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D.C. CIRCUIT HOLDS 18 U.S.C. 924(c)(3)(B) UNCONSTITUTIONALLY VAGUE FOLLOWING DIMAYA
Pablo Lovo and Joel Sorto were found guilty of conspiracy to commit Hobbs Act robbery, 18 U.S.C. 1951, and using, carrying or possessing a firearm during a crime of violence. 18 U.S.C. 924(c). Lovo and Sorto appealed their convictions to the D.C. Circuit, which garnered a remand on claims of ineffective assistance of counsel. However, in that appeal, the D.C. Circuit held that the “residual clause” of 18 U.S.C. 924(c)(3)(B) was not unconstitutionally vague.
After that decision, the Supreme Court issued its opinion in Sessions v. Dimaya, which held that 18 U.S.C. 16(b) is unconstitutionally vague. Lovo and Sorto subsequently sought rehearing on the basis that Dimaya requires vacatur of their 924(c) convictions.
The court noted that 18 U.S.C. 16(b) and 924(c)(3)(B) were “materially identical.” And the government conceded that the panel should grant rehearing to determine the impact of Dimaya. Nonetheless, the government argued that 924(c)(3)(B) requires a case-specific approach that considers the defendant’s own conduct, rather than the “ordinary case” of the crime. As the D.C. Circuit noted, the government’s argument was an attempt to distinguish 924(c) to avoid “the constitutional concerns that [a categorical] interpretation would create following Dimaya.”
But, circuit precedent held that section 924(c)(3)(B) requires the use of the categorical approach. United States v. Kennedy, 133 F.3d 53, 56 (D.C. Cir. 1998). Therefore, the court rejected the government’s argument of distinguishing 924(c)(3) from section 16.
The D.C. Circuit held that the Supreme Court’s decision in Dimaya invalidates the residual clause of 18 U.S.C. 924(c)(3)(B). However, the court noted that it takes no position on whether conspiracy to commit Hobbs Act robbery may still qualify under 18 U.S.C. 924(c)(3)(A).
The court vacated Lovo’s and Sorto’s 924(c) convictions, and remanded to the district court for further proceedings.
JEREMY’S TAKE: This case was decided earlier this month, and I have since received a lot of inquiries as to what impact Eshetu may have. The D.C. Circuit’s opinion is critical because it holds that 924(c)(3)(B) is in fact invalidated after the Court’s decision in Dimaya. But, the D.C. Circuit did not specifically address whether Hobbs Act conspiracy fails to qualify as a crime of violence under the elements clause of 924(c)(3)(A). I imagine this issue will be decided in the D.C. Circuit in the near future.
Since Dimaya, I have also received many inquiries as to what circuits have held Hobbs Act (substantive, conspiracy or attempted) fails to qualify as a crime of violence under 924(c)(3). I am working on a future newsletter that will take a circuit-by-circuit look at the impact of Dimaya, specifically on Hobbs Act related offenses. Keep an eye out for this.