Fifth Circuit Holds Federal “Crime of Violence” Provision Not Void for Vagueness - En Banc Decision Creates Circuit Split


The application of the void for vagueness doctrine to “crimes of violence” continues to make its way through the federal courts (See here, here and here for prior Immprof Blog coverage of this issue).   On August 3, the Fifth Circuit Court of Appeals issued an en banc decision in United States v. Gonzalez-Longoria, in which a noncitizen who was criminally prosecuted for illegal re-entry received a sentencing enhancement due to the existence of a prior conviction found to constitute a “crime of violence.”   By reversing the Fifth Circuit’s prior Gonzalez-Longoria decision, issued on February 10, the court’s recent en banc opinion has created a circuit split on the application of the Supreme Court’s decision in Johnson v. United States (holding the residual clause of the Armed Career Criminal Act at 18 U.S.C. § 924(e)(2)(B) to be unconstitutionally vague) to this sub-part of the federal “crime of violence” definition, which has implications for the civil immigration and criminal sentencing realms.  

The now-invalidated residual clause of the ACCA is similar, but not identical, to the crime of violence definition at 18 U.S.C. § 16(b).  Judge Stephen Higginson’s majority opinion in Gonzalez-Longoria emphasized the textual differences between the two statutes to find that the crime of violence provision was not void for vagueness.  But a dissenting opinion by Judges E. Grady Jolly (joined by Judges Carl Stewart, James Dennis and James Graves) asserted that while the crime of violence provision might not be as vague as the ACCA’s residual clause, it still raises the same indeterminacy problems raised by the Supreme Court in Johnson.  As the dissent puts it, the Fifth Circuit’s decision “drifts from reason—and into the miasma of the minutiae—when it determines that these vagaries suffice to distinguish § 16(b) from the residual clause.”

There is a solid likelihood that the Supreme Court will take up this issue in the upcoming term by granting certiorari in Dimaya v. Lynch, the Ninth Circuit decision that found the crime of violence provision at Section 16(b) to be void for vagueness, in which the Solicitor General has already petitioned for certioriari.  The Ninth, Seventh, Sixth, Second, and Fifth Circuits have now weighed in on the application of Johnson to either the crime of violence provision at §16(b) or to 18 U.S.C. § 924(c)(3)(B), a sentencing provision with nearly identical language (not to be confused with the ACCA’s residual clause.  The Sixth Circuit’s approach to Johnson in particular seems to require clarification, since it held in February of this year that 18 U.S.C. § 924(c)(3)(B) is not vague, United States v. Taylor, 814 F.3d 340, 379 (6th Cir. 2016), but just last month found that the relevant crime of violence provision is void for vagueness.  See Shuti v. Lynch, No. 15-3835, 2016 WL 3632539, at *8 (6th Cir. July 7, 2016).

The impact of Justice Scalia’s departure from the Court will be felt if cert is granted in Dimaya, given that the late Justice had authored the majority opinion in Johnson.

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About The Author

Jennifer Lee Koh. Jennifer Lee Koh Professor of Law, is an expert on immigration law and clinical teaching, and has devoted much of her career to promoting and protecting the rights of immigrants across the country. Professor Koh joined Western State in 2010 from Stanford Law School, where she was a Clinical Lecturer and Cooley Godward Kronish Fellow. At Stanford, she supervised students enrolled in the Immigrants' Rights Clinic on cases ranging from the representation of individual noncitizens in immigration matters to policy work, community-based advocacy and litigation on behalf of immigrants. Professor Koh teaches immigration law, administrative law, and directs the immigration law clinic. The Immigration Clinic offers second- and third-year law students the opportunity to develop lawyering skills by working firsthand on real-life cases and advocacy involving immigration issues.

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