By Sarah Flinn
Agreeing with both the Seventh and Ninth Circuits, the U.S. Court of Appeals for the Fifth Circuit concluded that the definition of crime of violence in 18 U.S.C. § 16(b) is unconstitutionally vague. United States v. Gonzalez-Longoria, No. 15-40041, 2016 WL 537612, at *1 (5th Cir. February 10, 2016). Mr. Gonzalez-Longoria was convicted and sentenced for being illegally present in the United States in violation of Immigration and Nationality Act (INA) § 276. Id. During sentencing, the trial court determined that Mr. Gonzalez-Longoria’s prior Texas felony conviction was an “aggravated felony” and therefore required an eight-level sentencing enhancement. Id. at *1, *9; see U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(C) (U.S. Sentencing Comm’n 2011). The Sentencing Commission’s advisory notes specify that for § 2L1.2(b)(1) the definition of “aggravated felony” has the same meaning as provided in section 101(a)(43) of the Immigration and Nationality Act (8 U.S.C. § 1101(a)(43)). U.S. Sentencing Guidelines Manual § 2L1.2(b)(1) cmt. n.3(A) (U.S. Sentencing Comm’n 2011).
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(b) defines a crime of violence, as relates to Mr. Gonzalez-Longoria’s prior conviction, 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).
Mr. Gonzalez-Longoria argued that § 16(b) is unconstitutionally vague. Gonzalez-Longoria, 2016 WL 537612, at *1. If § 16(b) were to be found unconstitutional, § 2L1.2(b) of the Sentencing Guidelines could not incorporate § 16(b)’s definition by reference. Id. This would permit Mr. Gonzalez-Longoria to receive a new sentence without the eight-level enhancement. Id. More broadly, it would also have the effect of prohibiting immigration judges from ordering anyone’s removal for having been convicted of an offense defined as a crime of violence under § 16(b).
The Fifth Circuit began its analysis of § 16(b) by interpreting the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015). Id. at *3. The Johnson opinion analyzed the constitutionality of a provision in the Armed Career Criminal Act (ACCA) that bears a strong resemblance to § 16(b). Known as the “residual clause,” 18 U.S.C. § 924(e)(2)(B) 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 . . . .” The Johnson Court held that this language, 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).
When analyzing whether a statute is unconstitutionally vague, the Fifth Circuit relies on “two features” identified by the Johnson Court as fatal flaws: (1) that courts must imagine an “ordinary case” and (2) the courts must then adjudicate the “ordinary case” under an “imprecise standard.” Gonzalez-Longoria, 2016 WL 537612, at *3. The Fifth Circuit determined that “neither of these ‘features’ [were] self-explanatory” and therefore required full analysis. Id. Interpreting Johnson, the Fifth Circuit summarized the Johnson test for vagueness. Id. at *5. The test incorporated the “two features” – first, whether the statute requires a court to analyze an imaginary, archetypical case (the Fifth Circuit referred to the “ordinary case” as the “archetypical case”) and second, whether the archetypical case must be adjudicated under an imprecise standard. Id. In analyzing the imprecise standard, the Fifth Circuit interpreted Johnson to require that the court first look at the text of the statute and then three non-exclusive factors: presence or absence of clarifying examples, whether the scope is limited or expansive, and judicial agreement or disagreement. Id.
The first question, whether the statute requires an analysis of an archetypical case, is the threshold question: if a court is able to look at the specific facts of the case before it and is not required to imagine an archetypical case, then Johnson does not apply. Id. at *5, *6. Both parties and the court agreed that § 16(b) requires this type of analysis and thereby satisfies the first prong of Johnson. Id. at *6. The court then compared the text of § 16(b) to the text of the ACCA’s residual clause. Id. While the court found that there were differences between § 16(b) and the residual clause of the ACCA, it concluded that the differences between the two were minimal, indicating that the text of § 16(b) provided similarly imprecise guidance. Id. Therefore, § 16(b) requires courts to analyze an archetypical case under an imprecise standard. Id. The Fifth Circuit next turned to the three factors identified in the Johnson decision to determine whether § 16(b) is unconstitutionally vague. Id.
The first of the three factors, the presence or absence of clarifying examples, arose from the Johnson Court’s conclusion that the list of examples provided in the ACCA’s residual clause was confusing. Id. (citing Johnson, 135 S. Ct. at 2558). Likewise, § 16(b) does not include a list of enumerated crimes and so the Fifth Circuit looked beyond the text of the statute at two possible clarifying examples. Id. at *7. First, in Leocal v. Ashcroft, 543 U.S. 1 (2004), the Supreme Court identified burglary as the “classic example” of a qualifying § 16(b) offense; thereby arguably providing courts with a judicially imposed clarifying example of what qualifies as a § 16(b) offense. Id. However, even with this clarifying example, the Fifth Circuit determined that § 16(b), like the ACCA’s residual clause, lacks sufficient clarity or guidance to provide a definition of what constitutes an ordinary burglary. Id. The second possibly clarifying example arises from the language of INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), which defines “aggravated felony” as a “crime of violence (as defined in section 16 of Title 18, but not including a purely political offense).” Id. (emphasis added). The court, unable to imagine a “purely” political offense that would otherwise qualify as a crime of violence under § 16(b), concludes that this example only provides further confusion and imprecision. Id.
The Fifth Circuit then analyzed the potential breadth of the scope of § 16(b). Id. Relying on Leocal, the court concluded that the risk of physical force referenced in § 16(b) must be beyond the physical acts that make up the crime (otherwise burglary would not count), but must be less than a mere possibility that harm will result. Id. This, in the court’s opinion, is a partial answer that provides little guidance. Id. The third factor, the degree of judicial agreement or disagreement, indicates imprecision within the statute by highlighting varied interpretations. Id. Much of the confusion and disagreement on interpretation of § 16(b) was cleared up by Leocal and Johnson; however, there is still some disagreement among courts on the correct interpretation of § 16(b). Id.
The Fifth Circuit concludes that while § 16(b) is imprecise in all the ways that the ACCA’s residual clause was imprecise, § 16(b) is less imprecise in each factor of the Johnson test. Id. at *9. Nevertheless, the court concludes that the standard set forth in Johnson was not meant to represent the “minimum bar for precision.” Id. The residual clause of the ACCA was so imprecise that the Johnson Court felt compelled to depart from stare decisis. Id. The Fifth Circuit concludes that this signifies that a standard that is only marginally more precise could still be unconstitutionally vague. Id. Therefore, although § 16(b) is marginally more precise than the ACCA’s residual clause, it is still unconstitutionally vague because it requires courts to analyze an archetypical case using an imprecise standard. 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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