1 14

‐ 3872

‐ cr

United States v. Hill

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2015

(Argued: November 12, 2015 Decided: August 3, 2016)

No. 14

‐ 3872

‐ cr

––––––––––––––––––– –––––––––––––––––

U NITED S TATES OF A MERICA

,

Appellee

,

‐ v. ‐

E LVIN H ILL

, A / K / A E LTON

,

Defendant

‐ Appellant

.

––––––––––––––––––– –––––––––––––––––

Before: J ACOBS

, L IVINGSTON

, and D RONEY

, Circuit Judges

.

Defendant

‐ appellant Elvin Hill appeals from his judgment of conviction,

dated October 3, 2014, in the United States District Court for the Eastern District

of New York (Matsumoto, J. ). Hill was convicted of violating 18 U.S.C.

§ 924(j)(1), for a firearm

‐ related murder committed in the course of a crime of

violence pursuant to 18 U.S.C. § 924(c), in this case, Hobbs Act robbery, as

defined in 18 U.S.C. § 1951(b)(1). A summary order issued concurrently with

this opinion addresses and rejects most of Hill’s claims on appeal. This opinion

considers one of Hill’s challenges to his conviction: whether Hobbs Act robbery

qualifies as a “crime of violence” under 18 U.S.C. § 924(c)(3). We hold that it2 does. First, we find that Hobbs Act robbery is categorically a “crime of

violence” under the “force clause” of this statute, § 924(c)(3)(A). Second, we

reject Hill’s argument that the Supreme Court in Johnson v. United States

, 135

S. Ct. 2551 (2015), effectively rendered the “risk

‐ of

‐ force clause,” § 924(c)(3)(B),

void for vagueness. Accordingly, the judgment of conviction is AFFIRMED

.

F OR A PPELLEE : D ANIEL S. S ILVER

, Amy Busa, Seth D.

DuCharme, Assistant United States

Attorneys, New York, N.Y., for Robert L.

Capers, United States Attorney for the

Eastern District of New York, for the United

States of America

.

F OR D EFENDANT

‐ A PPELLANT : Y UANCHUNG L EE

, Federal Defenders of

New York, New York, N.Y., for Elvin Hill.

D EBRA A NN L IVINGSTON

, Circuit Judge :

In 1997, Fredy Cuenca, a livery cab driver, was robbed, shot, and killed

after picking up a fare in the middle of the day in Brooklyn. Almost 14 years

later, Rhan Powell admitted he was one of the two passengers who robbed

Cuenca. He also attested that Elvin Hill was the second passenger

— the one

who carried the weapon and pulled the trigger. The Government filed an

indictment, charging Hill with violating 18 U.S.C. § 924(j)(1) for committing a

firearm

‐ related murder in the course of a “crime of violence,” as defined in 18

U.S.C. § 924(c)(3). In this case, the crime of violence was Hobbs Act robbery, as3 defined in 18 U.S.C. § 1951(b)(1). Hill pleaded not guilty, proceeded to trial,

and was convicted of the charged offense.

This case raises the question whether Hobbs Act robbery is a “crime of

violence” within the meaning of 18 U.S.C. § 924(c)(3). 1 Hill argues that Hobbs

Act robbery does not qualify categorically as a crime of violence under the

statute’s “force clause,” § 924(c)(3)(A), because it can be committed without

physical force or the threatened deployment of the same. He also contends that

Hobbs Act robbery cannot qualify as a crime of violence under the “risk

‐ of

‐ force

clause,” § 924(c)(3)(B), because the Supreme Court’s decision in Johnson v. United

States

, 135 S. Ct. 2551 ( Johnson II ) (2015), effectively rendered that clause

unconstitutionally vague.

We reject both arguments and hold that Hobbs Act robbery is a crime of

violence under 18 U.S.C. § 924(c)(3). Accordingly, we affirm the district court’s

judgment of conviction.

1 Hill brings a number of additional claims on appeal, which we address in a

summary order concurrently issued today.4 BACKGROUND 2

Fredy Cuenca was a livery cab driver in New York City. One afternoon,

on June 29, 1997, he received a call from his dispatcher requesting a pickup in the

Bushwick neighborhood of Brooklyn. Two young men, Elvin Hill and Rhan

Powell, entered Cuenca’s cab. According to Powell, as they were reaching the

destination, Cuenca quoted the fare price, $10, which was higher than Hill and

Powell had anticipated. Powell suggested to Hill that they rob Cuenca. When

Cuenca stopped the cab, Hill yelled out, “[g]ive me the fucking money.” Joint

App’x 295. Cuenca handed some money he had in his hand to Powell. As

Powell was exiting the vehicle, Cuenca began to plead for his life in broken

English, pointing to a photograph of his children on the dashboard. Outside the

vehicle, Powell then heard a loud sound and saw “red on the windshield.” Id.

at 296. Hill had shot Cuenca

— once, in the head

— with a previously

concealed handgun. Hill and Powell fled the scene. Cuenca died.

Several witnesses heard the fatal gunshot and saw two young men exiting

the cab and fleeing the scene. One witness identified Hill as one of the

2 The factual background presented here is derived from the testimony and

evidence presented at Hill’s trial.5 assailants during a lineup conducted about two months after the crime. 3 But

Hill was not charged with the crime at that time. Rather, the indictment came

nearly 15 years later.

On April 26, 2011, Powell testified before a grand jury in the Eastern

District of New York and admitted that he was one of the two passengers

involved in the 1997 robbery. He testified that Hill was the one who had killed

Cuenca. On March 22, 2012, another federal grand jury, relying in part on

Powell’s 2011 testimony, returned an indictment against Hill. Therein, Hill was

charged with violating 18 U.S.C. § 924(j)(1), for committing a firearms

‐ related

murder in the course of a “crime of violence,” as defined in 18 U.S.C. § 924(c)(3).

The alleged predicate crime of violence was Hobbs Act robbery, as defined in 18

U.S.C. § 1951(b)(1).

Hill pleaded not guilty and proceeded to trial in the United States District

Court for the Eastern District of New York (Matsumoto, J. ). On January 24,

2014, the jury returned a guilty verdict. The district court sentenced Hill to 43

3 Hill challenges the identification evidence from the lineup, a challenge we

determine to be without merit in the summary order published today.6 years’ imprisonment and entered a judgment of conviction dated October 3,

2014. This appeal followed.

DISCUSSION

This opinion addresses one of Hill’s claims on appeal: whether Hobbs Act

robbery is a “crime of violence” within the meaning of 18 U.S.C. § 924(c)(3).

Hill argues that Hobbs Act robbery does not qualify as a crime of violence on

two grounds. First, he claims that Hobbs Act robbery fails to categorically

constitute a crime of violence under the statute’s “force clause,” § 924(c)(3)(A).

Second, he argues that the “risk

‐ of

‐ force clause,” § 924(c)(3)(B), should be

deemed void for vagueness under the Supreme Court’s decision in Johnson II

.

We reject both contentions.

I

We begin with the interlocking statutory provisions involved in this

appeal. Hill was indicted and convicted under 18 U.S.C. § 924(j)(1). This

provision specifies as follows:

A person who, in the course of a violation of subsection (c), causes

the death of a person through the use of a firearm, shall[,]

. . . if the

killing is a murder (as defined in section 1111), be punished by death

or by imprisonment for any term of years or for life

. . . .7 Section 924(c)(1)(A) in turn explains that “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” violates subsection (c).

Critically, subsection (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.

18 U.S.C. § 924(c)(3). We refer to § 924(c)(3)(A) as the “force clause” and

§ 924(c)(3)(B) as the “risk

‐ of

‐ force clause.” 4

The “crime of violence” alleged in Hill’s indictment was Hobbs Act

robbery, in violation of 18 U.S.C. § 1951. Section 1951(a) penalizes a person who

“in any way or degree obstructs, delays, or affects commerce

. . . by robbery or

extortion or attempts or conspires so to do, or commits or threatens physical

violence to any person or property in furtherance of a plan or purpose to do

4 The parties’ briefs refer to § 924(c)(3)(B) as the “residual clause.” We think the

shorthand “risk

‐ of

‐ force clause” is clearer and thus adopt that terminology.8 anything in violation of this section.” And § 1951(b)(1) defines “robbery” to

mean

the unlawful taking or obtaining of personal property from the

person or in the presence of another, against his will, by means of

actual or threatened force, or violence, or fear of injury, immediate

or future, to his person or property, or property in his custody or

possession, or the person or property of a relative or member of his

family or of anyone in his company at the time of the taking or

obtaining.

Taking these statutes together, the jury found that Hill used a firearm to

commit a Hobbs Act robbery

— pursuant to the Government’s theory, a “crime

of violence” under the firearm statute

— and, in the course of that robbery, he

murdered Cuenca in violation of § 924(j)(1).

II

A

We first consider Hill’s claim that Hobbs Act robbery categorically fails to

constitute a crime of violence under the force clause. To determine whether an

offense is a crime of violence, courts employ what has come to be known as the

“categorical approach.” Taylor v. United States

, 495 U.S. 575, 600 (1990); see also

Mathis v. United States

, 136 S. Ct. 2243, 2248

‐ 49 (2016) (outlining the categorical

approach); Descamps v. United States

, 133 S. Ct. 2276, 2281 (2013) (same); United

States v. Acosta

, 470 F.3d 132, 135 (2d Cir. 2006) (per curiam) (applying the9 categorical approach to determine whether a predicate crime was a “crime of

violence” under § 924(c)). We have explained that the categorical approach is

“‘not only consistent with both precedent and sound policy’ but[] also

. . .

‘necessary in view of the language of the applicable statutes.’” Vargas

‐ Sarmiento

v. U.S. Dep ʹ t of Justice

, 448 F.3d 159, 167 (2d Cir. 2006) (quoting Jobson v. Ashcroft

,

326 F.3d 367, 372 (2d Cir. 2003)). The categorical approach guides our analysis

here. 5

Under the categorical approach, courts identify “the minimum criminal

conduct necessary for conviction under a particular statute.” Acosta

, 470 F.3d at

135. In doing so, courts “‘look only to the statutory definitions’

— i.e.

, the

elements

— of [the]

. . . offense[], and not ‘to the particular [underlying] facts.’”

5 Hill does not contest that the Hobbs Act is a divisible statute, and that Hill was

charged with Hobbs Act robbery (as opposed to, say, Hobbs Act extortion). A divisible

statute “sets out one or more elements of the offense in the alternative.” Descamps

, 133

S. Ct. at 2281; see also Vargas

‐ Sarmiento

, 448 F.3d at 167 (explaining how to identify

divisible penal statutes). If some but not all of the alternative elements would amount

to a crime of violence, a court can “modify” the categorical approach by looking at a

limited set of documents, including the indictment, to consider under which portion of

the statute the defendant was charged. See Descamps

, 133 S. Ct. at 2284

‐ 85. After

determining which portion was at issue, a court then applies the categorical approach to

that part of the challenged statute. Id. Hill agrees that the Hobbs Act is divisible, but

argues that Hobbs Act robbery is not, and the Government does not contest this

assertion. See Hill Supp. Br. 23 n.9. See generally Gov’t Supp. Br. 6

‐ 16 (relying on the

categorical, rather than the modified categorical, approach). To that end, we express

no view regarding whether Hobbs Act robbery is itself divisible, and we apply the

standard categorical approach to the entire offense as defined in the statute.10 Descamps

, 133 S. Ct. at 2283 (quoting Taylor

, 495 U.S. at 600); see also Acosta

, 470

F.3d at 135 (“[W]e focus on the intrinsic nature of the offense rather than on the

circumstances of the particular crime.”). The reviewing court “cannot go

behind the offense as it was charged to reach [its] own determination as to

whether the underlying facts” qualify the offense as, in this case, a crime of

violence. Ming Lam Sui v. INS

, 250 F.3d 105, 117

‐ 18 (2d Cir. 2001) (quoting Lewis

v. INS

, 194 F.3d 539, 543 (4th Cir. 1999)). As relevant here, the categorical

approach requires us to consider the minimum conduct necessary for a

conviction of the predicate offense (in this case, a Hobbs Act robbery), and then

to consider whether such conduct amounts to a crime of violence under

§ 924(c)(3)(A).

One final point remains. Critically, the Supreme Court has made clear in

employing the categorical approach that to show a predicate conviction is not a

crime of violence “requires more than the application of legal imagination to

[the]

. . . statute’s language.” Gonzales v. Duenas

‐ Alvarez

, 549 U.S. 183, 193

(2007)

. As relevant here, there must be “a realistic probability, not a theoretical

possibility,” that the statute at issue could be applied to conduct that does not

constitute a crime of violence. Id. To show that a particular reading of the11 statute is realistic, a defendant “must at least point to his own case or other cases

in which the

. . . courts in fact did apply the statute in the

. . . manner for which

he argues.” Id. To that end, the categorical approach must be grounded in

reality, logic, and precedent, not flights of fancy. See Moncrieffe v. Holder

, 133

S. Ct. 1678, 1684

‐ 85 (2013) (noting that “focus on the minimum conduct

criminalized by the [relevant] statute is not an invitation to apply ‘legal

imagination’ to the

. . . offense” (quoting Duenas

‐ Alvarez

, 549 U.S. at 193)).

B

The question whether Hobbs Act robbery constitutes a crime of violence

under the force clause is a matter of first impression in our Circuit. 6 We have,

however, previously stated that conspiracy to commit Hobbs Act robbery is a

crime of violence under the Bail Reform Act (which employs the same definition

6 The Ninth Circuit recently reiterated its conclusion that Hobbs Act robbery

satisfies the force clause. See United States v. Howard

, No. 15

‐ 10042, 2016 WL 2961978

(9th Cir. May 23, 2016, amended Jun. 24, 2016) (mem.) (concluding that Hobbs Act

robbery is a “crime of violence” under 18 U.S.C. § 924(c)(3)(A) and disagreeing with the

defendant’s argument that the “fear of injury” language requires an alternative

conclusion); United States v. Mendez

, 992 F.2d 1488, 1491 (9th Cir. 1993) (observing that a

substantive Hobbs Act robbery offense “indisputably qualifies as a crime of violence,” a

conclusion from which the court derived its holding that conspiracy to commit such an

offense categorically creates a “substantial risk that physical force may be used”); see

also United States v. Farmer

, 73 F.3d 836, 842 (8th Cir. 1996) (concluding that Hobbs Act

robbery “has as an element the use, attempted use, or threatened use of physical force

against the person of another” such that it qualifies as a “serious violent felony” under

18 U.S.C. § 3559(c)).12 of the term as in § 924(c)(3)) because one of the elements of the offense “is actual

or threatened use of force” and “if the element of violence is not present, no

conviction under section 1951 can occur.” United States v. DiSomma

, 951 F.2d

494, 496 (2d Cir. 1991) (citing 18 U.S.C. § 1951(b)(1)); see also United States v.

Santos

, 449 F.3d 93, 99 (2d Cir. 2005) (noting that conspiracy to commit Hobbs Act

robbery requires an intent to take personal property “by force”); cf. VAM Check

Cashing Corp. v. Fed. Ins. Co.

, 699 F.3d 727, 730 n.2 (2d Cir. 2012) (suggesting that

the definition of robbery in 18 U.S.C. § 1951 “limit[s] the crime to larcenies

committed by force or threat of force”).

As stated above, the term “robbery” in the Hobbs Act is defined, in

relevant part, as “the unlawful taking or obtaining of personal property from the

person or in the presence of another, against his will, by means of actual or

threatened force, or violence, or fear of injury, immediate or future, to his person

or property.” 18 U.S.C. § 1951(b)(1). Hill does not dispute that at least two of

the ways in which a Hobbs Act robbery may be accomplished (by means of

“actual or threatened force” or “violence”) would appear, self

‐ evidently, to

satisfy § 924(c)’s force clause (defining a crime of violence as any felony that “has

as an element the use, attempted use, or threatened use of physical force against13 the person or property of another”). He focuses instead on those Hobbs Act

robberies accomplished by means of putting the victim in “fear of injury” to his

person or property, arguing that such robberies can be accomplished without the

“use, attempted use, or threatened use of physical force” so that the minimum

conduct necessary to commit a Hobbs Act robbery does not include the element

necessary to qualify such robberies as crimes of violence for the purpose of

§ 924(c)(3)(A). Hill primarily advances two arguments to support this

contention. We disagree with both.

Hill first contends that a perpetrator could rob a victim by putting him in

fear of injury to his property through non

‐ forceful means. He offers

hypotheticals such as threatening to throw paint on the victim’s house, to spray

paint his car, or, most colorfully, to “pour[ ] chocolate syrup on his passport.”

Hill Supp. Br. 29. Hill argues that Johnson v. United States

, 559 U.S. 133

( Johnson I ) (2010), made clear that the physical force that must be used,

attempted, or threatened to satisfy statutory language such as that in

§ 924(c)(3)(A) must be “violent,” “great,” or “strong.” 7 On that basis, Hill

7 Johnson I construed the meaning of physical force for purposes of 18 U.S.C.

§ 924(e)(2)(B)(i) which, in relevant part, defines a violent felony for purposes of the

Armed Career Criminal Act (“ACCA”) as a crime that “has as an element the use,14 argues that, assuming his hypothetical acts would indeed be sufficient to put a

victim in “fear of injury” to his property so that a Hobbs Act robbery might be

accomplished (a proposition that is hardly obvious as a practical and

precedential matter), the force employed in these hypothetical cases would be

insufficient to satisfy the standard in Johnson I

. 8 We disagree.

attempted use, or threatened use of physical force against the person of another.” This

provision thus employs language identical to that used in § 924(c)(3)(A), except for the

fact that “crime of violence” is defined in the latter to include crimes having as an

element the actual, attempted, or threatened use of physical force “against the person or

property of another.” § 924(c)(3)(A) (emphasis added).

8 Hill also suggests, along these same lines, that a perpetrator could successfully

commit Hobbs Act robbery by putting a victim in fear of economic injury to an

intangible asset without the use of physical force. Hill relies almost exclusively on

hypotheticals, not actual cases, to suggest that there is a realistic possibility that Hobbs

Act robbery could extend to such a fact pattern. He does cite a Fourth Circuit case,

United States v. Iozzi

, 420 F.2d 512 (4th Cir. 1970), but that case involved a charge of

Hobbs Act extortion

, not robbery, on the basis that “[the defendant] obtained or

attempted to obtain money from building contractors with their consent by causing the

contractors to fear financial and economic loss,” id. at 513 (emphasis added). The

Government, for its part, contends that “[i]t defies logic to suggest that someone could

be robbed by placing him in ‘fear of injury’ without using or threatening to use physical

force.” Gov’t Supp. Br. 12; see also DiSomma

, 951 F.2d at 496 (“[I]f the element of

violence is not present, no conviction under section 1951 can occur.”). We conclude as

to this argument that while it may indeed be the case that Hobbs Act robbery does not

extend to the hypotheticals Hill posits, see United States v. Pena

, No. 15

‐ cr

‐ 551 (AJN),

2016 WL 690746, at *11 (S.D.N.Y. Feb. 11, 2016) (concluding that “fear of injury” in the

Hobbs Act robbery statute requires “fear of injury from the use of force”), we need not

explicate the statute’s outer limits in this regard, as Hill has failed to show any realistic

probability that a perpetrator could effect such a robbery in the manner he posits

without employing or threatening physical force, see Duenas

‐ Alvarez

, 549 U.S. at 193

(noting that a predicate conviction fails to qualify as a crime of violence using the15 Hill’s argument rests on a flawed reading of Johnson I

. In that case, the

Court declined to construe “physical force” for the purposes of § 924(e)(2)(B)(i) in

line with the common

‐ law crime of battery, which deemed the element of “force”

to be satisfied “by even the slightest offensive touching.” 9 559 U.S. at 139. But

in rejecting this interpretive approach, the Court did not construe § 924(e)(2)(B)(i)

to require that a particular quantum of force be employed or threatened to satisfy

its physical force requirement. The Court concluded, instead, that “physical

categorical approach only when there is “a realistic probability, not a theoretical

possibility” that the statute at issue could be applied to conduct not constituting such a

crime).

9 We assume arguendo Johnson I ’s relevance to the construction of § 924(c)(3)(A),

but note that the case might not apply to the present statute for at least two reasons.

First, as a matter of precedent, our Circuit has long defined the meaning of “physical

force” in the context of 18 U.S.C. § 16 (which employs language similar to that used in

§ 924(c)(3)(A)) as “power, violence, or pressure directed against a person or thing,” and

we have affirmed this understanding of force in post

‐ Johnson I cases. See Morris v.

Holder

, 676 F.3d 309, 314 (2d Cir. 2012) (quoting Vargas

‐ Sarmiento

, 448 F.3d at 169); see

also Acosta

, 470 F.3d at 134

‐ 35 (noting that this Circuit has interpreted § 16 and

§ 924(c)(3)(A) by applying the same case law). Second, Johnson I ’s reasoning does not

necessarily extend to a statute like § 924(c)(3)(A), which includes within its definition of

crime of violence those felonies that have as an element physical force threatened or

employed against the person or property of another, as opposed to only the former.

Johnson I ’s holding rejected the possibility that mere “offensive touching,” sufficient for

common

‐ law battery, could constitute a use of physical force in the context of

§ 924(e)(2)(B)(i). Johnson I

, 559 U.S. at 139. Yet it is not obvious what “offensive

touching” could possibly mean for property

— a point that may suggest Johnson I is

inapplicable to the force clause herein, or may simply reinforce our conclusion that

nothing in Johnson I suggests that force sufficient to injure property would, under that

decision, be insufficient to count as a use of physical force.16 force” as used in § 924(e)(2)(B)(i) (which defines a violent felony in relevant part

as a crime that “has as an element the use, attempted use, or threatened use of

physical force against the person of another”) means simply “ violent force

— that

is, force capable of causing physical pain or injury to another person.” 559 U.S.

at 140; see also United States v. Castleman

, 134 S. Ct. 1405, 1417 (2014) (Scalia, J.,

concurring in part and concurring in judgment) (rejecting the argument that

Johnson I “requires force capable of inflicting ‘serious’ bodily injury,” as opposed

to “force capable of causing physical pain or injury, serious or otherwise”).

Assuming arguendo Johnson I ’s relevance to the construction of § 924(c)(3),

“physical force” as used in the provision at issue here means no more nor less

than force capable of causing physical pain or injury to a person or injury to

property. See § 924(c)(3) (defining “crime of violence” in relevant part as a

felony with an element requiring “use, attempted use, or threatened use of

physical force against the person or property of another” (emphasis added)).

Hill’s hypotheticals then

— to the degree that they would indeed satisfy the

Hobbs Act’s “fear of injury” standard

— do not fail to involve the use or

threatened use of physical force.17 Hill’s second claim is no more successful. Hill next contends that an

individual can commit a Hobbs Act robbery without using or threatening the use

of physical force by putting the victim in fear of injury through such means, inter

alia

, as threatening to withhold vital medicine from the victim or to poison him.

Lacking any case in which a defendant was in fact convicted for committing

Hobbs Act robbery through such means, Hill relies principally on these

hypotheticals to argue that such conduct entails an insufficient direct application

of physical force to satisfy the force clause

— even if it indisputably involves the

threatened indirect application of force. These hypotheticals are insufficient

because a defendant is required to “point to his own case or other cases in which

the

. . . courts in fact did apply the statute” in such a manner to show that there is

a “realistic probability” that the Hobbs Act would reach the conduct Hill

describes. Duenas

‐ Alvarez

, 549 U.S. at 193. 10 Even assuming, arguendo

, that

there is indeed a “realistic probability” that the Hobbs Act would reach the

10 This requirement also undermines Hill’s suggestion that a perpetrator could

successfully commit Hobbs Act robbery by unintentionally placing a victim in fear of

injury. In support of this argument, he cites a line of out

‐ of

‐ circuit cases interpreting

the “intimidation” element of the federal bank robbery statute, 18 U.S.C. § 2113(a), as

including unintentional intimidation. See, e.g.

, United States v. Kelley

, 412 F.3d 1240,

1244 (11th Cir. 2005). However, these decisions are insufficient because, as is the case

with his contention that Hobbs Act robbery includes threats involving the indirect

application of force, Hill cannot point to cases in which “courts in fact did apply the

statute in the

. . . manner for which he argues.” Duenas

‐ Alvarez

, 549 U.S. at 193.18 conduct Hill describes (or analogous conduct), we again disagree that these

hypotheticals demonstrate that a Hobbs Act robbery is not categorically a crime

of violence for the purpose of § 924(c)(3)(A).

Hill argues, in effect, that placing a victim in fear of injury by threatening

the indirect application of physical force is not sufficient to constitute the

threatened use of physical force. Yet the Supreme Court has suggested

otherwise. In Castleman

, the Supreme Court, construing “physical force” as it is

employed in connection with § 922(g)(9), made clear that physical force

“encompasses even its indirect application,” as when a battery is committed by

administering a poison: “That the harm occurs indirectly, rather than directly

(as with a kick or punch), does not matter” lest we conclude that pulling the

trigger on a gun involves no use of force “because it is the bullet, not the trigger,

that actually strikes the victim.” 11 134 S. Ct. at 1414

‐ 15. Hill offers no

persuasive reason why the same principle should not apply to the construction

11 Section 922(g)(9) restricts persons who have been convicted of certain

misdemeanor crimes of domestic violence from possessing firearms or ammunition.

In relevant part, the statute defines crimes of domestic violence as misdemeanors that

“ha[ve], as an element, the use or attempted use of physical force

. . . committed by a

current or former spouse, parent, or guardian of the victim, by a person with whom the

victim shares a child in common, by a person who is cohabiting with or has cohabited

with the victim as a spouse, parent, or guardian, or by a person similarly situated to a

spouse, parent, or guardian of the victim.” 18 U.S.C. § 921(a)(33)(A).19 of § 924(c)(3), so that, as regarding the Hobbs Act, a robbery still has as an

element “the use, attempted use, or threatened use of physical force against the

person or property of another,” notwithstanding that it is accomplished by

threatening to poison a victim, rather than to shoot him. Some threats do not

require specification of any particular means in order to be effective; yet they still

threaten some type of violence and the application of some force. Consider:

“That’s a nice car

— would you like to be able to continue driving it?”

Hill relies on Chrzanoski v. Ashcroft

, 327 F.3d 188, 194 (2d Cir. 2003), to

argue that “the act of placing another in fear of injury” constitutes, “at best,” a

“threat of injury

, ” which is not the same as a threat of physical force. Hill Supp.

Br. 24

‐ 25. In Chrzanoski

, we addressed a Connecticut misdemeanor that

criminalized causing injury to another person, concluding that the misdemeanor

at issue there was not a crime of violence for the purpose of deportation

proceedings and as defined in 28 U.S.C. § 16(a) because it did not require that

injury be caused through the use of physical force. 12 327 F.3d at 195

‐ 96; see also

Vargas

‐ Sarmiento

, 448 F.3d at 175 n.10 (noting that, in Chrzanoski

, “[b]ecause the

12 As already noted, § 16 defines a crime of violence similarly to § 924(c)(3), and

we have interpreted both statutes by applying the same case law. See Acosta

, 470 F.3d

at 134

‐ 35.20 plain language of the Connecticut statute did not make use of force an explicit or

implicit element, we ruled that misdemeanor third degree assault was not a crime

of violence under § 16(a)”). But as we have said, the taking of personal property

“‘by force,’

. . . is required in Hobbs Act robbery.” Santos

, 449 F.3d at 99

(emphasis added); see also DiSomma

, 951 F.2d at 496 (“[I]f the element of violence

is not present, no conviction under section 1951 can occur.”). And such

robberies may be accomplished, inter alia

, by placing the victim in fear of injury

at the point of a gun (as in the present case) or by other menacing conduct, as

when a perpetrator “wrongfully and intentionally use[s] an individual’s

reputation ‘as a prominent figure in the Russian criminal underworld alone’ to

instill fear.” Santos

, 449 F.3d at 100

‐ 01. To the degree that any aspect of

Chrzanoski ’s reasoning suggests that the conduct Hill describes does not involve

the threatened use of physical force, moreover, the Chrzanoski panel did not have

the benefit of the Supreme Court’s reasoning in Castleman to the effect that a use

of physical force can encompass acts undertaken to cause physical harm, even

when the harm occurs indirectly (as with poisoning) “rather than directly (as

with a kick or punch).” Castleman, 134 S. Ct. at 1415; see also Vargas

‐ Sarmiento

,

448 F.3d at 175 (observing, in the context of § 16(b), that “we are not persuaded21 by [the] argument that first

‐ degree manslaughter is not a crime of violence when

it is committed by a person who intentionally poisons the food of an unwitting

victim rather than by a person who directly injects the poison into his victim’s

arm[, as i]n either situation, the killer has intentionally availed himself of the

forceful physical properties of poison to cause death”). Accordingly, we are

unpersuaded by Hill’s reliance on Chrzanoski.

In sum, we agree with the Ninth Circuit, see supra note 6, that Hobbs Act

robbery “has as an element the use, attempted use, or threatened use of physical

force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A). We

have considered each of Hill’s arguments to the contrary and conclude that they

are all without merit. 13

13 A panel of this circuit recently held that New York’s first

‐ degree robbery

statute, see N.Y. Penal Law §§ 160.00, 160.15, fails to categorically qualify as a “crime of

violence” for purposes of U.S.S.G. § 4B1.2(a)(1), as it is possible to commit it “without

necessarily using violent force.” United States v. Jones

, No. 15

‐ 1518, 2016 WL 3923838,

at *6 (2d Cir. July 21, 2016). Hill’s suggestion that this decision has any relevance to

ours is mistaken. The Jones panel addressed a distinct robbery statute, compare N.Y.

Penal Law § 160.15 (including under the definition of first

‐ degree robbery the case

where the defendant or another participant in the crime “is armed with a deadly

weapon”), with 18 U.S.C. § 1951, and it interpreted that statute with reference to a

distinct body of state

‐ law precedent inapposite in our case. See Jones

, 2016 WL

3923838, at *5. Additionally, the Jones panel assessed whether the state

‐ law conviction

was a crime of violence for purposes of U.S.S.G. § 4B1.2(a)(1) which, unlike 18

U.S.C. § 924(c)(3)(A), does not include the use or threatened use of “physical force

against the person or property of another.” § 924(c)(3)(A) (emphasis added); compare22 III

Even if Hobbs Act robbery did not qualify as a crime of violence pursuant

to § 924(c)(3)(A), such a robbery unequivocally qualifies as a crime of violence

pursuant to § 924(c)(3)(B) because it, “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). Hill does not

contend otherwise. Instead, he argues that § 924(c)(3)(B) is inapplicable here on

the ground that the risk

‐ of

‐ force clause is void for vagueness in light of Johnson II.

For the following reasons, we disagree.

The Fifth Amendment guarantees that “[n]o person shall

. . . be deprived

of life, liberty, or property, without due process of law.” From this

constitutional provision stems the proscription against vague criminal laws.

U.S.S.G. § 4B1.2(a)(1) (qualifying offenses must have “as an element the use, attempted

use, or threatened use of physical force against the person of another” (emphasis added)).

Nor is Jones’ s suggestion, in dicta, that the previous version of U.S.S.G. § 4B1.2(a) is

“likely void for vagueness in light of [ Johnson II ],” relevant to our analysis in Part III of

this opinion. Jones

, 2016 WL 3923838, at *6. Unlike the risk

‐ of

‐ force clause in this case,

the prior version of § 4B1.2(a)(2) was textually identical to § 924(e)(2)(B) (the clause at

issue in Johnson II ). See U.S.S.G. § 4B1.2(a) (2015) (defining “crime of violence” as a

qualifying offense that “is burglary of a dwelling, arson, or extortion, involves the use of

explosives, or otherwise involves conduct that presents a serious potential risk of

physical injury to another”). As we explain in this opinion, the risk

‐ of

‐ force clause at

issue here contains no confusing list of predicate offenses and is significantly narrower

in scope than the clause at issue in Johnson II

– material distinctions that make all the

difference. See infra Part III.23 “The void

‐ for

‐ vagueness doctrine prohibits the government from imposing

sanctions ‘under a criminal law so vague that it fails to give ordinary people fair

notice of the conduct it punishes, or so standardless that it invites arbitrary

enforcement.’” Welch v. United States

, 136 S. Ct. 1257, 1262 (2016) (quoting

Johnson II

, 135 S. Ct. at 2556).

In Johnson II

, the Supreme Court concluded that the “residual clause” of

the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague. 135 S. Ct. at

2557. Before Johnson II

, the ACCA worked as follows. In general, an

individual who unlawfully possessed a firearm could be punished by up to 10

years’ imprisonment. 18 U.S.C. §§ 922(g), 924(a)(2). But if the violator had

three or more prior convictions for a “serious drug offense” or a “violent felony,”

the ACCA extended his or her prison term to a minimum of 15 years and a

maximum of life. Id. § 924(e)(1). The ACCA defined a “violent felony” as any

felony 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

. . . .24 Id. § 924(e)(2)(B) (emphasis added). Johnson II determined that the so

‐ called

“residual clause” of subsection (ii), italicized above, is constitutionally invalid.

The Supreme Court in Johnson II determined that “[t]wo features of the

residual clause conspire to make it unconstitutionally vague.” 135 S. Ct. at 2557.

In particular, the Court focused on the double

‐ layered uncertainty embedded in

the clause’s operation

— which required courts employing the categorical

approach first to estimate the potential risk of physical injury posed by “a

judicially imagined ‘ordinary case’ of [the] crime” at issue, and then to consider

how this risk of injury compared to the risk posed by the four enumerated

crimes, which are themselves, the Court noted, “far from clear in respect to the

degree of risk each poses.” 14 Id. at 2557

‐ 58 (quoting Begay v. United States

, 553

14 As the Johnson II Court recognized, “[b]y asking whether the crime ‘otherwise

involves conduct that presents a serious potential risk,’

. . . the residual clause forces

courts to interpret ‘serious potential risk’ in light of the four enumerated crimes

— burglary, arson, extortion, and crimes involving the use of explosives.” 135 S. Ct. at

2558 (emphasis omitted). But no rhyme or reason appears to connect these crimes, in

terms of assessing either the method for evaluating the risk of injury posed, or the

degree of risk: “Does the ordinary burglar invade an occupied home by night or an

unoccupied home by day? Does the typical extortionist threaten his victim in person

with the use of force, or does he threaten his victim by mail with the revelation of

embarrassing personal information?” Id. The Court concluded that “[c]ommon sense

has not

. . . produced a consistent conception of the degree of risk posed by each of the

four enumerated crimes” and that these crimes “are not much more similar to one

another in kind than in degree of risk posed.” Id. at 2559.25 U.S. 137, 143 (2008)). It was these twin ambiguities

— “ combining indeterminacy

about how to measure the risk posed by a crime with indeterminacy about how

much risk it takes for the crime to qualify as a violent felony”

— that offended

the Constitution. Id. at 2558 (emphasis added); see also id. at 2560 (observing

that “[e]ach of the uncertainties in the residual clause may be tolerable in

isolation, but ‘their sum makes a task for us which at best could be only

guesswork’” (quoting United States v. Evans

, 333 U.S. 483, 495 (1948))).

We conclude that the Supreme Court’s explanation for its conclusion in

Johnson II renders that case inapplicable to the risk

‐ of

‐ force clause at issue here.

Section 924(c)(3)(B) does not involve the double

‐ layered uncertainty present in

Johnson II

. Granted, courts construing the provision must grapple with

assessing the risk of physical force posed by the “ordinary” instance of a

predicate crime. Assessing whether a felony, by its nature, poses a substantial

risk that “physical force against the person or property of another may be used in

the course of committing the offense,” § 924(c)(3)(B), however, is a far narrower

and simpler undertaking than divining whether a felony, not being one of four

enumerated, but disparate crimes, “otherwise involves conduct that presents a

serious potential risk of physical injury to another,” § 924(e)(2)(B)(ii). A26 straightforward comparison of the texts of the two provisions

— analyzed in light

of the reasoning in Johnson II and other case law

— makes clear that Hill is

mistaken in suggesting that the provisions are materially indistinguishable.

First, and most obviously, the risk

‐ of

‐ force clause contains no mystifying

list of offenses and no indeterminate “otherwise” phraseology

— a defining

feature of the ACCA’s residual clause that, in Johnson II

, was understood to add

an additional layer of uncertainty as to “how much risk it takes for a crime to

qualify as a violent felony.” 135 S. Ct. at 2558. In Johnson II

, the Court cited

this list as a key aspect of § 924(e)(2)(B)(ii), distinguishing the ACCA’s residual

clause from other laws that the Government warned could be vulnerable to

vagueness challenge. Indeed, the Court rejected the Government’s argument

that its decision in Johnson II would draw into question statutes that, like the one

here, do not “link[ ] a phrase such as ‘substantial risk’ to a confusing list of

examples.” Id. at 2561. Moreover, an analysis of the Court’s pre

‐ Johnson II

precedents attempting to construe the residual clause makes clear that the

presence of these enumerated offenses was, as Johnson II suggested, the prime

cause of uncertainty in that provision, and the key obstacle to consistent judicial27 construction. 15 As the Court recognized in Begay

, the enumerated offenses are

“far from clear in respect to the degree of risk each poses.” 553 U.S. at 143. The

15 In these earlier cases, the Court consistently relied on the list of offenses as its

primary tool of construction through which to determine which predicate crimes

constituted violent felonies. See, e.g.

, Sykes v. United States

, 564 U.S. 1, 15

‐ 16 (2011)

(observing that “[t]he residual clause imposes enhanced punishment for unlawful

possession of [a] firearm when the relevant prior offenses involved a potential risk of

physical injury similar to that presented by burglary, extortion, arson, and crimes

involving use of explosives,” though noting that “this approach may at times be more

difficult for courts to implement”); Begay

, 553 U.S. at 143 (holding that “the examples in

[the residual clause] limit the scope of the clause to crimes that are similar to the

examples themselves”); James v. United States

, 550 U.S. 192, 218 n.1 (2007) (Scalia, J.,

dissenting) (referring to the list of enumerated offenses as providing “the defining

characteristic of the residual provision”). Nevertheless, although the Justices seemed

largely to agree that the enumerated list was dispositive of the required analysis, they

consistently diverged on how Congress intended the list itself to be employed.

Compare, e.g.

, Begay

, 553 U.S. at 143 (holding that courts “should read the examples as

limiting the crimes that [the residual clause] covers to crimes that are roughly similar, in

kind as well as in degree of risk posed, to the examples themselves”), with id. at 149

(Scalia, J., concurring in the judgment) (arguing instead that the Court should

“determine which of the enumerated offenses poses the least serious risk of physical

injury, and then

. . . set that level of risk as the ‘serious potential risk’ required by the

statute”); and id. at 158

‐ 59 (Alito, J., dissenting) (disagreeing with the majority’s view

that predicate crimes must be similar not only in degree of risk, but also in kind, to the

enumerated offenses). The Justices also consistently disagreed on what unified the

four enumerated offenses for purposes of defining the requisite level of risk. Compare,

e.g.

, Begay

, 553 U.S. at 144

‐ 45 (majority opinion) (arguing that the four enumerated

crimes “all

. . . involve[d] purposeful, ‘violent,’ and ‘aggressive’ conduct” and relying

on this characteristic to exclude a DUI conviction), with Sykes

, 564 U.S. at 13 (noting that

the “phrase ‘purposeful, violent, and aggressive’ has no precise textual link to the

residual clause,” and that, most of the time, “risk levels provide a categorical and

manageable standard”); and id. at 36 n.1 (Kagan, J., dissenting) (“I understand the

majority to retain the ‘purposeful, violent, and aggressive’ test, but to conclude that it is

‘redundant’ in this case.”); compare, e.g.

, James

, 550 U.S. at 199 (“[T]he most relevant

common attribute of the enumerated offenses of burglary, arson, extortion, and28 Court reaffirmed this point in Johnson II

, noting the absence of apparent

commonalties among the enumerated offenses, and the confusion thereby

generated in construing the residual provision. See 135 S. Ct. at 2557

‐ 60. In

short, as Johnson II itself attests, it is evident that the Court’s “repeated failures to

craft a principled and objective standard out of the residual clause” were failures

in large part because of the list of enumerated offenses. 135 S. Ct. at 2558. 16

Moreover, even if the list of enumerated offenses is not alone sufficient to

distinguish the residual clause in Johnson II from the risk

‐ of

‐ force clause at issue

here (a conclusion which would ignore the Court’s fraught history with the

residual clause), the text of the risk

‐ of

‐ force clause differs in additional, material

ways. The ACCA’s residual clause defines crimes as violent felonies if they,

explosives use is

. . . that all of these offenses

. . . create significant risks of bodily injury

or confrontation that might result in bodily injury.”), with id. at 218 n.1 (Scalia, J.,

dissenting) (criticizing the majority for “imprecisely identif[ying] the common

characteristic of the enumerated offenses,” and arguing that “the word

‘confrontation’

. . . is an invention entirely divorced from the statutory text”).

16 Indeed, absent such a confounding list of inconsistent enumerated offenses,

the Court has had little trouble interpreting language in 18 U.S.C. § 16(b) that is the

same as that in the risk

‐ of

‐ force clause at issue here. See Leocal v. Ashcroft

, 543 U.S. 1, 11

(2004) (observing, in a unanimous decision, that “[t]he ordinary meaning of [‘crime of

violence’], combined with § 16’s emphasis on the use of physical force against another

person (or the risk of having to use such force in committing a crime), suggests a

category of violent, active crimes that cannot be said naturally to include DUI

offenses”).29 inter alia

, “present[] a serious potential risk of physical injury to another.”

18 U.S.C. § 924(e)(2)(B)(ii). This terminology is materially different from that in

the risk

‐ of

‐ force clause, which defines predicate crimes as those that by their

“nature[] involve[] 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). Both the Supreme Court and this Court have noted that the

language in the latter provision is both narrower and easier to construe. See

Leocal v. Ashcroft

, 543 U.S. 1, 10 (2004) (holding that “[t]he reckless disregard in §

16 [employing the language of § 924(c)(3)(B)] relates not to the general conduct or

to the possibility that harm will result from a person’s conduct, but to the risk

that the use of physical force against another might be required in committing a

crime”); id. at 10 n.7 (noting that “§ 16(b) plainly does not encompass all offenses

which create a ‘substantial risk’ that injury will result from a person’s conduct”

(emphasis added)); Jobson

, 326 F.3d at 372

‐ 73 (“[T]he risk that a defendant will

use physical force in the commission of an offense is materially different from the

risk that an offense will result in physical injury.”); id. at 373 n.5 (observing that

the “risk of physical injury” language “was intended to be broader” than the

language in the risk

‐ of

‐ force clause). Indeed, in interpreting the language in30 § 16(b), which is materially indistinguishable from the provision at issue here, we

have had little trouble narrowing, and construing, its scope. See, e.g.

, id. at 374

(“[S]ection 16(b) requires that an offense inherently poses a substantial risk that a

defendant will [intentionally] use physical force

. . . .”). As one of our sister

circuits recently observed, even apart from the enumerated offenses, the

language of the risk

‐ of

‐ force clause “is distinctly narrower” than that in the

residual clause, and in a manner that makes it easier to construe. United States

v. Taylor

, 814 F.3d 340, 375

‐ 76 (6th Cir. 2016) (rejecting the argument that

Johnson II “compels the conclusion” that the risk

‐ of

‐ force clause is void for

vagueness).

It is unsurprising, then, that the risk

‐ of

‐ force clause has no history of

“repeated attempts and repeated failures” on the part of courts “to craft a

principled and objective standard” out of its terms

— the sort of doctrinal history

that Johnson II recognized was sufficient to “confirm [the] hopeless

indeterminacy” of the residual clause. 135 S. Ct. at 2558. The Court explained

in Johnson II that “the failure of ‘persistent efforts

. . . to establish a standard’ can

provide evidence of vagueness.” Id. (alteration in original) (quoting United

States v. L. Cohen Grocery Co.

, 255 U.S. 81, 91 (1921))

. But there is no such31 troubled interpretive history with respect to the risk

‐ of

‐ force clause. As the

Sixth Circuit recently recognized, while “the Supreme Court reached its

void

‐ for

‐ vagueness conclusion only after struggling mightily for nine years to

come up with a coherent interpretation of the [residual] clause,

. . . no such

history has occurred with respect to § 924(c)(3)(B).” Taylor

, 814 F.3d at 376.

This, too, counts against Hill’s position.

Hill argues that Johnson II also relied in part on the fact that the ACCA’s

residual clause, like the risk

‐ of

‐ force clause, requires application of the

categorical approach, with its attendant difficulties in determining the

parameters of the “ordinary case” of a predicate crime. This is true. But we

conclude that this fact alone is not nearly enough to render the risk

‐ of

‐ force

clause void for vagueness. As the Sixth Circuit recognized in Taylor

, the

Supreme Court in Johnson II did not conclude that statutes requiring such an

approach are thereby rendered unconstitutionally vague. 814 F.3d at 378. 17 To

17 Hill argues that Taylor is distinguishable in that it relied on the fact that the

Sixth Circuit does not use a categorical approach “in many § 924(c) cases” in upholding

the risk

‐ of

‐ force clause. Hill’s July 28 Response to Gov’t’s 28(j) Letter at 2 n.1, United

States v. Hill

, No. 14

‐ 3872 (2d Cir. Aug. 2, 2016), ECF No. 112 (citing Shuti v. Lynch

,

__ F.3d

__, 2016 WL 3632539, at *8 (6th Cir. July 7, 2016)). The panel in Taylor explicitly

disclaimed any such reading of its opinion. See Taylor

, 814 F.3d at 378 (noting that “[i]t

is true that Johnson [ II ] also relied in part on the fact that the ACCA residual clause, like32 the contrary, the Court took pains to note that it was a combination of factors that

together rendered the residual clause invalid: “Each of the uncertainties in the

residual clause may be tolerable in isolation, but ‘their sum makes a task for us

which at best could be only guesswork.’” Johnson II

, 135 S. Ct. at 2560 (quoting

Evans

, 333 U.S. at 495). No such factors conspire to suggest that § 924(c)(3)(B) is

constitutionally infirm.

We note that four other circuits

— the Fifth, Sixth, Seventh, and Ninth

—

have considered the language in 18 U.S.C. § 16(b), which appears materially the

same as that in § 924(c)(3)(B), and have determined that § 16(b) is void for

vagueness after Johnson

. Shuti v. Lynch

,

__ F.3d

__, 2016 WL 3632539 (6th Cir.

July 7, 2016); United States v. Gonzalez

‐ Longoria

, 813 F.3d 225, 227 (5th Cir. 2016),

en banc rehearing granted

, 815 F.3d 189 (5th Cir. 2016) (mem.); United States v.

Vivas

‐ Ceja

, 808 F.3d 719, 723 (7th Cir. 2015); Dimaya v. Lynch

, 803 F.3d 1110, 1120

(9th Cir. 2015). Although we generally interpret § 16(b) and § 924(c) by

§ 924(c)(3)(B)

, requires the application of a categorical approach, which requires courts

to look at the ordinary case of the predicate crime” before concluding that this similarity

was insufficient to render the risk

‐ of

‐ force clause unconstitutionally vague (emphasis

added)); accord id. at 394 (White, J., concurring in part and dissenting in part) (stating

that the Sixth Circuit applies the categorical approach to the risk

‐ of

‐ force clause).33 applying the same case law, see Acosta

, 470 F.3d at 134

‐ 35, we find these opinions

unpersuasive for three reasons.

First, each greatly underestimates

— or misunderstands

— the significance

of the list of enumerated offenses in the ACCA’s residual clause to the decision in

Johnson II

, in part by failing to engage with the precedent that preceded, and

informed, that decision. 18 Second, these cases either ignore or minimize the

other textual distinctions between the residual clause and the language of

§ 16(b). 19 Finally, each case dismisses the significance of the Supreme Court’s

18 See Shuti

, 2016 WL 3632539, at *7; Gonzalez

‐ Longoria

, 813 F.3d at 232

‐ 34 (though

acknowledging that § 16(b) is “arguably at least slightly less imprecise” than the

language in the ACCA’s residual clause, suggesting that “[a]rguably, having no

examples is worse than having unclear examples”); Vivas

‐ Ceja

, 808 F.3d at 723 (observing

that “the enumeration of specific crimes

. . . wasn’t one of the ‘two features’ that

combined to make the [residual] clause unconstitutionally vague,” and thus

misunderstanding that the list was a primary impetus for the second feature,

“indeterminacy about how much risk it takes for the crime to qualify as a violent

felony,” Johnson II

, 135 S. Ct. at 2558); Dimaya

, 803 F.3d at 1118 & n.13 (first minimizing

the significance of the enumerated offenses to Johnson II ’s analysis, and then noting that

“[a]lthough Johnson [ II ] concluded that the enumerated offenses added to the residual

clause ʹ s indeterminacy, it could well be argued that, if anything, § 16(b) is more vague

than the residual clause because of its lack of enumerated examples”).

19 See Shuti

, 2016 WL 3632539, at *7; Gonzalez

‐ Longoria

, 813 F.3d at 232

(acknowledging the textual differences, but arguing that they are “slight”); Vivas

‐ Ceja

,

808 F.3d at 722 (noting that the “language [in § 16(b)], though not identical to the

residual clause, is materially the same”); Dimaya

, 803 F.3d at 1114

‐ 18 (referring to the

two textual provisions as “similar,” providing no analysis of the distinction between the

phrases “risk of physical injury” and “risk that physical force

. . . may be used,” and34 fraught precedent interpreting the ACCA’s residual clause, and in doing so not

only disregards the significance of that precedent to the Johnson II decision, see

135 S. Ct. at 2558

‐ 61 (discussing these prior cases), but also fails to grapple with

the fact that the textual aspects unique to the residual clause were largely to

blame for that confusion. See Shuti

, 2016 WL 3632539, at *8; Gonzalez

‐ Longoria

,

813 F.3d at 234; Vivas

‐ Ceja

, 808 F.3d at 723; Dimaya

, 803 F.3d at 1119.

For these reasons, we do not find these § 16(b) cases persuasive, and we

decline to follow their reasoning here. Indeed, we conclude that to do so would

not apply Johnson II

, but would extend it in a way flatly inconsistent with that

decision’s own articulation of the limitations of its holding. See 135 S. Ct. at

2561. Having considered each of Hill’s arguments that the risk

‐ of

‐ force clause is

unconstitutionally vague, we are unpersuaded.

CONCLUSION

For the foregoing reasons, and for those stated in the summary order that

accompanies this decision, we AFFIRM the judgment of conviction.

suggesting that any distinction created by the presence of the words “in the course of

committing the offense” in § 16(b) “would not save [that provision] from

unconstitutionality”).