United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR
RICHARD G. STEARNS UNITED STATES DISTRICT JUDGE
Antonio Correia, Sr. seeks collateral review pursuant to 28
U.S.C. § 2255 of his sentence for possessing a firearm
in furtherance of a crime of violence (a conspiracy to commit
Hobbs Act robbery), in violation of 18 U.S.C. §
924(c)(1)(A). In attempting to define a crime of violence,
the language of § 924(c) contains a “residual
clause” which is worded similarly to that of the Armed
Career Criminal Act (ACCA), struck down by the Supreme Court
in Johnson v. United States, 135 S.Ct. 2551 (2015)
(the decision was subsequently made retroactive on collateral
review in Welch v. United States, 136 S.Ct. 1257
(2016)). Correia argues that his sentence based on the
residual clause of § 924(c) is unconstitutional in light
of Johnson. The residual clause at issue in
Johnson defined a “violent felony” as
any crime that “is burglary, arson, or extortion,
involves use of explosives, or otherwise involves conduct
that presents a serious potential risk of injury to
another.” 18 U.S.C. § 924(e)(2)(B). Section
924(c)'s residual clause omits the list of illustrative
crimes and simply defines a “crime of violence”
as one “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).
the facial similarity, every Circuit to have directly
addressed the question has concluded that Johnson
does not invalidate the § 924(c) residual clause.
See United States v. Prickett, 839 F.3d 697 (8th
Cir. 2016) (per curiam); United States v. Hill, 832
F.3d 135 (2d Cir. 2016); United States v. Taylor,
814 F.3d 340 (6th Cir. 2016). This determination is based on
a close examination of the reasoning underlying
Johnson, where the Court concluded that “[t]wo
features of the [ACCA] residual clause conspire to make it
unconstitutionally vague.” 135 S.Ct. at 2557. In the
first instance, the ACCA's “residual clause leaves
grave uncertainty about how to estimate the risk posed by a
crime” by requiring judges to determine risk based on
“a judicially imagined ‘ordinary case' of a
crime [and] not [on] real-world facts or statutory
elements.” Id. Secondly, the ACCA residual
clause “leaves uncertainty about how much risk it takes
for a crime to qualify as a violent felony. It is one thing
to apply an imprecise ‘serious potential risk'
standard to real-world facts; it is quite another to apply it
to a judge-imagined abstraction.” Id. at 2558.
This potential for ambiguity was heightened in the ACCA
context by the fact that the phrase “serious potential
risk” had to be interpreted in light its list of
exemplary crimes, all of which involve a less than clear-cut
degree of risk. Id. The Court concluded that while
“[e]ach of the uncertainties in the residual clause may
be tolerable in isolation . . . ‘their sum makes a task
for us which at best could only be guesswork.”
Id. at 2560 (quoting United States v.
Evans, 333 U.S. 483, 495 (1948)).
the Court's focus on the combined effects of the
ACCA's flaws that distinguishes the § 924(c)
residual clause. Assuming that the categorical approach
applies to § 924(c) determinations,  that approach
necessarily involves “assessing the risk of physical
force posed by the ‘ordinary' instance of a
predicate crime, ” raising the vagueness concerns
presented by the first part of Johnson's
analysis. Hill, 832 F.3d at 146; accord
Taylor, 814 F.3d at 378. The second facet of vagueness
that drove the Court's decision in Johnson,
however, is not present in § 924(c). Unlike the ACCA,
§ 924(c) does not contain the list of disparate exemplar
offenses that was “the prime cause of uncertainty in
[the ACCA], and the key obstacle to consistent judicial
construction.” Hill, 832 F.3d at 146.
Johnson emphasized that statutes which do not
“link a phrase such as ‘substantial' risk
to a confusing list of examples” present far less
serious vagueness concerns. 135 S.Ct. at 2561.
result of this straightforward construction, courts have had
little difficulty (in sharp contrast to the ACCA) in
interpreting § 924(c)'s residual clause. See
Johnson, 135 S.Ct. at 2558 (noting that vagueness
determination was bolstered by the Court's history of
“repeated attempts and repeated failures to craft a
principled and objective standard out of the [ACCA's]
residual clause”). A construction of § 924(c) is
further helped by the narrower scope of its residual clause.
Unlike the ACCA, which requires consideration of whether a
defendant will use force sufficient to create “a
serious potential risk of physical injury to another, ”
18 U.S.C. § 924(e)(2)(B)(ii), § 924(c)'s
residual clause focuses on the “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). Narrowing the inquiry to
whether physical force is likely to be used, rather than
whether injury may result to a victim, simplifies the
interpretation of § 924(c). See Leocal v.
Ashcroft, 543 U.S. 1, 10 & n.7 (2004) (interpreting
similar language in 18 U.S.C. § 16(b)); Hill,
832 F.3d at 148; Taylor, 814 F.3d at 375-76.
§ 924(c)'s language limiting the inquiry to force
potentially used “in the course of committing the
offense” likewise finds no parallel in the ACCA and
reduces the possibility that § 924(c) will sweep in
physical injuries only remotely caused by the crime.
Taylor, 814 F.3d at 376. Indeed, the First Circuit
has evinced little difficulty in concluding that
Correia's underlying offense - conspiracy to commit Hobbs
Act robbery - is a crime of violence. See United States
v. Turner, 501 F.3d 59, 67-68 (1st Cir. 2007). Unlike
the ACCA, no tortured history of failed interpretive efforts
haunts § 924(c).
Correia points to the fact that several Circuits have
concluded that a near-identically worded residual clause in
18 U.S.C. § 16(b) is unconstitutionally vague. See
Baptiste v. Att'y Gen., 841 F.3d 601 (3d Cir. 2016);
Golicov v. Lynch, 837 F.3d 1065 (10th Cir. 2016);
Shuti v. Lynch, 828 F.3d 440 (6th Cir. 2016);
United States v. Vivas-Ceja, 808 F.3d 719 (7th Cir.
2015); Dimaya v. Lynch, 803 F.3d 1110 (9th Cir.
2015), pet. for cert. granted, 137 S.Ct. 31 (2016).
This determination has not been consistent across the
Circuits, however, see United States v.
Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016) (en
banc), and the mine-run of decisions pay less focused
attention than they should to the textual differences between
the ACCA residual clause and the residual clauses present in
§ 924(c) and § 16(b), see Hill, 832 F.3d
at 149-150. Even if § 16(b) is unconstitutional, it
would not necessarily carry the day for Correia: as at least
one Circuit has concluded, it is possible to distinguish
between § 16(b) and § 924(c) on the basis that
§ 924(c), unlike the ACCA or § 16(b), is a criminal
statute requiring a conviction by a jury rather than a
retrospective determination of crime-of-violence status by a
district court or immigration judge. Shuti, 828 F.3d
at 449-450. Consequently, the court finds that the cases
directly on point upholding the constitutionality of §
924(c) are more persuasive. In sum, the double infirmity
which infected the ACCA's residual clause is not present
in § 924(c).
foregoing reasons, Correia's petition for collateral
relief is DISMISSED with prejudice. The Clerk is
instructed to close the case.
 The First Circuit has never directly
held that determinations under § 924(c)'s residual
clause are made by employing the categorical approach, even
though district courts have routinely assumed that to be the
case. See, e.g., United States v. Rachal, No.
16-10043-NMG, 2016 WL 7165712, at *2 (D. Mass. Dec. 7, 2016);
Chasse v. United States, No. 15-cv-473-PB, 2016 WL
4926154, at *4 & n.7 (D.N.H. Sept. 15, 2016); United
States v. Williams, 179 F.Supp.3d 141, 145-146 (D. Me.
2016). The categorical approach has also been adopted by
several courts of appeals. See, e.g., Hill, 832 F.3d
at 146; Taylor, 814 F.3d at 378; United States
v. Fuertes, 805 F.3d 485, 498 (4th Cir. 2015). There is
good reason to doubt the value of the categorical approach in
applying § 924(c). Unlike the ACCA's residual
clause, which examines past convictions to enhance a
sentence, § 924(c) determinations are bound up with the
circumstances of the defendant's conviction. See
United States v. Herr, No. 16-cr-10038-IT, 2016 WL
6090714, at *2 n.2 (D. Mass. Oct. 18, 2016); United
States v. Tsarnaev, 157 F.Supp.3d 57, 74 (D. Mass.
2016); cf. Shuti v. Lynch, 828 F.3d 440, 449 (6th
Cir. 2016) (noting that “§ 924(c) is a criminal
offense that requires an ultimate determination of guilt
beyond a reasonable doubt - by a jury, in the same
proceeding, ” and that it therefore does not raise the
same vagueness concerns as does the ACCA). That difference
would make § 924(c) clearly constitutional under
Johnson. 135 S.Ct. at 2561 (statutes which call for
“application of a qualitative standard such as
‘substantial risk' to real-world conduct” are
constitutional); see Shuti, 828 F.3d at 450
(concluding that § 924(c) implicates
Johnson's constitutionally acceptable
“real-world conduct” language); cf. United
States v. Prickett, 830 F.3d 760, 761 (8th Cir. 2016)
(per curiam) (stating that § 924(c) requires the
application of the “substantial risk” standard to
the facts of the defendant's case, not an idealized
case), vacated on reh'g, 839 F.3d 697. Because
the parties have not fully briefed the point, and because the
court finds that § 924(c) is not vague even if the
categorical approach applies, there is no need to definitely
answer this question.
 The court, however, also recognizes
that the constitutionality of § 924(c)'s residual
clause has split district courts, see, e.g., Herr,
2016 WL 6090714, and that the constitutionality of analogous
language in 18 U.S.C. § 16(b) has split the courts of
appeals. Because the First Circuit has yet to have the
opportunity to provide guidance, the court grants a
Certificate of Appealability on the ...