In the short term, federal courts must now decide whether other federal laws that use the categorical approach are also void for vagueness. Those laws include: 18 U.S.C. § 16(b), 18 U.S.C. § 924(c), and 18 U.S.C. § 3559(c), as well as several Federal Sentencing Guidelines. (For an interesting argument that Johnson also render’s California’s second degree felony murder rule unconstitutional, see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2674747)Johnson and Other Federal StatutesThere are several federal statutes that include language that is similar, but not identical to, the ACCA residual clause.

INTRODUCTIONOn January 17, 2017, the Supreme Court of the United States heard oral arguments in Lynch v. Dimaya, 15-1498. The case concerns whether 18 U.S.C. 16(b) is unconstitutionally vague as it is incorporated into the immigration laws at section 101(a)(43)(F) of the Immigration and Nationality Act (INA). Subsequent to those arguments, Attorney General Jeff Sessions replaced former Attorney General Loretta Lynch.

By Sarah FlinnAgreeing with both the Seventh and Ninth Circuits, the U.S. Court of Appeals for the Fifth Circuit concluded that the definition of crime of violence in 18 U.S.C. § 16(b) is unconstitutionally vague. United States v. Gonzalez-Longoria, No. 15-40041, 2016 WL 537612, at *1 (5th Cir. February 10, 2016).

By Sarah FlinnRelying on the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), the U.S. Court of Appeals for the Seventh Circuit recently held that the federal definition of “crime of violence” as defined in 18 U.S.C. § 16(b) is unconstitutionally vague. United States v. Vivas-Ceja, 808 F.3d 719, 720 (7th Cir. 2015).

The Department of Homeland Security argued that the Fifth Circuit’s recent decision in United States v. Harrimon, 568 F.3d 531 (5th Cir. 2009), held that Texas evading arrest does constitute a COV. Section 101(a)(43)(F) defines a COV according to its definition at 18 U.S.C. § 16. Section 16 of Title 18 of the U.S. Code provides:The term “crime of violence” means— (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (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.

Ultimately this disagreement proved not to affect the outcome.INA § 101(a)(43)(F) defines “crime of violence” by referencing 18 U.S.C. § 16 which, in turn, defines COV as(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or prop­erty of another, or (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.The BIA noted in a footnote, “For purposes of 18 U.S.C. § 16(a), the phrase ‘use of physical force’ means the use of violent force.”

Under section 101(a)(43)(F) of the Immigration and Nationality Act (INA), a “crime of violence” is an immigration aggravated felony. Section 101(a)(43)(F) incorporates the Federal criminal statute, 18 U.S.C. 16, for the definition of an “aggravated felony.” 18 U.S.C. 16 contains two clauses, 16(a) and (b).

The Tenth Circuit found the BIA’s reasoning “persuasive.” Damaso-Mendoza, No. 10-9579, slip op. at 6.INA § 101(a)(43)(F) defines “crime of violence” by referencing the definition located at 18 U.S.C. § 16. In turn, § 16 provides that an offense is a crime of violence if it is:(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (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.

18 U.S.C. § 924(e)(2)(B).In comparison, INA § 101(a)(43)(F) defines a crime of violence by referencing 18 U.S.C. § 16 which, in turn, defines crime of violence as “(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or prop­erty of another, or (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.”While the first prong of the ACCA’s definition and the definition used by the INA are almost identical, there is greater difference between the second prongs of each definition.

This case concerned an LPR who DHS alleged was removable pursuant to INA § 101(a)(43)(F), the provision that states that an aggravated felony is “a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment at least one year.” In turn, 18 U.S.C. § 16 defines a crime of violence as: “(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (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.”As in all COV analyses, the key to the Ninth Circuit’s decision was an inquiry of whether the California statutes categorically fall into either of the two subsections of 18 U.S.C. § 16. In performing a categorical analysis, the Ninth Circuit first examined the text of the statutes under which Prakash was actually convicted.