PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4640 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSEPH DECORE SIMMS, Defendant - Appellant. ------------------------------------------ FOURTH CIRCUIT FEDERAL DEFENDER OFFICES, Amicus Supporting Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Terrence W. Boyle, Chief District Judge. (4:15-cr-00010-BO-1) Argued: September 26, 2018 Decided: January 24, 2019 Before GREGORY, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, KING, DUNCAN, AGEE, KEENAN, WYNN, DIAZ, FLOYD, THACKER, HARRIS, RICHARDSON, and QUATTLEBAUM, Circuit Judges. Reversed and remanded by published opinion. Judge Motz wrote the opinion, in which Chief Judge Gregory and Judges King, Wynn, Diaz, Floyd, Thacker, and Harris joined. Judge Wynn wrote a concurring opinion, in which Judge Harris joined. Judge Wilkinson wrote a dissenting opinion. Judge Niemeyer wrote a dissenting opinion, in which Judges Wilkinson, Duncan, Agee, Keenan, and Quattlebaum joined. Judge Richardson wrote a dissenting opinion, in which Judge Quattlebaum joined. ARGUED: Dhamian Blue, BLUE LLP, Raleigh, North Carolina, for Appellant. Phillip Anthony Rubin, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Amici Curiae. ON BRIEF: Brian A. Benczkowski, Assistant Attorney General, Matthew S. Miner, Deputy Assistant Attorney General, John P. Taddei, Appellate Section, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; John Stuart Bruce, Acting United States Attorney, Robert J. Higdon, Jr., United States Attorney, Jennifer P. May- Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Anthony Martinez, Federal Public Defender, FEDERAL PUBLIC DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina; Parks N. Small, Federal Public Defender, Columbia, South Carolina; Louis C. Allen, Federal Public Defender, Greensboro, North Carolina; Fred Heblich, Interim Federal Public Defender, Roanoke, Virginia; Christian M. Capece, Federal Public Defender, Charleston, West Virginia; James Wyda, Federal Public Defender, Baltimore, Maryland; Paresh S. Patel, Assistant Federal Public Defender, Greenbelt, Maryland; G. Alan DuBois, Federal Public Defender, Raleigh, North Carolina; Geremy Kamens, Federal Public Defender, Alexandria, Virginia; Brian J. Kornbrath, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Clarksburg, West Virginia, for Amici Curiae. 2 DIANA GRIBBON MOTZ, Circuit Judge: Joseph Decore Simms was convicted of brandishing a firearm in connection with a “crime of violence,” as defined in 18 U.S.C. § 924(c)(3)(B). He appeals, contending that § 924(c)(3)(B), as long understood, is unconstitutionally vague. The Government concedes this point but urges us to abandon the settled meaning of the statute and employ a new definition of “crime of violence.” We cannot do so. Neither the statutory language nor controlling precedent offer any support for the Government’s proposed reinterpretation. Rather, the text and structure of § 924(c)(3)(B) plainly set forth a definition of “crime of violence” that fails to comport with due process. Accordingly, we reverse and remand for further proceedings consistent with this opinion. I. This case arises from an April 2014 conspiracy to rob a McDonald’s in Goldsboro, North Carolina. Shortly ...
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