ktierney@fbtlaw.com www.frostbrowntodd.com Update on Sessions v. Dimaya Kevin M. Tierney Frost Brown Todd, LLC 3300 Great American Tower 301 East Fourth Street Cincinnati, Ohio 45202 513-651-6859 ktierney@fbtlaw.com www.frostbrowntodd.com

Overview of Topics 1. U.S. Supreme Court decided Sessions v. Dimaya, which held the federal criminal code definition of crime of violence at 18 U.S.C. §16(b) is unconstitutionally vague 2. 6th Circuit decisions in Taylor and Shuti must be considered in light of Dimaya 3. Raise Dimaya as an issue in 924(c) residual clause cases

Dimaya v. Sessions, 138 S.Ct. 1204 (Apr. 17, 2018) Immigration and Nationality Act (“INA”) renders deportable any alien convicted of an “aggravated felony” after entering the U.S. INA defines “aggravated felony” by cross-reference to various federal criminal statutes, including the definition for the term “crime of violence” found at 18 U.S.C. §16, which has both an elements section and a residual clause section.

Definition of Crime of Violence Under 18 U.S.C. §16 Elements Subsection (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 Residual Clause (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

Dimaya is a split decision Dissent by Chief Justice Roberts Opinion of the Court by Justice Kagan Joined by Justices Kennedy, Thomas, and Alito Johnson considered the ACCA; 16(b) has textual differences that save it. Joined by Justices Ginsburg, Breyer, and Sotomayor Used Categorial Approach to analyze the residual clause of §16 Relied on Johnson to find that §16(b) is unconstitutionally vague Separate Dissent by Justice Thomas There is no such thing as unconstitutionally vague under the DP Clause If the categorical approach is the problem, get rid of it. Concurrence by Justice Gorsuch Followed categorical approach because of Johnson and because the government conceded that the law requires it

U.S. v. Taylor, 814 F.3d 340 (6th Cir. Feb. 11, 2016) After Johnson but before Dimaya Held: §924(c)’s residual clause is not unconstitutionally vague because it is considerably narrower than the statute invalidated by the Court in Johnson. 6th Circuit recognized that the 7th and 9th Circuits recently invalidated 18 U.S.C. §16(b) which is identical to §924(c)(3)(B) but said “neither decision changes our conclusion.” The 9th Circuit case it referenced was Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015) – affirmed by Supreme Court

Shuti v. Lynch, 828 F.3d 440 (Jul. 7, 2016) After Taylor but before Dimaya Held that §16(b)’s definition of crime of violence was unconstitutionally vague. Used the categorical approach Shuti was cited in a footnote in the Supreme Court’s decision in Dimaya, as reaching the same decision that the 9th Circuit had below, which the Supreme Court affirmed.

How to Use Dimaya in CJA Cases §16 serves as the universal definition of “crime of violence” for all of Title 18. Dimaya, 138 S.Ct. at 1241 (Chief Justice Roberts, dissenting). “Its language is incorporated into many procedural and substantive provisions of criminal law, including provisions concerning racketeering, money laundering, domestic violence, using a child to commit a violent crime, and distributing information about the making or using of explosives.” Id.

Use Dimaya to challenge the residual clause of the definition of “crime of violence” in §924(c)(3)(B) The language in §924(c)(3)(B) is identical to §16(b), which the Supreme Court found to be unconstitutionally vague. Recognize that Taylor which upheld §924(c)(3)(B) in the face of a vagueness challenge is still good law in the 6th Circuit. There is a Circuit Split regarding the application of Dimaya to the residual clause of §924(c)

Circuits Are split over the application of Dimaya to residual clause of §924(c) Not unconstitutionally vague under Dimaya using the conduct-based approach U.S. v. Barrett, 903 F.3d 166 (2nd Cir. 2018) Ovalles v. U.S., --F.3d– (11th Cir. 2018) U.S. v. Douglas, --F.3d– (1st Cir. 2018) Unconstitutionally vague based on Dimaya U.S. v. Salas, 889 F.3d 681 (10th Cir. 2018) U.S. v. Eshetu, 898 F.3d 36 (D.C. Cir. 2018) U.S. v. Davis, 903 F.3d 483 (5th Cir. 2018)

What Happens if you File a Motion to Dismiss a §924(c) charge based on vagueness of the residual clause You will probably lose at the District Court level See U.S. v. Carpenter, 2018 WL 3435061, decision by Judge Dlott §2255 case arguing §924(c) is unconstitutional as applied to the defendant District Court denied §2255 relief because: Taylor is binding precedent; Defendant forfeited this claim by not raising it on direct appeal; and Defendant was convicted under the elements clause of §924(c)

But, you want to preserve this issue for appeal U.S. v. Richardson, --F.3d—(6th Cir., Oct. 11, 2018) Convicted on 5 counts of 924(c), among other offenses, and he was sentenced. Appealed and the 6th Cir. affirmed. While his appeal was pending, Supreme Court decided Johnson, and defendant petitioned the court for certiorari, which the Court granted, vacated 6th Cir. judgment and remanded. 6th Cir. issued order vacating his sentence and remanding to the district court for further consideration in light of Johnson

Richardson, --F3d. – (6th Cir. 2018) On remand, district court reinstated the original sentence Richardson appealed to 6th Cir. and argued that the reasoning in Johnson applies to the residual clause of §924(c). 6th Cir. determined that his convictions under §924(c) were acceptable under the force clause of the definition of crime of violence.

Richardson offers hope Acknowledges that Taylor, rejected the argument that 924(c)’s residual clause is unconstitutionally vague. “But more recent decisions from this court and the Supreme Court, however, suggest that Taylor stands on uncertain ground.” Notes that Shuti, held that the identically worded definition of the term “crime of violence” in 18 U.S.C. §16(b) is unconstitutionally vague. Notes that Dimaya, consistent with Shuti, concluded that §16(b) is unconstitutionally vague.

What to Argue Regarding §924(c) residual clause Dimaya requires that the residual clause of §924(c) is unconstitutionally vague Use the categorical approach to analyze the residual clause of §924(c) Follow the reasoning of Justice Kagan’s decision: Residual clause calls for an identification of a crime’s ordinary case in order to measure the crime’s risk; and There is an ill-defined risk threshold and uncertainty about the level of risk that makes a crime violent.