United States of America v. Douglas D. Jackson

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-3693
U NITED STATES OF A MERICA ,
Plaintiff-Appellee,
v.
D OUGLAS D. J ACKSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:15-cr-06-1 — Robert L. Miller, Jr., Judge.
____________________
No. 14-2898
U NITED STATES OF A MERICA ,
Plaintiff-Appellee,
v.
A NTWON D. J ENKINS ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:12-cr-30239-1 — David R. Herndon, Judge
____________________

-- 1 of 5 --

2 Nos. 15-3693 & 14-2898
A RGUED NOVEMBER 2, 2018 — D ECIDED J ULY 30, 2019
____________________
Before R IPPLE , KANNE , and R OVNER , Circuit Judges.
KANNE , Circuit Judge. In United States v. Cardena, 842 F.3d
959 (7th Cir. 2016), we held that 18 U.S.C. § 924(c)(3)(B)—
which partially defines “crime of violence” for § 924—is un-
constitutionally vague. On February 24, 2017, we relied on
Cardena to vacate Antwon Jenkins’s conviction under
§ 924(c)(1)(A)(ii). United States v. Jenkins, 849 F.3d 390, 394 (7th
Cir. 2017). We vacated Douglas Jackson’s conviction under the
same statutory provision on August 4, 2017. United States v.
Jackson, 865 F.3d 946, 954 (7th Cir. 2017). Those opinions pro-
vide a summary of the underlying conduct and procedure
that brought the appeals before us.
On May 14, 2018, the Supreme Court vacated and re-
manded both decisions for reconsideration in light of its deci-
sion in Sessions v. Dimaya, 138 S. Ct. 1204 (2018). We consoli-
dated the appeals and heard argument on Dimaya’s relevance.
On January 4, 2019, the Supreme Court granted certiorari in
United States v. Davis, 903 F.3d 483 (5th Cir. 2018) (also holding
that § 924(c)(3)(B) is unconstitutionally vague). We stayed fur-
ther consideration of the appeals and waited for the Supreme
Court’s decision. Now, the Supreme Court has found that
§ 924(c)(3)(B) is unconstitutional. 139 S. Ct. 2319 (2019).
Davis involves the Supreme Court’s latest discussion of
whether statutes that enhance punishment for “crimes of vio-
lence” are unconstitutionally vague. In Johnson v. United
States, the Court invalidated the residual clause of the Armed
Career Criminal Act (“ACCA”), which provided a catch-all

-- 2 of 5 --

Nos. 15-3693 & 14-2898 3
definition for violent felonies in the ACCA context. 135 S. Ct.
2551 (2015). In United States v. Vivas-Ceja, 808 F.3d 719 (2015),
we relied upon Johnson to find a similar provision—the defi-
nition of “crime of violence” for much of the federal criminal
code found at 18 U.S.C. § 16(b)—to be unconstitutional. And,
in Cardena, we invalidated § 924(c)(3)(B) because it is indistin-
guishable from the clause we invalidated in Vivas-Ceja.
Later, the Court decided Dimaya, which involved the defi-
nition of “crime of violence” found in 18 U.S.C. § 16. 138 S. Ct.
at 1204. Once again, a majority of the Court found that the
statutory definition was too vague. But the Court splintered
among several rationales. Four justices—led by Justice Ka-
gan—essentially found that the Johnson rationale controlled.
Id. at 1210–23. In a separate concurrence, Justice Gorsuch
agreed that § 16(b) was unconstitutionally vague but indi-
cated a willingness to reconsider application of the categorical
approach (which requires courts to consider an abstraction of
a crime as opposed to the facts of the defendant’s actual con-
duct) in a future case. Id. at 1223–34. In dissent, Chief Justice
Roberts argued that § 16(b) doesn’t create the same constitu-
tional issues that troubled the Court in Johnson. Id. at 1234–41.
And Justice Thomas dissented separately to argue that the
Due Process clause does not prohibit vague laws and to argue
that, regardless, § 16(b) could be interpreted in a constitu-
tional way (by jettisoning the categorical approach). Id. at
1242–59.
Thus, after Dimaya, future residual-clause challenges faced
an uncertain future. Some members of the Court were signal-
ing increased discomfort with the use of the categorical ap-
proach. And the courts of appeals took notice. The First, Sec-
ond, and Eleventh Circuits all held that § 924(c)(3)(B) could be

-- 3 of 5 --

4 Nos. 15-3693 & 14-2898
interpreted constitutionally by rejecting application of the cat-
egorical approach. United States v. Douglas, 907 F.3d 1 (1st Cir.
2018); Ovalles v. United States, 905 F.3d 1231 (11th Cir. 2018);
United States v. Barrett, 903 F.3d 166 (2d Cir. 2018). But the cir-
cuits with pre-Dimaya precedent finding § 924(c)(3)(B) uncon-
stitutionally vague did not reverse themselves in anticipation
of the Court’s next opinion. United States v. Davis, 903 F.3d 483
(5th Cir. 2018); United States v. Salas, 889 F.3d 681, 685 (10th
Cir. 2018).
In Davis, the Court ended the waiting. Writing that “a
vague law is no law at all,” Justice Gorsuch found that
§ 924(c)(3)(B)’s language required use of the categorical ap-
proach and thus that it was unconstitutionally vague. Davis,
139 S. Ct. at 2323. Although a case-specific approach would
alleviate the vagueness, the Court concluded that “the statute
simply cannot support” the use of that approach. Id. at 2327.
Accordingly, § 924(c)(3)(B) is unconstitutionally vague. Id. at
2336–55.
Davis vindicates our opinion in Cardena, and so the ques-
tion the Court remanded for us to consider in these appeals
has now been answered by the Court itself. Nothing remains
to decide with respect to Jenkins and Jackson. We will vacate
and remand for full resentencing. See United States v. Cureton,
739 F.3d 1032, 1045 (7th Cir. 2014) (explaining that a district
court’s sentencing determination is necessarily holistic, and
so when part of a sentence is vacated, the court is entitled to
resentence on all counts).
In accordance with our February 24, 2017, opinion, we
VACATE Jenkins’s conviction for using or carrying a firearm
to commit a federal crime of violence and REMAND for re-
sentencing. 849 F.3d at 395. Likewise, we VACATE Jackson’s

-- 4 of 5 --

Nos. 15-3693 & 14-2898 5
conviction for using or carrying a firearm to commit a federal
crime of violence and REMAND for resentencing. 865 F.3d at
956. And, for the reasons expressed in our August 4, 2017,
opinion, we also VACATE and REMAND for resentencing
without the organizer or supervisor adjustment under
U.S.S.G. § 3B1.1. Id. at 954–56.

-- 5 of 5 --