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The Supreme Court is back in action and is set to further clarify the effect of Johnson on statutes other than the Armed Career Criminal Act.  Last Friday, the Supreme Court granted Cert. in Lynch v. Dimaya.  Dimaya asks whether the “residual clause” in 18 U.S.C. 16(b) is unconstitutionally vague.  18 U.S.C. 16(b) is incorporate into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States. Dimaya continues the streak of cases, including Welch and Beckles, dealing with the fallout of last years Johnson ruling.

The twist in the Dimaya case is that the residual clause differs slightly from that found in the Armed Career Criminal Act.  The residual clause at issue in Dimaya and found in 18 U.S.C. 16(b), states:

…[A]ny 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.

Compare that language to the residual clause found in the Armed Career Criminal Act, 18 U.S.C. 924(e), which says:

[A]ny crime punishable by imprisonment for a term exceeding one year…that..otherwise involves conduct that presents a serious potential risk of physical injury to another.

Clearly, the language of each clause differs in some measurable way.  However, the 9th Circuit, in a divided panel, determined that they were sufficiently similar to apply the reasoning of Johnson in striking down the clause.  There is a definitive circuit split on the issue that likely prompted Cert. in this case.  Agreeing with the 9th Circuit, the decision of the Seventh Circuit in United States v. Vivas–Ceja, 808 F.3d 719 (2015), and an intervening decision of the Sixth Circuit, Shuti v. Lynch, No. 15-3835, 2016 WL 3632539 (July 7, 2016) both agree that Johnson’s reasoning applies.  However, the Fifth Circuit ruled contrary to the 9th Circuit in United States v. Gonzalez-Longoria, No. 15-40041, 2016 WL 4169127, at *1-*2 (Aug. 5, 2016), finding that 16(b)’s residual clause was not vague.

Adding to the intrigue of this particular issue is that Court’s have also taken up the question of whether the residual clause found in 18 U.S.C. 924(c), which is identical to that found in 16(b), is constitutionally vague.  Most recently, the 2nd Circuit decided United States v. Hill, No. 14-3872-cr, 2016 WL 4120667, at *1, *7-*12 (Aug. 3, 2016), finding that the residual clause in 924(c) passes muster.  Much like 16(b), the Supreme Court will soon be called on to decide this issue in relation to 924(c).  That issue could have a sweeping impact on the government’s ability to charge gun crimes.  If you are charged with a 924(c) count you should file a motion contesting the issue and preserve your challenge for appeal.

No matter the outcome, litigation in this area will continue for the next several terms and additional Cert. grants may be coming in relation to the 924(c) issue.  Keep an eye on this subject because it will probably lead to significant findings impacting many hundreds, if not thousands, of defendants.