11th Circuit Judge Kevin Newsom. Photo: Alison Church

Nuts. Judicial charade. Mess. Those are not words judges typically use to describe their own work. But that’s what the U.S. Court of Appeals for Eleventh Circuit did in a 5-4 en banc split debating federal career criminal sentences for violent crime.

The 153-page package released Thursday includes a majority opinion from five judges, a concurring  opinion from the same judges explaining their reasoning and two dissents joined by the four judges in the minority — plus a call for help from Congress to rewrite the Armed Career Criminal Act of 1984.

The full court review hinged on whether it followed a conduct or categorical standard for assessing a violent felony and affirmed using the conduct standard. The original panel followed up Tuesday with an unsigned opinion affirming the sentence based on conduct.

The dissenting judges on a politically polarized court said the ruling will hurt many others.

“The question before us is whether one of the key provisions of an important federal criminal statute, 18 U.S.C. § 924(c), is unconstitutionally vague,” Judge Kevin Newsom wrote for the majority. The law “makes it a federal offense — punishable by a term of imprisonment ranging from five years to life — for any person to use, carry or possess a firearm in connection with a ‘crime of violence.’ ”

Irma Ovalles challenged the law’s residual clause, which defines the term “crime of violence” as 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.”

Ovalles was represented by W. Matthew Dodge of the Federal Public Defender’s Office in the Northern District of Georgia. He said he would file a cert petition in the U.S. Supreme Court.

The opinion ”will prove fatal to dozens, if not hundreds, of cases in our circuit. Meanwhile, the circuit courts across the country are deeply divided. The government has filed cert petitions in some of the cases it has lost, and many defendants have done the same. We will join the parade soon,” Dodge said.

Arguing for the government was Assistant U.S. Attorney Jane McBath, chief of the appeals and legal advice division in the North District. The office spokesman did not respond to a request for comment by deadline.

“In 2010, Irma Ovalles was charged by information with six robbery- and carjacking-related offenses, all of which arose out of what can only be described as a three-day crime binge,” Newsom said. The  summary of evidence showed “Ovalles and her co-conspirators robbed a grocery store, successfully carjacked three automobiles by force and attempted to carjack a fourth.”

Ovalles pleaded guilty to all six counts. She was sentenced to nine years for each count to run concurrently plus a consecutive 10 years under the residual clause.

Newsom concluded that, if the law is read using a categorical approach, the clause Ovalles challenged is “doomed.” That reading requires judges to overlook the action in question to consider whether the average crime of the same sort would carry a risk of violence.

“On the flip side,” he said “the provision is not unconstitutionally vague” when applying a “conduct-based approach” using real world facts.

Newsom invoked the canon of “constitutional doubt,” saying the U.S. Supreme Court has long held that “every reasonable construction must be resorted to in order to save a statute from unconstitutionality.”

Judge William Pryor wrote a separate concurring opinion, joined by Newsom, Chief Judge Ed Carnes and Judges Gerald Tjoflat and Elizabeth Branch. The majority opinion included those, plus Judges Stanley Marcus, Robin Rosenbaum and Frank Hull.

“How did we ever reach the point where this court, sitting en banc, must debate whether a carjacking in which an assailant struck a 13-year-old girl in the mouth with a baseball bat and a cohort fired an AK-47 at her family is a crime of violence?” Pryor wrote. “It’s nuts. And Congress needs to act to end this ongoing judicial charade.”

Pryor said he fully joined Newsom’s majority opinion, “but I write separately to explain why our resolution of this appeal forecasts how Congress should address the vexing issue of how to punish violent recidivists under laws like the Armed Career Criminal Act.”

The solution lies in “restoring the traditional role of the jury,” Pryor said. “The caselaw about how to punish recidivists has confounded the federal courts for decades and has made the resolution of this appeal tricky, but our decision also suggests a way out of the mess.”

Pryor said the “obvious solution” is for Congress to “rewrite the Armed Career Criminal Act and other recidivist statutes to require that the government must prove to a jury beyond a reasonable doubt that the defendant has previously been convicted of a felony, the actual commission of which involved the use, attempted use,, or threatened use of physical force against another person.”

He added, “Tasking the jury with determining recidivism is consistent with the common law.”

But Judge Jill Pryor said the majority was wrong and its decision “perpetuates unconstitutional sentences” for other prisoners. Pryor was joined by Judges Charles Wilson, Beverly Martin and Adalberto Jordan.

“This case — with all its textual analysis, discussion of canons of statutory construction and parsing of precedent — may come across like a purely academic exercise,” Jill Pryor said. “In reality, it is anything but. People who are serving sentences of five years to life under § 924(c) will get no relief from this court even though the Supreme Court held that an identically worded statute was so vague that its enforcement violated the right to due process under law.”

While agreeing with Jill Pryor, Martin wrote a separate dissent saying the decision reflects many others that she believes have left prisoners with overly harsh sentences.

Circuit judges “ have been given great power and privilege. And our positions call upon us to decide the fate of many people who have neither,” Martin said. “In a nation that incarcerates a larger percentage of its population than almost all others, federal judges devote much time to examining (and reexamining) the sentences imposed on people serving time in our federal and state prisons. The interpretation the majority of this en banc court gives to the sentencing statute at issue here, which gives no relief for Irma Ovalles, presents the opportunity to review the development of this circuit’s sentencing jurisprudence in recent years.”

Martin said her review shows her colleagues are keeping people in prison for longer than necessary.

“Decisions of this court have left only a narrow path to relief for those serving sentences longer than the law now allows. Yet this narrow path is not mandated by decisions of the Supreme Court or by Acts of Congress. Indeed, this court has withheld relief from prisoners even when precedent counsels otherwise,” Martin said.

“At every turn,” Martin said her colleagues in the majority have “erred in ways that stopped prisoners from getting their sentences reviewed and prevented people who had meritorious claims from getting relief.”

Circuit Judge Frank Hull wrote for the panel last year and participated in the en banc review but was barred as a senior judge from voting.

The case is Ovalles v. U.S.A, No. No. 17-10172.