THE COURT HAS HELD THAT THE “RESIDUAL CLAUSE” OF 18 U.S.C. 16(b) IS UNCONSTITUTIONALLY VAGUE AND VIOLATES THE DUE PROCESS CLAUSE.
This is big news for a lot of people out there, but many people may not understand the importance of Dimaya and why it has been a such a hot topic recently.
Section 16(b) defines a “crime of violence” as:
(a) an offense that has an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and 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 latter subsection is what is known as the “residual clause,” and it probably looks very familiar to a lot of you. That is because the wording is quite similar to the definition of a “crime of violence” under the Armed Career Criminal Act (“ACCA”). And of course, the Supreme Court held the residual clause of the ACCA unconstitutional in 2015, in Johnson.
So what does this decision mean and why is it important?
First, the decision is extremely significant because the Court has now held that its decision in Johnson is applicable to other similarly-worded statutes. As most of you will likely recall, we were all waiting with bated breath for the decision in Beckles. There, the Supreme Court addressed the question of whether Johnson also applied to the U.S. Sentencing Guidelines. In a major upset, the Court held it did not because the Guidelines were not subject to a Due Process challenge.
However, today’s holding shows that Johnson can be equally applied to statutes that use identical or similarly-worded residual clauses. So, what statutes include language similar to 18 U.S.C. 16(b)? 18 U.S.C. 924(c).
Under section 924(c), a “crime of violence” is defined as:
(A) has an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) 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.
18 U.S.C. 924(c)(3)(A)-(B).
Thus, the residual clause of 18 U.S.C. 924(c)(3)(B) is near identical to the now-defunct 18 U.S.C. 16(b).
This is big news. Those that have been charged and convicted under 18 U.S.C. 924(c), and whose predicate offense was a “crime of violence” that falls under the residual clause of 924(c)(3)(B), may rely on Dimaya to argue that their conviction and sentence are unconstitutional. I am sure that many individuals currently have litigation that is stayed pending Dimaya, and many others out there have been waiting to see what the decision would bring. With today’s holding, now is the time to act.
I have included the syllabus Dimaya below.
SUPREME COURT OF THE UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 15-1498 Argued January 17, 2017-Reargued October 2, 2017-Decided April 17, 2018
The Immigration and Nationality Act (INA) virtually guarantees that any alien convicted of an “aggravated felony” after entering the United States will be deported. See 8 U. S. C. 1227(a)(2)(A)(iii), 1229b(a)(3), (b)(1)(C). An aggravated felony includes “a crime of violence (as defined in [18 U. S. C. 16] . . . ) for which the term of imprisonment [is] at least one year.” 1101(a)(43)(f). Section 16’s definition of a crime of violence is divided into two clauses—often referred to as the elements clause, 16(a), and the residual clause, 16(b). The residual clause, the provision at issue here, defines a “crime of violence” as “any other offense that is a felony and 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.” To decide whether a person’s conviction falls within the scope of that clause, courts apply the categorical approach. This approach has courts ask not whether “the particular facts” underlying a conviction created a substantial risk, Leocal v. Ashcroft, 543 U. S. 1, 7, nor whether the statutory elements of a crime require the creation of such a risk in each and every case, but whether “the ordinary case” of an offense poses the requisite risk, James v. United States, 550 U. S. 192, 208.
Respondent James Dimaya is a lawful permanent resident of the United States with two convictions for first-degree burglary under California law. After his second offense, the Government sought to deport him as an aggravated felon. An Immigration Judge and the Board of Immigration Appeals held that California first-degree burglary is a “crime of violence” under 16(b). While Dimaya’s appeal was pending in the Ninth Circuit, this Court held that a similar residual clause in the Armed Career Criminal Act (ACCA)—defining “violent felony” as any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” 18 U. S. C. 924(e)(2)(B)—was unconstitutionally “void for vagueness” under the Fifth Amendment’s Due Process Clause. Johnson v. United States, 576 U. S. ___, ___. Relying on Johnson, the Ninth Circuit held that 16(b), as incorporated into the INA, was also unconstitutionally vague.
Held: The judgment is affirmed. 803 F. 3d 1110, affirmed.