By Sarah Flinn
Relying on the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), the U.S. Court of Appeals for the Seventh Circuit recently held that the federal definition of “crime of violence” as defined in 18 U.S.C. § 16(b) is unconstitutionally vague. United States v. Vivas-Ceja, 808 F.3d 719, 720 (7th Cir. 2015). Raul Vivas-Ceja, a citizen of Mexico, has been removed from the United States on three occasions and also has numerous convictions of varying severity. Id. at 720-21. Subsequent to Mr. Vivas-Ceja’s arrest at an airport in Madison, Wisconsin on September 22, 2013, Mr. Vivas-Ceja pled guilty to illegal reentry after removal in violation of INA § 276, a felony under federal law. Id. at 720.
The sentence imposed by INA § 276 varies depending on the defendant’s criminal history prior to removal. Id. A defendant with a prior conviction for an aggravated felony, for example, can be sentenced for up to twenty years imprisonment. Id. The INA defines a crime of violence by cross-referencing the definition of crime of violence found in section 16 of title 18, United States Code. INA § 101(a)(43)(F). In turn, § 16 defines a crime of violence, in relevant part, 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.” 18 U.S.C. § 16(b). The district court concluded that Mr. Vivas-Ceja’s prior conviction for fleeing an officer in violation of Wisconsin Statute § 346.04(2) was a crime of violence under § 16(b). Vivas-Ceja, 808 F.3d at 721. Additionally, the district court rejected Mr. Vivas-Ceja’s argument that § 16(b) is unconstitutionally vague. Id. Mr. Vivas-Ceja then appealed the decision, renewing his argument that § 16(b) is unconstitutionally vague. Id.
The Seventh Circuit began its analysis of § 16(b) by first summarizing and referencing the Johnson opinion’s analysis of the residual clause found in the Armed Career Criminal Act (ACCA). Id. The ACCA defines a violent felony as “any crime punishable by imprisonment for a term exceeding one year . . . that (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another . . . .” 18 U.S.C. § 924(e)(2)(B) (2015). The Johnson Court emphasized and reiterated the prohibition imposed on the government against deprivation of life, liberty, or property “under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” Vivas-Ceja, 808 F.3d at 721 (quoting Johnson, 135 S. Ct. at 2556). Johnson held that the ACCA’s residual clause, analyzed through the required two-step categorical approach, rendered the clause unconstitutionally vague. Johnson, 135 S. Ct. at 2557 (both Johnson and the categorical approach are discussed in more detail here). Additionally, the Seventh Circuit highlighted the Court’s conclusion that the prohibition applies “not only to statutes defining elements of crimes, but also to statutes fixing sentences.” Vivas-Ceja, 808 F.3d at 721 (citing Johnson, 135 S. Ct. at 2557).
The two-step categorical approach first requires the court to determine “the kind of conduct that the crime involves in the ordinary case,” as opposed to the specific facts as presented in the case at hand. Johnson, 135 S. Ct. at 2557 (citing Begay v. United States, 553 U.S. 137, 214 (2008)). According to the Seventh Circuit, the Johnson Court gleaned step one from the statutory phrase “any crime [that] . . . otherwise involves conduct” as the basis for concluding that step one requires an inquiry into the “ordinary case.” Vivas-Ceja, 808 F.3d at 721 (citing Johnson, 135 S. Ct. at 2557). The second step requires the court to determine whether there is a “serious potential risk of physical injury” presented by the ordinary crime. Johnson, 135 S. Ct. at 2557. There are two problems created by the residual cause: the first inquiry provides no guidance on how to determine what constitutes an “ordinary case” of a crime and the second inquiry creates uncertainty regarding how much risk it takes to cause an “ordinary case” to be classified as a violent felony. Vivas-Ceja, 808 F.3d at 722.
While the language in § 16(b) is not identical to the language in the ACCA’s residual clause, the Seventh Circuit concludes that it is “materially the same.” Id.; see also Jimenez-Gonzalez v. Mukasey, 548 F.3d 557, 562 (7th Cir. 2008), and Ortiz v. Lynch, 796 F.3d 932, 935 (8th Cir. 2015). The court also mentioned the persuasiveness of a recent Ninth Circuit Court of Appeals decision holding that § 16(b) both utilizes the two-step categorical approach and is unconstitutionally vague. Vivas-Ceja, 808 F.3d at 722 (citing Dimaya v. Lynch, 803 F.3d 1110, 1119 (9th Cir. 2015) (discussed here)). The Seventh Circuit concluded that the phrase “by its nature” in § 16(b) is synonymous with the residual clause’s phrase “otherwise involves conduct.” Id. Further, the Seventh Circuit’s conclusion that the two phrases are synonymous is supported by Leocal v. Ashcroft, 543 U.S. 1 (2004), which interpreted § 16(b) as directing courts to evaluate “the elements and the nature of the offense,” and not “the particular facts relating to [a defendant’s] crime.” Id. (citing Leocal, 543 U.S. at 7). Consequently, Leocal’s interpretation of § 16(b) is indistinguishable from Johnson’s interpretation of the ACCA residual clause. Id.
The second step of the categorical approach evaluates the level of risk in the “ordinary case” of the crime. Id. The Seventh Circuit determines that there is no significant difference between the residual clause’s “serious potential risk” and § 16(b)’s “substantial risk.” Id. Neither statement offers guidance to determine what level of risk is required in the ordinary case to raise the crime to a level fitting the statute’s definition (crime of violence for § 16(b) and violent felony for the ACCA residual clause). Id. The Johnson Court concluded that the combined uncertainty and indeterminacy that result when both parts of the categorical approach are applied to the residual clause rendered the clause to be unconstitutionally vague. Id. at 723. Similarly, because § 16(b) also requires a two-step approach that is uncertain and indeterminate, the Seventh Circuit concluded that it is also unconstitutionally vague. Id.
The government raised two arguments opposing the conclusion that § 16(b) is unconstitutionally vague: first because there is no list of enumerated crimes preceding § 16(b), as is found in the ACCA statute, there is no added confusion to the interpretation of § 16(b); and second, that § 16(b) has not caused the shifting and irreconcilable body of case law that the residual clause instigated prior to being addressed by the Supreme Court. Id. The Seventh Circuit rejected both arguments and concluded that the list of enumerated crimes was not one of the two combined features that rendered the residual clause unconstitutionally vague. Id. Similarly, the court determined that while there is not currently a shifting and irreconcilable body of law, this was not a sufficient reason to prevent the court from ruling that the statute was unconstitutionally vague: “[t]he chaotic state of the caselaw was not a necessary condition to the Court’s vagueness determination [in Johnson].” Id. Therefore, the Seventh Circuit concluded that § 16(b) is unconstitutionally vague and vacated Mr. Vivas-Ceja’s sentence and remanded the case for resentencing. Id.
Sarah Flinn is a current 2L student at the University of Denver Sturm College of Law, focusing on immigration and asylum law. She is currently completing an externship with Rocky Mountain Immigration Advocacy Network.
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