Published on: Tuesday, May 15, 2018

Yesterday, the United States Supreme Court granted certiorari petitions, vacated judgments, and remanded 27 cases to various United States Courts of Appeals for further consideration in light of Sessions v. Dimaya, 138 S. Ct. 1204 (April 17, 2018) (holding that the residual clause of the federal code’s definition of “crime of violence,” 18 U.S.C. §16, as incorporated into the Immigration and Nationality Act’s definition of aggravated felony, was unconstitutionally vague).  See May 14, 2018 Orders list; see also prior post discussing Dimaya.  A list of the GVR’d cases, circuit of origin, procedural posture (direct appeal or § 2255), and question(s) presented is below. 

The Training Division plans to present a 4-part webinar series in June-August 2018 that will address the implications of Dimaya.  The Training Division provides litigation resources on predicate convictions, illegal entry and illegal reentry, immigration and offenses involving noncitizens, immigration consequences of conviction, as well as several webinars on strategies for defending noncitizens from basic to advanced issues.

United States v. Hernandez-Lara, No. 16-617 (9th Cir.) (gov’t direct appeal) (Whether 18 U.S.C. § 16(b), as incorporated into Sentencing Guidelines § 2L1.2(b)(1)(C), is unconstitutionally vague.).

Solano-Cruz v. United States, No. 16-6288 (5th Cir.) (direct appeal from Anders brief) (Whether 18 U.S.C. § 16(b), as incorporated into the definition of the term “aggravated felony” in 8 U.S.C. § 1326(b)(2), is unconstitutionally vague.)

Perdomo v. United States, No. 16-7214 (5th Cir.) (direct appeal) (Whether 18 U.S.C. § 16(b) is unconstitutionally vague because it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.).

Bello v. United States, No. 16-7667 (5th Cir.) (direct appeal) (Whether — after the Supreme Court’s decision in Johnson v. United States, which held the residual clause of the Armed Career Criminal Act’s “violent felony” definition to be unconstitutionally vague — 18 U.S.C. § 16(b) is unconstitutionally vague when it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.).

Alvaro-Velasco v. United States, No. 16-8058 (5th Cir.) (direct appeal) (Whether 18 U.S.C. § 16(b) is unconstitutionally vague because it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.).

Perez-Jimenez v. United States, No. 16-8453 (5th Cir.) (direct appeal) (Whether all facts that increase a defendant’s statutory maximum, including the fact of a prior conviction, must be pleaded in the indictment and either admitted by the defendant or proven to a jury beyond a reasonable doubt; (2) whether the Supreme Court should hold this petition for certiorari pending a decision in Sessions v. Dimaya.).  

Aguirre-Arellano v. United States, No. 16-8675 (5th Cir.) (direct appeal) (cert. petition unavailable; appears to be whether 18 U.S.C. § 16(b) is unconstitutionally vague).

Castaneda-Morales v. United States, No. 16-8734 (5th Cir.) (direct appeal) (Whether — after the Supreme Court’s decision in Johnson v. United States, which held the residual clause of the Armed Career Criminal Act’s “violent felony” definition to be unconstitutionally vague — 18 U.S.C. § 16(b) is unconstitutionally vague when it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.)

Glover v. United States, No. 16-8777 (5th Cir.) (direct appeal) (Whether the definition of the term “crime of violence” in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague.).

Davis v. United States, No. 16-8997 (5th Cir.) (direct appeal) (Whether 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague; (2) whether Hobbs Act robbery is a “crime of violence” as defined by 18 U.S.C. § 924(c)(3); and (3) whether a prior Texas conviction for burglary is a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e).).

Taylor v. United States, No. 16-8996 (8th Cir.) (§ 2255 review) (Whether a certificate of appealability should be granted to resolve a circuit split regarding whether the residual clause of 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague.).

Linares-Mazariego v. United States, No. 16-9319 (5th Cir.) (direct review) (Whether 18 U.S.C. § 16(b) is unconstitutionally vague.).

Larios-Villatoro v. United States, No. 16-9660 (5th Cir.) (direct review) (Whether — after the Supreme Court’s decision in Johnson v. United States, which held the residual clause of the Armed Career Criminal Act’s “violent felony” definition to be unconstitutionally vague — 18 U.S.C. § 16(b) is unconstitutionally vague when it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.).

United States v. Jenkins, No. 17-97 (7th Cir.) (gov’t direct appeal) (Whether the definition of the term “crime of violence” in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague.”).

United States v. Jackson, 17-651 (7th Cir.) (gov’t direct appeal) (Whether the definition of the term “crime of violence” in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague.).

Diaz-Esparza v. Sessions, No. 17-820 (5th Cir.) (direct appeal from 5th Cir BIA review) (Whether 18 U.S.C. § 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague.).  

Gomez-Ureba v. United States, No. 17-5283 (5th Cir.) (direct appeal) (Whether 18 U.S.C. § 16(b) is unconstitutionally vague; and (2) whether evading arrest with a motor vehicle is a “crime of violence” for purposes of 18 U.S.C. § 16(b).).

Garcia-Hernandez v. United States, No. 17-5305 (5th Cir.) (direct appeal) (Whether — after the Supreme Court’s decision in Johnson v. United States, which held the residual clause of the Armed Career Criminal Act’s “violent felony” definition to be unconstitutionally vague — 18 U.S.C. § 16(b) is unconstitutionally vague when it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.).

McCoy v. United States, No. 17-5484 (8th Cir.) (§2255 review) (Whether the residual clause of 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague in light of the Supreme Court’s holding in Johnson v. United States); (note, the government opposed certiorari arguing that the resolution of Dimaya will have no effect on the validity of McCoy’s § 924(c) conviction because McCoy’s predicate offense, voluntary manslaughter, independently satisfies the elements clause of § 924(c)(3)(A)).

Winters v. United States, No. 17-5495 (8th Cir.) (§ 2255 review) (Whether the residual clause of 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague in light of the Supreme Court’s holding in Johnson v. United States.).

Lin v. United States, No. 17-5767 (2d Cir.) (direct appeal) (1) Whether the analysis of whether a predicate act constitutes a “crime of violence” under the language of 18 U.S.C. § 924(c)(3)(B) must comport with the Supreme Court’s jurisprudence regarding the Armed Career Criminal Act’s residual clause, 18 U.S.C. § 924(e)(2)(B)(ii), as the U.S. Courts of Appeals for the 3rd, 7th and 9th Circuits have held, in conflict with the rulings of the U.S. Courts of Appeals for the 2nd, 6th, 8th and 11th Circuits; and (2) whether the “ordinary case” methodology survived Johnson v. United States for purposes of statutes other than the Armed Career Criminal Act, 18 U.S.C. § 924(e).).

Hernandez-Ramirez v. United States, No. 17-6065 (5th Cir.) (direct appeal) ((1) Whether the federal generic aggravated-assault offense requires more than a showing of mere recklessness for conviction; and (2) whether the definition of an “aggravated felony” in 18 U.S.C. § 16(b) is unconstitutionally vague.)

Eizember v. United States, No. 17-6117 (8th Cir.) (§ 2555 review) (Whether the U.S. Court of Appeals for the 8th Circuit erred when it denied a certificate of appealability regarding petitioner’s claim that the definition of a “crime of violence” in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague in light of Johnson v. United States.).

Enix v. United States, No. 17-6340 (11th Cir.) (§ 2255 review) ((1) Whether the residual clause of 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague; (2) whether conspiracy to commit Hobbs Act robbery has as an element “the use … of physical force against the person or property of another,” 18 U.S.C. § 924(c)(3)(A); and (3) whether the U.S. Court of Appeals fo the 11th Circuit’s rule that reasonable jurists could not debate an issue foreclosed by binding circuit precedent, even when a judge on the panel issued the binding precedent and subsequently stated that the panel’s decision may be erroneous, misapplies the standard articulated by the Supreme Court in Miller-El v. Cockrell and Buck v. Davis for determining whether a movant has made the threshold showing for a certificate of appealability.).

Ecourse-Westbrook v. United States, No. 17-6368 (11th Cir.) (§ 2255 review)

Issue: Whether the U.S. Court of Appeals for the 11th Circuit erred when it denied a certificate of appealability regarding petitioner’s claim that the definition of a “crime of violence” in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague in light of Johnson v. United States.).

Orozco v. Sessions, 17-6628 (5th Cir.) (direct appeal from 5th Cir BIA review) ( Whether 18 U.S.C. § 16(b), as applied to the definition of an aggravated felony in the Immigration and Naturalization Act, is constitutional.).

Carreon v. United States, 17-6926 (5th Cir.) (§ 2255 review) (Whether the U.S. Court of Appeals for the 5th Circuit erred when it denied a certificate of appealability regarding petitioner’s claim that the definition of a “crime of violence” in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague in light of Johnson v. United States.).

Casabon-Ramirez v. United States, No. 17-7183 (5th Cir.) (direct appeal) (Whether 18 U.S.C. § 16(b) is unconstitutionally vague because it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.).