In September, the Second Circuit decided that the Armed Career Criminal Act’s (ACCA) §924(c)(3)(B) “risk-of-force clause,” which defines “crime of violence” for the purposes of the ACCA’s firearms-related sentencing enhancements, is still constitutional despite the Supreme Court’s recent Johnson and Dimaya decisions, two cases that struck down similar provisions as unconstitutionally vague. In United States v. Barrett, the court held that conspiracy to commit Hobbs Act robbery was a “crime of violence” under the ACCA’s “risk-of-force clause” and that the constitutional vagueness issues articulated by the Supreme Court in Johnson and Dimaya did not apply.

Risk of Force Clauses and the Categorical Approach

The ACCA imposes sentencing enhancements, ranging from five years to life imprisonment, for defendants who use, carry, or possess firearms during the commission of “any crime of violence or drug trafficking crime.” 18 U.S.C. §924(c)(1)(A). While the ACCA explicitly defines drug trafficking crimes, it defines a “crime of violence” as any felony that either (a) “has as an element the use, attempted use, or threatened use of physical force against the person or property of another” (the “force clause”), or (b) “by its nature, involves a substantial risk that physical force” may be used against the person or property of another while committing the crime (the “risk-of-force clause” or “residual clause”). §924(c)(3).