Gorsuch, J., concurring in judgment
about a 2-year mandatory federal prison sentence. Criminal statutes are not games to be played in the car on a cross-country road trip. To satisfy the constitutional minimum of due process, they must at least provide “ordinary people” with “fair notice of the conduct [they] punis[h].” Johnson v. United States, 576 U. S. 591, 595 (2015). And, respectfully, I do not see how §1028A(a)(1) can clear that threshold. Under the Court’s “crux” test, no boundary separates conduct that gives rise to liability from conduct that does not. And it appears I share this concern with the very lower court judges who will have to apply this standard prospectively. As even many of the Fifth Circuit dissenters below warned, the sort of “facilitation standard” the Court today adopts, “with its incidental/integral dividing line,” is unworkable because it “lacks clear lines and a limiting principle.” 27 F. 4th 1021, 1042 (2022) (en banc) (Costa, J., dissenting). In the end, it is hard not to worry that the Court’s “crux” test will simply become a fig leaf for judges’ and jurors’ own subjective moral judgments about whether (as the Court itself puts it) the defendant’s crime is “one that warrants a 2-year mandatory minimum.” Ante, at 17.
I do not question that the Court today has done the best it might to make sense of this statute. It’s just that it faces an impossible task. In the past when this Court has grappled with similar statutory language, it has done so in contexts where the relevant terms could carry only a few possible (and comparatively fixed) meanings. For example, when it comes to the “us[e]” of a firearm “in relation” to a crime of violence, 18 U. S. C. §924(c)(1)(A), the presence of a gun could be a but-for cause of (or a necessary ingredient of) the offense—used, for example, as compensation in an exchange for illicit drugs. Smith v. United States, 508 U. S. 223, 237–238 (1993). Or the gun could be “ ‘used as a weapon’ ” by being discharged or brandished. Id., at 243 (Scalia, J., dissenting). Because both those interpretations are relatively bounded and understandable, this Court
