Will The Supremes Use Dimaya To Keep The Residual Clause Alive?
October 4, 2016 (Fault Lines) — The U.S. Supreme Court granted review in a case called Dimaya v. Lynch, on the question of whether 18 U.S.C. § 16(b) is unconstitutionally vague. While your eyes probably glazed over reading that last sentence, this case is actually very important. It could also be bad news that the Court is hearing the case.
Johnson dealt with the Armed Career Criminal Act (ACCA), which imposes a mandatory 15-year prison term for felons in possession of firearms if they have three or more prior convictions for certain crimes, including “crimes of violence.” As terrible as that law was and is in theory, pre-Johnson it was even worse in practice because ACCA had a “residual clause.” The residual clause said that any crime was a crime of violence if it “otherwise involve[d] conduct that presented] a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii).
The problem was the clause meant everything and nothing at the same time. Is DUI a crime of violence? Ultimately, no. Is fleeing from the police? Eventually, yes. What about possessing a sawed-off shotgun? Maybe.
After a long campaign, Justice Scalia had enough and convinced the Court to find the clause unconstitutionally vague. This was because it left “grave uncertainty about how to estimate the risk posed by a crime” and because similarly grave “uncertainty about how much risk it takes for a crime to qualify as a violent felony.”
Johnson was a big deal because ACCA’s residual clause wasn’t the only one. There are two other major ones, the Federal Career Offender Guideline and one in the Immigration and Nationality Act (Section 16(b)). The Career Offender Guideline is similar to ACCA, in that under federal sentencing law if a defendant has a certain class of conviction and two prior convictions for qualifying crimes, including residual crimes of violence, he gets hit with a presumptive 15-year sentence. Under Section 16(b), if someone has a conviction for a residual crime of violence and is not a U.S. citizen, he is presumptively removable from the country and gets almost no procedural protections.
Pretty quickly after Johnson, the Career Offender Guidelines fell in several circuit courts. The clauses are identical, after all.
The Eleventh Circuit wasn’t having it. In an unpublished, per curiam, ruling on remand from Johnson, a panel upheld the guidelines in Beckles v. United States. The Court decided that, despite the identical wording, “Johnson says and decided nothing about career-offender enhancements.” That’s it as far as analysis.
The Supreme Court granted review in Beckles at the defendant’s request over the government’s opposition. Although it’s always dangerous to engage in this kind of speculation, it’s tempting to think that maybe the Court wants to put the Eleventh Circuit in line with its brethren.
But what about the INA? Dimaya was the first of many several cases that invalidated Section 16(b). The momentum seems to be on Dimaya’s side.
Meanwhile, the Fifth Circuit has upheld Section 16(b). How? Well, Section 16(b) isn’t exactly the same as the residual clause in ACCA, so the Court decided it was fine.
Let’s compare. ACCA’s clause says a crime qualifies if it:
otherwise involves conduct that presents a serious potential risk of physical injury to another.
Section 16(b) says a crime qualifies if:
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 Fifth Circuit reasoned that the term “physical force” was more precise that “physical injury” and the phrase “course of committing the offense” limited the inquiry to the immediate crime, not its aftermath. Somehow these differences were good enough to save the uncertainty of the statute.
Now, the Court has decided to hear Dimaya, at the government’s request, over the alien’s objection. There are at least two ways to think about this. On one hand, this may be a signal that the Court just wants to get the whole residual clause business over with once and for all, while they are already hearing Beckles. On the other, it could be a signal that the short-handed Court is going to try to figure out a way to save one or more of the remaining residual clauses.
It would seem that the first option makes the most sense. It seems ridiculous to say one statute is unconstitutionally vague because we can never figure out what it covers in one context but not in another almost identical context. The Career Offender Guidelines jack up suggested sentences on the whim of whether a prior offense can, in the ordinary case, maybe have the risk of hurting someone, regardless of whether anyone ever actually got hurt.
Section 16(b) is, in some ways worse, because it can result in people being automatically removed from the country, even if they have lived here, legally, for decades, because they have a dumb conviction for something like aggravated criminal contempt. Unlike the recidivist enhancement in the guidelines, which only applies to people convicted of serious federal felonies, Section 16(b) can trigger removal when someone gets picked up on a dumb charge and pleads guilty at arraignment for a year of probation.
But there is a real danger the Court may be headed towards saving Section 16(b). Justice Scalia was the force behind Johnson, and with him gone it’s uncertain how the Court is going to move. Perhaps the Court is thinking about shutting down the Johnson aftermath and establishing limits in this kind of vagueness challenge. Dimaya very well could make Johnson a sui generis case, and lock it away as an exemplar of Justice Scalia’s quirkiness.
No matter how it turns out, Dimaya is a case to watch this term.
 There are others, but this is complicated enough without getting into them.