United States Court of Appeals 

For the First Circuit 

No. 18-1129 

UNITED STATES, 

Appellee, 

v. 

ISHMAEL DOUGLAS, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MAINE 

[Hon. Jon D. Levy, U.S. District Judge] 

Before 

Lynch, Stahl, and Thompson, 

Circuit Judges. 

J. Hilary Billings on brief for appellant. 

Benjamin M. Block, Assistant United States Attorney, and 

Halsey B. Frank, United States Attorney, on brief for appellee. 

October 12, 2018 
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LYNCH, Circuit Judge. This 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. § 924(c)(3)(b). 

Ishmael 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. 

After 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 
- 3 - 

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. 

I. Background 

A. Facts 

 We describe the background facts of the underlying 

offense, accepted by both parties,1 because they are relevant to a 

case-specific, real-world analysis of a "crime of violence" under 

§ 924(c)(3)(b). 

In 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 2.2 The conspirators 

targeted the house of a person they believed to be engaged in 

 1 With one exception, discussed in footnote 2, Douglas 

accepted the prosecution version of the facts in his brief. He 

did not object to the facts in the revised Presentence Report. 

2 At his change of plea hearing, Douglas told the district 

court that he joined the conspiracy as the group was driving to 

Minot on August 2, rather than the day before as the prosecution 

claimed. However, mirroring the prosecution's assertion, 

Douglas's own brief for this court states that he joined the 

conspiracy on August 1. In any event, the precise date is not 

relevant to our analysis, because it is settled that Douglas joined 

the conspiracy before the armed robbery.
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illegal drug trafficking, in order to steal Percocet (oxycodone) 

pills and proceeds from the drug trafficking. 

 On 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.

 The conspirators found three men inside the house, whom 

they tried to secure by placing zip ties around the men's hands.3 

But the zip ties were not large enough for the task. 

Lara 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.

 3 The government refers to all victims here as male 

regardless of gender, and we will do the same.
- 5 - 

 Douglas 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.

After 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 house.

 The 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. 
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Later, pursuant to a warrant, the police searched a storage unit 

used by the conspirators and found the two guns brandished in the 

robbery. 

B. Procedural History 

On 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). 

 Douglas 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). 

The 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"4 at § 924(c)(3)(A), the 

 4 Some courts instead refer to this clause as the "elements 

clause." See, e.g., United States v. Armour, 840 F.3d 904, 907 

(7th Cir. 2016). 
- 7 - 

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,5 is void for 

vagueness in light of Johnson. Id. 

Douglas 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.

The 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.

II. Discussion 

We 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 

 5 Some courts instead refer to this clause as the "riskof-force clause." See, e.g., United States v. St. Hubert, 883 

F.3d 1319, 1320 (11th Cir. 2018). 
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§ 924(c)(3)(B) allows for a case-specific rather than a 

categorical approach, by not asserting it in the district court.6 

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.7 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. 

 We 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, 

 6 As discussed later, a categorical or modified 

categorical approach considers an "idealized ordinary case" of the 

crime charged; a case-specific approach considers a defendant's 

"real-world conduct." Johnson, 135 S. Ct. at 2557-58. 

7 The government explicitly "does not adopt the district 

court’s holding that conspiracy to commit Hobbs Act robbery 

constitutes a crime of violence under the force clause . . . . 

[T]he Department of Justice's position is that a conspiracy offense 

does not have 'as an element the use, attempted use, or threatened 

use of physical force against the person or property of another.'"
- 9 - 

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). 

A. Concession and Waiver 

We turn 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 casespecific, 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 yetto-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 
- 10 - 

legal landscape -- leads us to conclude that we should review the 

substantive issue. 

The law 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. 

United States v. Mescual-Cruz, 387 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 lead 

us to this same conclusion. 

 First, this is a recurring issue. Section 924(c)(3)(B) 

has come up numerous times in district courts in this circuit, and 

in several cases in the past few months alone.8 A determination 

 8 At least three district court cases in this circuit have 

considered § 924(c)(3)(B) in light of the Supreme Court's decision 

in Dimaya. See LiCausi v. United States, No. 16-CV-279-JD, 2018 

WL 4054905, at *3 (D.N.H. Aug. 23, 2018) (holding that 
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on the substantive issues in this appeal would provide guidance to 

district courts in this unsettled area of law. Second, it would 

be "unseemly" to hold the government to its earlier position when 

an intervening Supreme Court case, Dimaya, substantially changed 

this area of law. Third, the proper approach to the residual 

clause at § 924(c)(3)(B) is a technical issue that has arisen in 

current form only after Dimaya, and merits our serious evaluation. 

In the interests of completeness, we also address, and 

reject, Douglas's waiver argument. Waiver raises similar 

considerations as concession. Waiver is usually "treated as an 

'intentional,' and therefore permanent, abandonment of a 

position." Torres-Rosario, 658 F.3d at 115.9

 

"§ 924(c)(3)(B) is unconstitutionally vague"); United States v. 

Rossetti, No. CR 99-10098-RGS, 2018 WL 3748161, at *3 (D. Mass. 

Aug. 7, 2018) (same); Soto-Cosme v. United States, 320 F. Supp. 3d 

350, 353 (D.P.R. 2018) (noting, but avoiding, the "void-forvagueness" challenge). 

9 Waiver doctrine can be applied against any party: "in 

fairness, what is sauce for the defendant's goose is sauce for the 

government's gander." United States v. Caraballo-Cruz, 52 F.3d 

390, 393 (1st Cir. 1995). Waiver doctrine, therefore, "has been 

applied against the government in criminal cases, where 

appropriate." United States v. Carrasco-De-Jesus, 589 F.3d 22, 26 

(1st Cir. 2009). Though we are under no obligation "to do the 

government's homework," United States v. Vega Molina, 407 F.3d 

511, 524 (1st Cir. 2005), "we have discretion to overlook waiver 

by the government in a criminal case when circumstances justify us 

in doing so." Carrasco-De-Jesus, 589 F.3d at 26 n.1; see generally 

Torres-Rosario, 658 F.3d at 116; United States v. Moran, 393 F.3d 

1, 11 (1st Cir. 2004). 
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We do not think there was an intentional abandonment by 

the government, and so there was no waiver.10 Regardless, we would 

in any event choose to reach the issues, and we do not "religiously 

hold[] waiver against the Government" when fairness dictates 

otherwise. Dimott v. United States, 881 F.3d 232, 239 (1st Cir. 

2018) (quotation marks omitted). There is no unfairness in 

reaching the merits argument but there would be in not reaching 

it. This is not a case where the government seeks the proverbial 

second bite at the apple due to lack of due diligence or "any 

gamesmanship before the district court." Id. Nor is it one where 

"a prosecutor attempts to rely on fleeting references to 

unsubstantiated conclusions." Caraballo-Cruz, 52 F.3d at 393. 

The government has been forthright about its changed position and 

the reasons underlying this change. 

Our view is consistent with that of several of our sister 

circuits. The Second Circuit recently considered the government's 

changed position regarding a case-specific, real-world approach, 

and held that the residual clause allowed for this approach. 

 10 Further, Douglas has likely waived his own argument on 

the issue of the government's waiver, by not mentioning this 

somewhere in his primary brief but only in his reply brief. 

"[A]rguments developed for the first time in a reply brief are 

waived." Small Justice LLC v. Xcentric Ventures LLC, 873 F.3d 

313, 323 n.11 (1st Cir. 2017); accord Transupport, Inc. v. Comm'r 

of Internal Revenue, 882 F.3d 274, 281 n.4 (1st Cir. 2018); Irving 

Tanning Co. v. Kaplan, 876 F.3d 384, 392 n.7 (1st Cir. 2017). 
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Barrett, 903 F.3d at 184.11 The Eleventh Circuit, en banc, also 

considered the government's new position and held that 

"§ 924(c)(3)(B) prescribes a conduct-based approach, pursuant to 

which the crime-of-violence determination should be made by 

reference to the actual facts and circumstances underlying a 

defendant’s offense." Ovalles, No. 17-10172, 2018 WL 4830079, at 

*2. And the D.C. Circuit and Fifth Circuit both indicated that 

only circuit precedent vitiated the need for consideration of the 

government's argument on a case-specific, real-world approach. 

United States v. Eshetu, 898 F.3d 36, 37 (D.C. Cir. 2018) (per 

curiam) ("Whatever the clean-slate merits of the government's 

construction, we as a panel are not at liberty to adopt [a casespecific approach]: circuit precedent demands a categorical 

approach . . . ."); United States v. Davis, 903 F.3d 483, 485 (5th 

Cir. 2018) ("[T]he Government argues we can, and should, adopt a 

new 'case specific' method when applying the residual clause 

. . . . Regardless of whether Dimaya would otherwise permit us to 

do so, we do not find a suggestion by a minority of justices in 

that case sufficient to overrule our prior precedent."). 

 11 The government's supplemental brief in Barrett made 

similar arguments to the government's brief here, as did the 

government's en banc brief in Ovalles. 
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B. The Merits of a Case-Specific Approach versus a Categorical 

Approach to § 924(c)(3)(B) 

Douglas asserts that the residual clause at 

§ 924(c)(3)(B) is void for vagueness under the reasoning of Johnson 

and Dimaya. In relevant part, this clause reads: 

(3) For purposes of this subsection the term 

"crime of violence" means an offense that 

is a felony and— . . . 

(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)(B). 

After laying out pertinent Supreme Court precedent, we 

consider the text of § 924(c)(3)(B). We find that the text of 

§ 924(c)(3)(B) can and should be reasonably construed as allowing 

a case-specific approach. We next consider the statute's context. 

Because § 924(c)(3)(B) requires consideration of a contemporaneous 

offense rather than a prior conviction, this residual clause does 

not raise either the practical or the Sixth Amendment right-totrial concerns that led the Supreme Court to adopt the categorical 

approach in Taylor v. United States, 495 U.S. 575 (1990). See 

also Descamps v. United States, 570 U.S. 254 (2013); James v. 

United States, 550 U.S. 192 (2007). We then consider 

constitutional avoidance, because, if we were to apply a 

categorical approach, there could be vagueness problems. 
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Unlike some other circuits, our circuit has not held 

definitively that either the categorical or the case-specific 

approach applies to the residual clause at § 924(c)(3)(B).12 And 

so we have no binding precedent. In Turner, we held without direct 

reference to a categorical or case-specific approach that 

conspiracy to commit a Hobbs Act robbery was a crime of violence 

under § 924(c)(3)(B). Turner, 501 F.3d at 67. The law of the 

circuit rule -- under which "we are bound by a prior panel 

decision, absent any intervening authority," United States v. 

Grupee, 682 F.3d 143, 149 (1st Cir. 2012) -- does not bind us 

here.13 See San Juan Cable LLC v. Puerto Rico Tel. Co., 612 F.3d 

25, 33 (1st Cir. 2010); United States v. Malouf, 466 F.3d 21, 26-

27 (1st Cir. 2006). 

i. Supreme Court Precedent 

The Supreme Court first required that the "categorical 

approach" be used to make a determination about a prior state 

 12 By contrast, we have held in several cases that a 

categorical approach properly applies to the force clause at 

§ 924(c)(3)(A). United States v. Cruz-Rivera, No. 16-1321, 2018 

WL 4378173, at *1 (1st Cir. Sept. 14, 2018); United States v. 

Taylor, 848 F.3d 476, 491 (1st Cir. 2017). 

13 It is true that some district courts in our circuit have 

held, or assumed, that the categorical approach applies. See, 

e.g., Rossetti, No. CR 99-10098-RGS, 2018 WL 3748161, at *2 ("The 

government’s position until recently has been that § 924(c)(3)(B) 

requires a categorical approach — a conclusion that . . . the First 

Circuit has never definitively held but that the lower district 

courts had regularly assumed to be the case."). But of course, 

such decisions are not precedent for this court. 
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conviction in Taylor, 495 U.S. at 602, which turned on the proper 

understanding of the definition of burglary in the Armed Career 

Criminal Act (ACCA), in a portion of the statute used to enhance 

sentences for prior offenses.14 The Court concluded that ACCA 

referred to "burglary" in a general sense and therefore required 

a trial court "to look only to the fact of conviction and the 

statutory definition of the prior offense." Id. In justifying 

this, the Court especially worried about the "practical 

difficulties" of a case-specific analysis for prior convictions. 

It also was concerned with possibly "abridging [the Sixth 

Amendment] right to a jury trial." Id. at 601. The Court extended 

the categorical approach to the residual clause of ACCA in James, 

and significantly added the "ordinary case" component to the 

categorical analysis. 550 U.S. at 208 ("[T]he proper inquiry is 

whether the conduct encompassed by the elements of the offense, in 

 14 The definition at issue in the case was this: 

(B) the term "violent felony" means any 

crime punishable by imprisonment 

for a term exceeding one year ... 

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. 

18 U.S.C. § 924(e)(2)(B). 
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the ordinary case, presents a serious potential risk of injury to 

another."). 

In Johnson, which overruled James, the Supreme Court 

held that the definition of "violent felony" in the residual clause 

of ACCA was unconstitutionally vague. 135 S. Ct. at 2555-57. 

ACCA's residual clause defined a violent felony, in part, as a 

felony that "involves conduct that presents a serious potential 

risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). 

The Court held that "[t]wo features of the residual 

clause conspire[d] to make it unconstitutionally vague." Johnson, 

135 S. Ct. at 2557. First, "the residual clause leaves grave 

uncertainty about how to estimate the risk posed by a crime," 

because the categorical approach "ties the judicial assessment of 

risk to a judicially imagined 'ordinary case' of a crime, not to 

real-world facts or statutory elements." Id. The Court noted 

"how speculative (and how detached from statutory elements)" 

considering an "idealized ordinary case of a crime" can become. 

Id. at 2557-58. Second, "the residual clause leaves uncertainty 

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

felony." Id. at 2558. And "[b]y 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, the residual clause produces more unpredictability and 

arbitrariness than the Due Process Clause tolerates." Id. 
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In Dimaya, an alien challenged a deportation order based 

on a state conviction for first-degree burglary, which immigration 

officials found was a "crime of violence" under the federal 

criminal code's residual clause at 18 U.S.C. § 16(b), explicitly 

incorporated by Congress into the Immigration and Nationality Act. 

8 U.S.C. § 1101(a)(43)(F). In relevant part, this residual clause 

defined "crime of violence" using the same language as 

§ 924(c)(3)(B): a "crime of violence" is a felony "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. § 16(b). The government had 

conceded that the categorical approach applied. Dimaya, 138 S. 

Ct. 1204, 1217 (2018). 

The Supreme Court determined that the "straightforward 

application" of Johnson dictated the result in Dimaya. Id. at 

1213. The same two features -- an "ordinary case" analysis and 

uncertainty about the sufficient degree of risk -- combined in 

"the same constitutionally problematic way" to make the residual 

clause impermissibly vague. Id. 

The Supreme Court majority in Dimaya also referenced the 

Sixth Amendment right-to-trial concerns that led to the initial 

adoption of the categorical approach in Taylor. See Dimaya, 138 

S. Ct. at 1217 (noting that the Supreme Court required a 

categorical approach "in part to avoid . . . Sixth Amendment 
- 19 - 

concerns" (quotation marks and citation omitted)). In dissent, 

Justice Thomas, joined by Justices Kennedy and Alito, pointed out 

that the "categorical approach was never really about the best 

reading of the text." Id. at 1256 (Thomas, J., with Kennedy, 

Alito, JJ., dissenting). Justice Thomas suggested, instead, that 

the "Court adopted that approach to avoid a potential Sixth 

Amendment problem with sentencing judges conducting minitrials to 

determine a defendant's past conduct." Id. So all justices in 

Dimaya recognized that the categorical approach was adopted at 

least in part to avoid potential Sixth Amendment problems about 

how to characterize prior convictions.15

Importantly, in both Dimaya and Johnson, the Supreme 

Court dismissed the notion that uncertainty as to risk evaluation 

of what constitutes a crime of violence was a problem by itself: 

"[W]e do not doubt the constitutionality of laws that call for the 

application of a qualitative standard such as 'substantial risk' 

to real-world conduct; the law is full of instances where a man's 

 15 We are aware that the Supreme Court has granted 

certiorari, vacated judgment, and remanded for further 

consideration in light of Dimaya in several cases involving 

convictions under § 924(c)(3)(B). See United States v. Odum, 878 

F.3d 508 (6th Cir. 2017), cert. granted, judgment vacated sub nom. 

Frazier v. United States, No. 17-8381, 2018 WL 1640324 (U.S. Oct. 

9, 2018); Manners v. United States, No. 17-1171, 2017 WL 3613308 

(6th Cir. Aug. 22, 2017), cert. granted, judgment vacated, No. 17-

8035, 2018 WL 1278398 (U.S. Oct. 1, 2018); United States v. 

Jackson, 865 F.3d 946 (7th Cir. 2017), cert. granted, judgment 

vacated, 138 S. Ct. 1983 (May 14, 2018). This does not change our 

analysis here. 
- 20 - 

fate depends on his estimating rightly . . . some matter of 

degree[.]" Dimaya, 138 S. Ct. at 1214 (quoting Johnson, 135 S. 

Ct. at 2561) (brackets and ellipsis in original). 

ii. The Text of § 924(c)(3)(B) 

Douglas argues that § 924(c)(3)(B)'s text unambiguously 

requires a categorical, ordinary-case approach. We disagree, and 

find that statutory language allows for a case-specific approach. 

When determining the meaning of a statutory provision 

that is not defined in the statute, "we look first to its language, 

giving the words used their ordinary meaning." Moskal v. United 

States, 498 U.S. 103, 108 (1990) (quotation marks and citation 

omitted); see In re Hill, 562 F.3d 29, 32 (1st Cir. 2009) ("We 

assume that the words Congress chose, if not specially defined, 

carry their plain and ordinary meaning."). 

Douglas argues that the "by its nature" language 

requires a categorical approach. The word "nature" is not defined 

in the statute. In ordinary use, "nature" means a "normal and 

characteristic quality," Webster’s Third New International 

Dictionary 1507 (2002), or "the basic or inherent features, 

character, or qualities of something," Oxford Dictionary of 

English 1183 (3d ed. 2010). In the context of applying 

§ 924(c)(3)(B), this "something" clearly must refer to the 

predicate offense charged. But these straightforward dictionary 

definitions do not answer the key question here: whether the 
- 21 - 

offense whose "basic or inherent features, character, or 

qualities" are considered is the particular real-world conduct of 

the predicate offense charged or, instead, an "ordinary," 

idealized, or generic example of that same offense. See Barrett, 

903 F.3d at 182. As the Supreme Court has noted, "in ordinary 

speech words such as 'crime,' 'felony,' 'offense,' and the like 

sometimes refer to a generic crime . . . and sometimes refer to 

the specific acts in which an offender engaged on a specific 

occasion." Nijhawan v. Holder, 557 U.S. 29, 33–34 (2009); see 

Mathis v. United States, 136 S. Ct. 2243, 2252 (2016) (noting that 

language like "offense . . . committed" indicated Congress's intent 

that "judges . . . look into the facts of prior crimes"); United 

States v. Hayes, 555 U.S. 415, 426 (2009) (holding that a statute 

with the phrase "offense . . . committed by a current or former 

spouse" allowed for case-specific consideration). 

Furthermore, although Douglas does not raise this issue, 

the government also points out that the term "involves" in the 

residual clause is used in several provisions in the Comprehensive 

Crime Control Act of 1984 that require looking into a defendant's 

underlying conduct rather than a hypothetical or idealized 

offense. See, e.g., Pub. L. No. 98-473, § 4243, 98 Stat. 1837, 

2059 (Oct. 12, 1984) (changing the requisite burden of proof for 

the release of "a person found not guilty only by reason of 

insanity of an offense involving bodily injury to, or serious 
- 22 - 

damage to the property of, another person, or involving a 

substantial risk of such injury or damage" (emphasis added)); id. 

at § 502, 98 Stat. 2068 (setting sentences for drug offenses 

"involving" specific types and quantities of illegal drugs). 

"Involves," by itself, does not necessarily suggest either a 

categorical or a case-specific approach. As to § 924(c)(3)(B), it 

is plausible that "by its nature" refers to the real-world conduct 

of a particular offense, and that "involves" also refers to that 

same conduct. See Ovalles, 17-10172, 2018 WL 4830079, at *14 

("[W]e simply aren't convinced that the phrase 'by its nature' 

requires application of the categorical approach here.") 

Douglas asserts that this textual understanding is 

foreclosed by the Supreme Court's interpretation of the nearly 

identically worded provision in Dimaya, where the plurality 

required a categorical approach. In his reply brief, Douglas 

argues that Justice Gorsuch, in a concurrence, "acknowledged that 

the categorical approach was appropriately employed," so, 

according to Douglas, this approach is therefore required for 

§ 924(c)(3)(B). This is incorrect on both counts. 

A four-justice plurality suggested in Dimaya that the 

text of § 16(b) was "[b]est read" as "demand[ing] a categorical 

approach." 138 S. Ct. at 1217. Even assuming for the sake of 

argument that this statement applies to the distinct context of 
- 23 - 

§ 924(c)(3)(B),16 there was no holding by a majority of the court 

that a categorical approach was required by the text of this 

provision. And the Supreme Court has held in several cases that 

"[w]hen a fragmented Court decides a case and no single rationale 

explaining the result enjoys the assent of five justices, 'the 

holding of the Court may be viewed as that position taken by those 

Members who concurred in the judgment on the narrowest grounds.'" 

Marks v. United States, 430 U.S. 188, 193 (1977) (quoting Gregg v. 

Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion of Stewart, Powell, 

and Stevens, JJ)). 

Justice Gorsuch, who concurred and was the narrowest 

vote in the majority,

proceeded on the premise that the Immigration 

and Nationality Act, as it incorporates 

§ 16(b) of the criminal code, commands courts 

to determine the risk of violence attending 

the ordinary case of conviction for a 

particular crime . . . because no party before 

us has argued for a different way to read these 

statutes in combination; because our precedent 

seemingly requires this approach; and because 

the government itself has conceded 

(repeatedly) that the law compels it. 

 16 The plurality said nothing about § 924(c)(3)(B) in 

Dimaya. Nor do we assume that similar text across the United 

States code must always be interpreted in exactly the same way: 

context and commensurate congressional intent matter. There are 

clearly exceptions to any presumption that Congress uses the same 

term or language in precisely the same way across different 

statutes. As will be discussed, the general definition in § 16(b) 

is contextually distinct from § 924(c)(3)(B). 
- 24 - 

Dimaya, 138 S. Ct. at 1232 (Gorsuch, J., concurring in part and 

concurring in judgment). Justice Gorsuch then suggested a 

willingness to consider, "in another case," the textual question 

of whether "precedent and the proper reading of language" meant 

that the categorical approach, or another approach, must apply. 

Id. at 1233. While Justice Gorsuch accepted the government's 

concession in Dimaya and noted the lack of "adversarial testing" 

or briefing of an alternative approach in that case, id. at 1232, 

he did not determine that the text of § 16(b) required a 

categorical approach. And he certainly did not determine anything 

about the text of the contextually distinct § 924(c)(3)(B). 

 When the plurality dismissed the possible application of 

the case-specific approach to § 16(b), these justices had already 

stated that taking a case-specific approach would create "Sixth 

Amendment concerns." Id. at 1217 (quoting Descamps, 570 U.S. at 

267). But for § 924(c)(3)(B), Sixth Amendment concerns around the 

right to trial do not arise because a contemporaneous offense 

rather than a prior conviction is considered. Thus, when 

considering the text of § 16(b), the plurality opinion addressed 

a constitutional context distinct from this case. And as noted, 

the government had already conceded that the categorical approach 

applied. Douglas's textual argument is unavailing. 
- 25 - 

iii. The Context of § 924(c)(3)(B) 

We turn now to the context of § 924(c)(3)(B). As a 

preliminary matter, nothing from Congress suggests a preference 

for applying the categorical approach to § 924(c)(3)(B). Indeed, 

this residual clause, in exactly the same language as today, was 

in place before the Supreme Court applied the categorical approach 

for the first time in 1990. 18 U.S.C. § 924(e)(2012); Taylor, 495 

U.S. 575. Thus, Congress could not have demonstrated a preference 

for a judicial approach that did not yet exist when the statute 

was passed. Instead, the application of the categorical approach 

to aspects of federal recidivist criminal statutes is a judicial 

construct designed to avoid constitutional and practical concerns 

raised by particular context, rather than a choice dictated by 

Congress. 

The context of § 924(c)(3)(B) clearly distinguishes it 

from the textually similar provisions at issue in Dimaya and 

Johnson. The Supreme Court in Dimaya and Johnson dealt with 

statutes requiring judicial consideration of prior convictions in 

subsequent proceedings. In contrast, § 924(c)(3)(B) applies only 

to a predicate offense of a pending § 924(c)(1)(A) charge, meaning 

that the predicate offense and the § 924(c)(3)(B) enhancement are 

considered at the same time. The Supreme Court has not yet applied 

the categorical approach to a residual clause that "defines a 

predicate offense for a crime of pending prosecution," Barrett, 
- 26 - 

903 F.3d at 181, rather than to a residual clause that defines a 

qualifying predicate offense based on a prior conviction. 

This is a crucial distinction. At its core, the 

categorical approach is a thoughtful judicial construct designed 

for a particular context: the judicial consideration, under 

federal statutes, of prior convictions, often by different 

tribunals. As discussed, the Supreme Court fashioned and refined 

the categorical approach both for practical and constitutional 

reasons that are specific to the consideration of a prior 

conviction. See, e.g., Taylor, 495 U.S. at 601 (noting the 

"practical difficulties and potential unfairness of a factual 

approach" when considering a prior conviction). Despite Douglas's 

argument to the contrary, these reasons for the categorical 

approach do not exist in the distinct context of § 924(c)(3)(B). 

As to practical issues, the situation under 

§ 924(c)(3)(B) is different from one in which a court must consider 

prior convictions "adjudicated by different courts in proceedings 

that occurred long before the defendant's [present] sentencing." 

United States v. Robinson, 844 F.3d 137, 142 (3d Cir. 2016). For 

the prior conviction, the earlier court did not have to determine, 

in finding guilt, whether the offense constituted a crime of 

violence unless the particular statute happened to require it. In 

addition, a prior conviction could not only be from a different 

tribunal, but could be from many years ago. As an illustrative 
- 27 - 

example, in the Supreme Court's initial adoption of the categorical 

approach in Taylor, the underlying prior convictions had been 

adjudicated in state courts in Missouri in 1963 and 1971, whereas 

the defendant's guilty plea to the federal case was in 1988. 495 

U.S. at 578 & n.1. Such an inquiry clearly can be fraught with 

uncertainty, and may even involve some degree of implicit secondguessing of prior convictions by other tribunals. But this issue 

simply does not arise when considering a contemporaneous offense 

as in § 924(c)(3)(B). 

The application of § 924(c)(3)(B) to the real-world 

conduct described in a pending charge means that the facts 

concerning the relevant predicate crime (and whether that amounts 

to a crime of violence) will be in front of a jury, if a case goes 

to trial, or will be accepted by a defendant like Douglas in a 

plea agreement. See Ovalles, No. 17-10172, 2018 WL 4830079, at 

*14 (noting "[t]he 'utter impracticability' that Taylor, Johnson, 

and Dimaya identified . . . simply isn’t an issue" because "the 

crimes are typically (as here) charged in the same indictment, and 

if they are tried, they are considered by the same jury."); St. 

Hubert, 883 F.3d at 1335 (noting that in § 924(c) cases, there 

will be "a contemporaneous federal crime charged in the same 

indictment and . . . an already developed factual record"). 

Consideration of the facts underlying a pending charge steers clear 

of the Supreme Court's understandable concern about prior 
- 28 - 

convictions with the "impracticability of requiring a sentencing 

court to reconstruct, long after the original conviction, the 

conduct underlying that conviction." Johnson, 135 S. Ct. at 2562; 

see Dimaya, 138 S. Ct. at 1218. 

Douglas argues further that a case-specific approach 

would be unworkable and, in his words, lead to "absurd results." 

However, Douglas provides no evidence of such a problem. Courts 

around the country have succeeded at this task in the sentencing 

context. Numerous federal criminal laws, like § 924(c)(3)(B), 

"require gauging the riskiness of conduct in which an individual 

defendant engages on a particular occasion." Johnson, 135 S. Ct. 

at 2561; see Dimaya, 138 S. Ct. at 1215 ("[T]he point is not that 

such a non-numeric standard [like substantial risk] is alone 

problematic."). On the whole, it is at least as practical to allow 

a jury to parse carefully between crimes based on specific realworld conduct rather than, under a categorical approach, to force 

judges to be willfully blind to particular facts and thus to go 

"down the rabbit hole . . . to a realm where we must close our 

eyes as judges to what we know as men and women." United States 

v. Davis, 875 F.3d 592, 595 (11th Cir. 2017).

The Supreme Court has suggested that such a factspecific approach, "deal[ing] with the actual, not with an 

imaginary condition other than the facts," can create more 

predictability that less fact-bound inquires. Johnson, 135 S. Ct. 
- 29 - 

at 2561 (quoting Int'l Harvester Co. of Am. v. Kentucky, 234 U.S. 

216, 223 (1914)). Juries have the ability to evaluate and 

understand real-world conduct. And in § 924(c)(3)(B), there is no 

link of the "substantial risk" language to a "confusing list of 

examples," id., nor is there any other particularly confusing 

factor distinguishing § 924(c)(3)(B) from other laws that require 

juries to consider real-world conduct. 

Beyond these practical distinctions, the difference 

between evaluating a prior conviction and evaluating an alleged 

predicate crime charged contemporaneously in the same indictment 

is important with regard to the Sixth Amendment right-to-trial 

concerns that motivated the categorical approach. In Dimaya, a 

plurality suggested that taking a case-specific approach to § 16(b) 

would "merely ping-pong us from one constitutional issue to 

another," because the categorical approach was imposed in part to 

"avoid[] the Sixth Amendment concerns that would arise from 

sentencing courts' making findings of fact that properly belong to 

juries." Dimaya, 138 S. Ct. at 1217 (quoting Descamps, 570 U.S. 

at 267); see Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) 

(holding that "any fact that increases the penalty for a crime 

beyond the . . . statutory maximum must be submitted to a jury"). 

Here, because the residual clause at § 924(c)(3)(B) 

requires a consideration of a contemporaneous predicate offense 

rather than a past conviction, the finding of fact would be made 
- 30 - 

by a jury (or stipulated in a plea agreement), thus raising no 

Sixth Amendment problem. See Ovalles, No. 17-10172, 2018 WL 

4830079, at *15 (noting no Sixth Amendment issues when taking a 

conduct-specific approach to § 924(c)). A defendant like Douglas 

has the chance to contest the relevant facts either at trial or in 

plea negotiations. If for whatever reason a defendant cannot or 

will not accept the prosecution's version of the facts, either in 

whole in or part, he or she maintains the constitutional right to 

contest these facts at trial in front of a jury. By considering 

a contemporaneous offense, then, a "defendant suffers no prejudice 

because the court is not finding any new facts which are not of 

record in the case before it." Robinson, 844 F.3d at 143. Here, 

the district court had the relevant facts concerning all charges 

against Douglas, and Douglas had the right to contest them as he 

saw fit. 

iv. Constitutional Avoidance 

 If we were to take a categorical approach to 

§ 924(c)(3)(B), there could be constitutional problems of 

vagueness after Dimaya, given that this approach would layer the 

two features at issue in Johnson and Dimaya in the same problematic 

way. The principle of constitutional avoidance further supports 

our determination that a case-specific, real-world approach 

applies to § 924(c)(3)(B). 
- 31 - 

Constitutional avoidance is an "interpretive tool . . . 

counseling that ambiguous statutory language be construed to avoid 

serious constitutional doubts." F.C.C. v. Fox Television 

Stations, Inc., 556 U.S. 502, 516 (2009). Under this principle, 

the "elementary rule is that every reasonable construction must be 

resorted to, in order to save a statute from unconstitutionality." 

Skilling v. United States, 561 U.S. 358, 406 (2010) (quotation 

marks and emphasis omitted); see Jennings v. Rodriguez, 138 S. Ct. 

830, 836 (2018) ("[W]hen statutory language is susceptible of 

multiple interpretations, a court may shun an interpretation that 

raises serious constitutional doubts and instead may adopt an 

alternative that avoids those problems."). 

Importantly, a court must start its inquiry with normal 

analysis: the canon "comes into play only when, after the 

application of ordinary textual analysis, the statute is found to 

be susceptible of more than one construction." Clark v. Martinez, 

543 U.S. 371, 385 (2005); see United States v. Oakland Cannabis 

Buyers' Cooperative, 532 U.S. 483, 494 (2001) (holding that this 

canon "has no application in the absence of . . . ambiguity"). 

The chosen interpretation must be "plausible." Clark, 543 U.S. at 

381; see Jennings, 138 S. Ct. at 842 (holding that the Ninth 

Circuit "misapplied the [constitutional avoidance] canon . . . 

because its interpretations of the three provisions at issue here 

are implausible"). 
- 32 - 

As discussed, there is a clearly "plausible" 

interpretation here that does not raise potential vagueness 

problems: a case-specific approach, looking at a defendant's 

actual conduct in determining whether a "crime of violence" has 

been committed. Taking this approach avoids constitutional 

problems and, in turn, provides due respect to Congress, in 

presuming that Congress does not intend to craft unconstitutional 

laws. See Diop v. ICE/Homeland Sec., 656 F.3d 221, 231 (3d Cir. 

2011). 

 To be clear, we are not creating any new rule of 

constitutional law here. Nor are we saying that Dimaya compels 

the result in this case. Instead, we are simply noting that taking 

the categorical approach to this statute might create 

constitutional problems. Therefore, interpreting the provision in 

another plausible way after ordinary textual analysis obviates 

this issue. 

C. Douglas's Conspiracy as a "Crime of Violence" Under 

§ 924(c)(3)(B) 

Finally, we turn to whether Douglas's conspiracy -- when 

considering the "real-world conduct", Johnson, 135 S. Ct. at 2561 

-- qualifies as a crime of violence under § 924(c)(3)(B). We hold 

that it does. 

To be clear, we do not hold that all conspiracies to 

commit Hobbs Act robbery would constitute crimes of violence under 
- 33 - 

§ 924(c)(3)(B). When applying a case-specific, real-world 

approach, some such conspiracies would not qualify. In this, we 

differ from Barrett, which held, as an alternative to its adoption 

of the case-specific approach, that conspiracy to commit a Hobbs 

Act robbery is necessarily a crime of violence because "conspiracy 

to commit a crime of violence is itself a crime of violence." 903 

F.3d at 175. And the government says it disagrees with this 

alternative holding in Barrett. 

Here, the district court properly explained the elements 

of the § 924(c) charge to Douglas. See Fed. R. Crim. P. 11(b)(1)(G) 

(requiring the district court to determine that "the defendant 

understands . . . the nature of each charge to which the defendant 

is pleading").17 Douglas's conditional plea came after the 

district court's order, denying his motion to dismiss, expressly 

determined that his actions constituted a "crime of violence" under 

§ 924(c). Furthermore, the acts that Douglas admitted to in his 

guilty plea amply demonstrate that he committed a "crime of 

violence" as defined in the residual clause. 

This court has earlier said, without reference to 

whether a categorical or case-specific approach should be used, 

that "a Hobbs Act conspiracy is a 'crime of violence' for purposes 

 17 Even if there were error here, it would surely be 

harmless based on the facts that Douglas accepted in his plea 

agreement. 
- 34 - 

of Section 924(c)" under the residual clause. Turner, 501 F.3d at 

67.18 We are at this point unwilling to say that the question can 

be resolved as a matter of law. We think it properly must go to 

the jury for determination, if there is a trial. 

Douglas's conspiracy to commit a Hobbs Act robbery 

qualifies as a "crime of violence" because "by its nature, [it] 

involve[d] 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). Douglas joined 

the conspiracy knowing its goal. Three of the conspirators, 

including Douglas, used substantial violence in the course of the 

robbery. As discussed, during the robbery one or more of the 

conspirators: dragged a victim by the head through a hallway; 

brandished firearms; forced several victims around the house and 

 18 Accord United States v. Taylor, 176 F.3d 331, 338 (6th 

Cir. 1999) ("[A] conspiracy to commit a robbery that violates the 

Hobbs Act is necessarily a conspiracy that, by its nature, involves 

a substantial risk that physical force may be used against the 

person or property of another, and therefore is a crime of violence 

within the meaning of section 924(c)."); United States v. Phan, 

121 F.3d 149, 152–53 (4th Cir. 1997) (holding, among other things, 

that conspiracy to commit Hobbs Act robbery is a crime of violence 

under 924(c)); United States v. Elder, 88 F.3d 127, 129 (2d Cir. 

1996) ("[A] Hobbs Act conspiracy to commit robbery is by definition 

a conspiracy that involves a substantial risk that physical force 

may be used against the person or property of another."); United 

States v. Mendez, 992 F.2d 1488, 1492 (9th Cir. 1992) ("[W]here 

conspirators agree to use actual or threatened force, or violence 

to obtain personal property from another . . . the risk that 

physical force may be used in the course of the conspiracy is 

substantial within the meaning of § 924(c)(3)(B)." (quotation 

marks and citation omitted)). 
- 35 - 

outside with guns pressed against their heads, threatened to kill 

a victim multiple times; and beat all three victims with a crowbar, 

bloodying at least one. The conspirators committed this violence 

in furtherance of the conspiracy's goals, namely to steal oxycodone 

and proceeds of drug dealing. We do not determine the "substantial 

risk" of violence of a conspiracy by the conspiracy's outcome, and 

many conspiracies could pose a "substantial risk" of violence where 

little or no violence actually occurs, see Turner, 501 F.3d at 67; 

Phan, 121 F.3d at 152. 

III. Conclusion 

 For the foregoing reasons, we affirm the district 

court's denial of the motion to dismiss a portion of Count Six and 

affirm Douglas's conviction under § 924(c)(3)(B).