FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. Jon D. Levy, U.S. District Judge]
Hilary Billings on brief for appellant.
Benjamin M. Block, Assistant United States Attorney, and
Halsey B. Frank, United States Attorney, on brief for
Lynch, Stahl, and Thompson, Circuit Judges.
direct appeal after entry of a guilty plea raises important
questions under federal criminal law, particularly whether it
is appropriate to use the categorical approach in determining
what is a "crime of violence" under 18 U.S.C.
Douglas entered a conditional plea of guilty to charges of
conspiracy to commit a Hobbs Act robbery, in violation of 18
U.S.C. § 1951(a), and of using, carrying, or brandishing
a firearm in relation to a "crime of violence," in
violation of 18 U.S.C. § 924(c)(1). Douglas now appeals
the district court's denial of his motion, before the
plea, to dismiss a portion of the latter charge, on the
ground that the residual clause at 18 U.S.C. §
924(c)(3)(B) is unconstitutionally vague under
Johnson v. United States, 135
S.Ct. 2551 (2015), and Sessions v.
Dimaya, 138 S.Ct. 1204 (2018). See United
States v. Williams, 179 F.Supp.3d 141
(D. Me. 2016). The district court did not reach this issue in
denying the motion. Id.
de novo review, we conclude that § 924(c)(3)(B) is not,
as Douglas argues, void for vagueness. That is because the
statute reasonably allows for a case-specific approach,
considering real-world conduct, rather than a categorical
approach, and because Douglas's conspiracy to commit a
Hobbs Act robbery qualifies as a "crime of
violence." We largely agree with the reasoning of the
Second Circuit in a similar case, United States
v. Barrett, 903 F.3d 166 (2d Cir. 2018),
save for one point, and with the result and much of the
reasoning in Ovalles v. United
States, No. 17-10172, 2018 WL 4830079 (11th Cir. Oct. 4,
2018) (en banc). We affirm.
describe the background facts of the underlying offense,
accepted by both parties,  because they are relevant to a
case-specific, real-world analysis of a "crime of
violence" under § 924(c)(3)(b).
August 2014, Douglas, along with Kourtney Williams, Victor
Lara, Jr., and Heidi Hutchinson, conspired to commit a home
invasion robbery in Minot, Maine. Williams, Lara, and
Hutchinson began planning the robbery on July 26; Douglas
joined the conspiracy on either August 1 or August
The conspirators targeted the house of a person they believed
to be engaged in illegal drug trafficking, in order to steal
Percocet (oxycodone) pills and proceeds from the drug
August 2, Hutchinson drove the other conspirators to the
targeted house in Minot and waited outside after dropping
them off. Lara, Williams, and Douglas, in partial disguise,
entered the house by breaking a glass sliding door. They
yelled "get down," "DEA," and
"police." Williams carried a pistol; Lara had a
crowbar. Douglas found in a bedroom a 9-millimeter Beretta
handgun with an extended clip, which he took and brandished
during the robbery.
conspirators found three men inside the house, whom they
tried to secure by placing zip ties around the men's
hands.But the zip ties were not large enough for
assaulted the three men with a crowbar. First, Lara beat and
bloodied one man, striking him in the back, shoulders, and
head with a crowbar because he did not look away from the
conspirators when told to do so. Lara later beat him again
with a crowbar when he said that he did not know the
combination to a safe in the house. Lara beat a second man in
the back, shoulders, arms, and thighs with a crowbar after he
was found hiding under a futon. Lara also beat the third man
in the face, legs, and back.
and Williams also threatened the three men several times with
firearms. The conspirators demanded that the men, at
gunpoint, give them "the shit" and the combination
to the safe. Douglas also forced the first man to the garage,
with Douglas holding his hand on the man's neck and
pressing a gun to his head. After the man stated that there
was nothing in the garage, Lara told Douglas to shoot him,
but Douglas did not do so. One of the conspirators also
dragged that man down a hallway, holding him in a headlock.
unsuccessfully searching the house for oxycodone and money,
Williams and Lara then forced two of the men outside at
gunpoint. The first man -- believing he was about to be shot
--fled to a neighbor's house. He saw the conspirators run
to Hutchinson in the waiting SUV and drive away. The third
man escaped and called the police from another neighbor's
conspirators did not find any pills or proceeds. They did
steal a video game console, six to eight ounces of marijuana,
and the Beretta pistol that Douglas had found, taken, and
brandished during the robbery. Police, acting with a search
warrant for the house, found the crowbar and zip ties used in
the robbery. DEA agents later found items at the house that
the conspirators had unsuccessfully sought: 147
fifteen-milligram and 504 thirty-milligram oxycodone pills,
376 grams of powder cocaine, thirty-three pounds of
marijuana, and more than $6, 000 in cash. Later, pursuant to
a warrant, the police searched a storage unit used by the
conspirators and found the two guns brandished in the
April 7, 2015, Douglas was charged with four counts of a
seven count indictment: conspiracy to possess with intent to
distribute oxycodone, in violation of 21 U.S.C. § 846
(Count One); conspiracy to commit a Hobbs Act robbery, in
violation of 18 U.S.C. § 1951(a) (Count Two); possession
of a firearm as a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1) (Count Five); and knowingly using, carrying,
and brandishing a firearm during a crime of violence, in
violation of 18 U.S.C. § 924(c)(1) (Count Six).
moved to dismiss the portion of Count Six containing
"the allegation that he knowingly used, carried, and
brandished a firearm during and in relation to a crime of
violence." In effect, he claimed that a conspiracy to
commit a Hobbs Act robbery does not qualify as a "crime
of violence" under 18 U.S.C. § 924(c).
district court denied this motion in an order issued on April
15, 2016. Williams, 179 F.Supp.3d at 155. Taking a
categorical approach to the "force
clause" at § 924(c)(3)(A), the district court
determined that "a conspiracy to commit a Hobbs Act
robbery may serve as a predicate 'crime of violence'
under the 'force clause.'"
Id. The district court did not reach Douglas's
argument that § 924(c)(3)(B), the residual clause,
void for vagueness in light of Johnson. Id.
then entered a conditional guilty plea to Counts Two and Six,
reserving his right to appeal the district court's denial
of the motion to dismiss a portion of Count Six. At the Rule
11 hearing, Douglas affirmed that he understood the basis for
the charges. Defense counsel acknowledged that the
"admissible part of the evidence would permit a properly
instructed jury to determine beyond a reasonable doubt"
that Douglas had committed the charged offenses.
district court sentenced Douglas to 108 months'
imprisonment: twenty-four months on Count Two and eighty-four
months on Count Six, to be served consecutively. Douglas
appealed the denial of his motion to dismiss.
address three substantive issues. First, we consider
Douglas's assertion that the government has waived its
key argument on appeal that the use of the term "crime
of violence" in § 924(c)(3)(B) allows for a
case-specific rather than a categorical approach, by not
asserting it in the district court.The government acknowledges
it made a concession, but argues it was not a waiver. Second,
we reach the merits of Douglas's argument that, under
Johnson and Dimaya, the residual clause at
§ 924(c)(3)(B) is void for vagueness. The government
does not defend the district court's alternate rationale
or contend that the conspiracy charged would qualify as a
"crime of violence" under the force clause at
§ 924(c)(3)(A), so we do not address this
point. Third, because we find that §
924(c)(3)(B) is not void for vagueness, we consider -- by a
case-specific, real-world approach -- whether Douglas's
particular conspiracy to commit a Hobbs Act robbery qualifies
as a "crime of violence" under the residual clause.
We affirm the denial of the motion to dismiss.
review de novo the denial of Douglas's motion to dismiss
a portion of Count Six of his indictment, as Douglas's
appeal challenges the constitutionality of a federal statute.
See, e.g., United States
v. Hussein, 351 F.3d 9, 14 (1st Cir. 2003).
And we also review de novo the proper understanding and
application of "crime of violence" in the residual
clause. See, e.g., United States
v. Turner, 501 F.3d 59, 67 (1st Cir. 2007).
Concession and Waiver
to the intertwined issues of concession and waiver. At the
district court proceedings, which occurred before the Supreme
Court's decision in Dimaya, the government
acknowledged that § 924(c)(3)(B) "involves a
risk-based analysis of the 'ordinary case' of a
predicate offense." Douglas argues, albeit solely in his
reply brief, that the government has therefore waived its
argument that § 924(c)(3)(B) allows for a case-specific,
real-world approach rather than a categorical approach. The
government asserts that its acknowledgement of the
categorical approach in the district court should be viewed
at most as a concession made for purposes of argument.
Admittedly, the line between waiver and concession is a hazy
one. See, e.g., United States v.
Torres-Rosario, 658 F.3d 110, 116 (1st Cir. 2011)
("Courts are not always consistent in their use of the
term waiver . . . . [A]n explicit concession can
waive both existing and yet-to-be-recognized rights."
(emphasis in original)). Whether the government's
acknowledgment in the district court is best viewed as a
concession or a waiver, the situation here -- where an
intervening Supreme Court case, Dimaya, has shifted
the relevant legal landscape -- leads us to conclude that we
should review the substantive issue.
is clear that a "concession by either party in a
criminal case as to a legal conclusion is not binding on an
appellate court." United States v.
Sanchez-Berrios, 424 F.3d 65, 81 (1st Cir. 2005);
accord United States v.
Borrero-Acevedo, 533 F.3d 11, 15 n.3 (1st Cir.
2008). There are at least three "pertinent
considerations" in determining whether we should address
an earlier concession by a party:
1) whether the issue is recurrent so that decision would give
guidance to the district courts, 2) whether it would be
unseemly to accept, even arguendo, a mistaken legal
proposition and reason from it to decide the case, and 3)
whether the issues are technical and complex and not explored
carefully in existing decisions so that adversary briefing
would be critical.
F.3d 1, 8 n.2 (1st Cir. 2004). Each consideration leads us to
bypass the so-called concession and reach the merits. Indeed,
the opinion in Dimaya alone would ...