attempted use, or threatened use of physical force," the conviction will not count as a crime of violence because "the true facts matter little, if at all, in this odd area of the law." The same problem may exist for other offenses that can technically be committed in nonviolent ways-but rarely, if ever, are-such as kidnapping, arson, and other sex crimes. Criminals who have committed violent crimes may escape the mandatory minimum sentence of the Armed Career Criminal Act because sentencing judges must "close [their] eyes" to everything but the legal

definitions of prior convictions.

In essence, the so-called categorical approach "divorces what a habitual offender actually did from the punishment they are meant to receive." "The bizarre results" occasioned by this approach "are hard to grasp" because "the doctrine is not based in reality, but rather relies on the legal fiction that crimes are [merely] comprised of a set of elements, as opposed to the underlying criminal conduct." I do not mean to suggest that the residual clauses of the Armed Career Criminal Act or of the federal definition of a crime of violence in recidivist statutes should have survived-at least not in their original forms that required the sentencing judge to decide whether the offender's criminal history qualified him for an increased punishment.

Judges have rightfully complained that the categorical approach has taxed judicial economy. "The dockets of ... all federal courts are now clogged with [ACCA] cases," and perhaps "no other area of law has demanded more of [the courts'] resources." And as the Supreme Court explained in Johnson , the two-step process demanded by the categorical approach, in which the sentencing judge imagined the "ordinary case" of a crime and then decided "whether that abstraction present[ed] a serious potential risk of physical injury," was vague and confusing.

The residual clause produced several circuit splits over whether certain crimes were sufficiently violent. Indeed, the justices could not agree whether fleeing in a vehicle from law enforcement or drunk driving qualified as violent crimes, eventually leading the Supreme Court to conclude that "trying to derive meaning from the residual clause ... [was] a failed enterprise." And even the elements clause has created confusion, with members of this Court disagreeing about whether crimes like attempted murder, attempted armed robbery, robbery, aggravated assault, and felony battery are violent crimes.

The problems with the categorical approach also cannot necessarily be remedied by having the sentencing judge make findings about the underlying facts of prior convictions.

The Sixth Amendment requires that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury." And the specific details of a recidivist's past crimes go beyond the simple "fact of [his] prior conviction." Indeed, some members of the Supreme Court have opined that, under the Sixth Amendment, even the bare fact of a prior conviction should be proved to a jury. C.

Return of the Jury The combination of the need to punish violent recidivists and the problem of judicial factfinding about prior convictions yields an obvious solution for Congress: rewrite the Armed Career Criminal Act and other recidivist statutes to require that the government must prove to a jury beyond a reasonable doubt that the defendant has previously been convicted of a felony the actual commission of which involved the use, attempted use, or threatened use of physical force against another person.

For example, in the case of a defendant with a prior conviction under Alabama law for first-degree sexual abuse by forcible compulsion, the prosecution could introduce evidence that the defendant in fact used violent force to subdue his victim. This evidence might include certified charging documents, stipulations, plea agreements, factual proffers, and verdict forms from the past prosecution, as well as traditional evidence such as witness testimony and physical evidence. Tasking the jury with determining recidivism is consistent with the common law.

"Habitual offender laws like the ACCA enjoy a long tradition in this country that dates back to colonial times." And"[a]t common law, the fact of prior convictions had to be charged in the same indictment charging the underlying crime ... and submitted to the jury for determination along with that crime." In 1967, the Supreme Court acknowledged that "[t]he common-law procedure for applying recidivist statutes ..., which requires allegations and proof of past convictions in the current trial, is, of course, the simplest and best known procedure." And earlier decisions of state courts left little doubt that "a verdict of the jury finding the prior conviction ... [was] essential to the power of the court to impose the increased punishment" absent a statute that displaced the common law.

"[T]he right to have a jury decide prior-offense status ... was the law in virtually every federal and state jurisdiction, from the Founding past World War II." For example, a former Texas recidivism statute provided enhanced penalties when the prosecutor proved to the jury that the offender "ha[d] been before convicted of the same [felony] offense ... or one of the same nature." And a jury finding was more than a formality.

Under a former Indiana statute, "the previous convictions, sentences, and imprisonments [had to] be described specifically, and the jury [had to] find that the defendant was convicted, sentenced, and imprisoned in the instances described, and not otherwise." Indeed, in Kelley v. State , the Supreme Court of Indiana held that the prosecution could not rely on "a certified transcript of a judgment ... [that did] not describe the crime for which [the defendant] was convicted, but merely recite[d]" that the defendant was sentenced to between one and seven years of imprisonment.

The common-law method for proving prior convictions ordinarily permitted the prosecutor to rely on a broad array of evidence if the defendant refused "to stipulate as to the prior conviction[ ] and thereby relieve the State of the necessity of ... adducing proof before the jury of such prior convictions." For example, in Crocker v.

State , after a defendant accused of "robbery with a prior conviction for robbery" contested the fact of his first conviction, the prosecutor introduced "records from the penitentiary," "testimony of one of the officers involved in the prior case," and a "comparison of finger prints of the [defendant] with the finger prints taken in connection with the prior offense." And in Dozier v. State , the jury was

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