In June 2019, the United States Supreme Court struck down the residual clause of 18 U.S.C. § 924(c)(3) as unconstitutionally vague in the landmark case of United States v. Davis, 139 S.Ct. 2319 (2019). In most Circuits, the new rule of law has been made retroactive to cases on collateral review. What does this mean for offenders who have been convicted of § 924(c)?
924(c) consists of two parts
There are two clauses in 924(c) and only one part has been invalidated. Determining whether a conviction falls within the part of the statute that U.S. v. Davis struck down can be somewhat complicated. At the time of many convictions, the district court did not explicitly state which part of 924(c) a conviction was based.
Is the underlying offense a “crime of violence”?
To remain a crime of violence, the underlying conviction must have as an element, “the use, attempted use, or threatened use of physical force against the person or property of another.” The first step is to determine which elements are part of the underlying conviction. If the statute is indivisible, a categorical analysis is used on the language of the statute. If the statute is divisible, a modified categorical analysis is used to determine which elements the offender was convicted of. Once determined, the categorical analysis is used to determine whether the statute is a crime of violence.
In the categorical analysis, you look at the minimum conduct the government must prove to obtain a conviction under the language of the statute. The particular details of the offense are not considered. If that minimum conduct requires the government prove an element of violence, then the underlying offense is a crime of violence and U.S. v. Davis does not apply.
How do I go about challenging a past conviction for 924(c)?
In federal court, there is a one year deadline for filing a post-conviction motion to vacate under 28 U.S.C. § 2255. However, when the Supreme Court issues a new rule of law made retroactive to cases on collateral review, the one year deadline starts over on the date the Supreme Court issues its ruling. Therefore, any challenges to past convictions for 924(c) must be filed on or before June 21, 2020 or the court will not consider them timely.
The law is not as simple as it seems, and it is highly advisable to hire an attorney
While seemingly straightforward, the case law is rather complicated for determining whether underlying convictions qualify as a crime of violence. Also, if not plead correctly, the court may dismiss the petition on procedural grounds. An experienced criminal appeals attorney can assist in filing the proper documents in order to effectively challenge a 924(c) conviction.