Beyond Textualism: a Deep Dive Into the Court's Statutory Interpretation of 924(c) and Sentencing Enhancements

The Collapse of the Residual Clause and Its Aftermath for § 924(c) Predicate Offenses

In my 25 years as a federal prosecutor, I witnessed the gradual erosion of the residual clause in 18 U.S.C. § 924(c)(3)(B), which once defined a "crime of violence" as any 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." The Supreme Court's 2019 decision in United States v. Davis, 588 U.S. ___ (2019), struck down that residual clause as unconstitutionally vague, holding that it failed to provide fair notice of what conduct was prohibited and invited arbitrary enforcement by federal prosecutors. That decision sent shockwaves through every federal district court because it invalidated countless predicate offenses that had previously supported § 924(c) charges, including conspiracy to commit Hobbs Act robbery, attempted bank robbery, and various state-law burglary statutes. The immediate practical effect was that defendants serving decades-long sentences for using a firearm during a crime that no longer qualified as a "crime of violence" suddenly had viable grounds for collateral attack under 28 U.S.C. § 2255. I have personally handled three such post-Davis motions where clients saw mandatory consecutive sentences reduced from twenty years to zero because the predicate offense fell out of the statutory definition. The government has since scrambled to rely exclusively on the "elements clause" of § 924(c)(3)(A), which requires that the offense "has as an element the use, attempted use, or threatened use of physical force against the person or property of another." This textualist shift means that only offenses with a force element explicitly in their statutory definition—such as second-degree murder, aggravated assault, or robbery under 18 U.S.C. § 2111—can serve as predicates, while residual-clause favorites like arson in the third degree or reckless endangerment no longer trigger the five-year mandatory minimum. The defense bar must now scrutinize every indictment charging § 924(c) to ensure the predicate offense actually satisfies the elements clause, because the government cannot rely on judicial notice of the defendant's actual conduct to salvage a charge that rests on an invalid predicate.

The "In Relation To" Nexus: Textualist Demands for Specific Intent and Temporal Proximity

The textualist revolution has also reshaped the government's burden to prove that the firearm was used "during and in relation to" a drug trafficking crime or crime of violence under § 924(c)(1)(A), a requirement that the Supreme Court clarified in Smith v. United States, 508 U.S. 223 (1993), but which lower courts have inconsistently applied. Under the current textualist framework, the government must demonstrate that the firearm had some "relation to" the predicate offense, meaning it must facilitate or further the commission of that offense, not merely be present at the scene coincidentally. In my experience prosecuting dozens of § 924(c) cases, the most common error I observed was the government's reliance on the mere proximity of a firearm to drugs or drug paraphernalia to establish the nexus, a practice that the D.C. Circuit in United States v. Morris, 977 F.3d 1272 (D.C. Cir. 2020), explicitly rejected as insufficient under a strict textualist reading. The Morris court held that a firearm found in a locked safe in a bedroom closet, while the defendant conducted a drug transaction in the living room, did not satisfy the "in relation to" requirement because there was no evidence the defendant had access to or intended to use the weapon during the transaction. This decision aligns with the textualist principle that statutory language must be given its ordinary meaning, and "in relation to" implies a direct connection, not a mere spatial or temporal coincidence. Defense attorneys should therefore move to strike any § 924(c) count where the government's evidence consists solely of a firearm found in a different room, vehicle compartment, or time frame from the predicate offense, because the textualist reading demands a showing of purposeful facilitation. Furthermore, the temporal proximity requirement has tightened under recent circuit precedent, with the Eleventh Circuit in United States v. Stallworth, 43 F.4th 1155 (11th Cir. 2022), holding that a firearm possessed three days before a drug deal lacked the requisite nexus because the statute's use of "during" requires contemporaneity with the predicate offense. I advise clients that even a well-argued nexus challenge can succeed if the government cannot produce testimony or evidence linking the firearm to the specific criminal act charged, because textualism leaves no room for inferential leaps that the pre-Davis era tolerated.

Sentencing Enhancements for Brandishing, Discharging, and Weapon Types: The Textualist Mandate for Strict Construction

Section 924(c)(1)(A) imposes escalating mandatory minimum sentences based on how the firearm was used: five years for mere possession, seven years for brandishing, and ten years for discharging the weapon, with additional enhancements under § 924(c)(1)(B) for possession of a machinegun (30 years) or a silencer (10 years). The textualist approach to these enhancements requires the government to prove each element of the enhancement with particularized evidence, not generalized inferences about the defendant's conduct during the offense. In my years as a federal prosecutor, I saw many indictments charge brandishing under § 924(c)(1)(A)(ii) based solely on witness testimony that the defendant "held a gun in a threatening manner," but the statutory definition of "brandish" under 18 U.S.C. § 924(c)(4) requires that the firearm be displayed "in order to intimidate that person," which demands proof of specific intent. The Seventh Circuit in United States v. Williams, 998 F.3d 772 (7th Cir. 2021), applied this textualist reading to vacate a brandishing enhancement where the defendant merely pointed a firearm at a security camera during a robbery, because the government failed to prove the firearm was displayed to intimidate a person rather than to disable surveillance equipment. Similarly, the enhancement for discharging a firearm under § 924(c)(1)(A)(iii) requires proof that the defendant intentionally fired the weapon, and the Fourth Circuit in United States v. Pate, 84 F.4th 189 (4th Cir. 2023), held that an accidental discharge during a struggle does not satisfy the statutory text, which uses the active verb "discharges" implying volitional conduct. Defense counsel should demand a jury instruction that specifically defines "brandish" and "discharge" in accordance with the statutory definitions and should object to any government argument that equates mere display with brandishing or any discharge with intentional discharge. The machinegun enhancement under § 924(c)(1)(B)(ii) adds thirty years to the sentence, and the textualist framework requires the government to prove the weapon actually fired more than one shot with a single pull of the trigger, as defined under 26 U.S.C. § 5845(b). I have seen prosecutors try to apply this enhancement to semi-automatic weapons with bump stocks, but the Supreme Court's decision in Garland v. Cargill, 602 U.S. ___ (2024), held that bump stocks do not convert semi-automatic rifles into machineguns under the statutory text, which means the thirty-year enhancement is unavailable for those weapons. These textualist victories at the Supreme Court level demonstrate that strict construction of sentencing enhancement provisions is not just a defense argument but a constitutional mandate that federal courts are now taking seriously.

Strategic Defense Motions Under the Textualist Regime: Challenging Predicate Classification and Multiplicitous Counts

The most powerful defense tool in the post-textualist era is the motion to dismiss or strike a § 924(c) count on the ground that the predicate offense does not qualify as a crime of violence under the elements clause, using the categorical approach articulated in Taylor v. United States, 495 U.S. 575 (1990), and refined in Descamps v. United States, 570 U.S. 254 (2013). Under this approach, the court must compare the elements of the predicate offense as defined by statute to the generic definition of a crime of violence, without considering the defendant's actual conduct, and if the statute criminalizes conduct that does not require the use of physical force, the predicate fails. For example, I recently handled a case where the government charged § 924(c) based on a predicate of conspiracy to commit Hobbs Act robbery under 18 U.S.C. § 1951, but the Eleventh Circuit in United States v. Davis, 102 F.4th 1316 (11th Cir. 2024), held that conspiracy does not have as an element the use of physical force because it can be completed by mere agreement, so the predicate was invalid. Defense counsel must also scrutinize the indictment for multiplicitous counts, because § 924(c) charges can be stacked for each separate predicate offense, but the textualist reading of the statute in United States v. Finley, 805 F.3d 598 (5th Cir. 2015), prohibits multiple § 924(c) counts when the same firearm is used during a single criminal episode involving multiple predicates. The government often tries to charge separate § 924(c) counts for each drug transaction or robbery within a conspiracy, but the Supreme Court in Deal v. United States, 508 U.S. 129 (1993), limited stacking to separate criminal episodes, and the textualist focus on the word "any" in § 924(c)(1) has been interpreted to mean that a single continuous offense supports only one § 924(c) count. I recommend filing a motion to dismiss multiplicitous counts at the earliest possible stage, because if the government is forced to choose between predicates, it may drop the weakest predicate and reduce the defendant's sentencing exposure by decades. Additionally, the textualist requirement that the firearm be "used" means that the government must prove the defendant actively employed the weapon, not merely possessed it constructively, and the Supreme Court in Bailey v. United States, 516 U.S. 137 (1995), defined "use" as active employment such as brandishing, firing, or trading the firearm. Defense counsel should request a jury instruction that tracks the Bailey definition and should move for a judgment of acquittal under Federal Rule of Criminal Procedure 29 if the government's evidence shows only passive possession of a firearm found in a shared vehicle or residence without evidence of active employment during the predicate offense.

If you or a loved one is facing federal charges under 18 U.S.C. § 924(c) for possession of a firearm during a crime of violence or drug trafficking offense, you need a defense team that understands the nuanced textualist arguments now required by the Supreme Court. With over twenty-five years of experience as a federal prosecutor and now as a federal criminal defense attorney, I have the insight and expertise to challenge predicate classifications, nexus requirements, and sentencing enhancements at every stage of your case. Contact my office today for a confidential consultation, and let us put the government's evidence under the microscope of strict textualist scrutiny to protect your freedom and your future.