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May 29, 2018 Practice Points

Vagueness Surrounding “Crimes of Violence” Opens Door for Defense Objections to Sentencing Guidelines Calculations

Following the recent U.S. Supreme Court decision in Sessions v. Dimaya, federal practitioners should object to criminal history points added for a conviction of a “crime of violence.”

By Sheena Foye and James R. Wyrsch – May 29, 2018

On its face, Sessions v. Dimaya is an immigration case, but the decision will likely impact federal criminal law. The defendant in this case, Mr. Dimaya, was a Philippines native who became a lawful permanent resident of the United States at 13 years old. He was convicted twice of first degree residential burglary in California after becoming a lawful permanent resident. Following his second burglary conviction, the United States sought to deport Dimaya. The government's basis for the deportation was that Dimaya committed an “aggravated felony” under immigration law. A full overview of what constitutes an aggravated felony in the Immigration and Nationality Act (INA) can be found at 8 U.S.C. § 1101(a) (43). The code section that is relevant to this discussion is 8 U.S.C. § 1101(a)(43)(f), which states: “The term aggravated felony means 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.” 18 U.S.C.A. § 16 states the following:

“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 offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another maybe used in the course of committing the offense”

Subsection b of 18 U.S.C.A. § 16 is often referred to as the “residual clause.” An immigration judge for the Board of Immigration Appeals held that California's first-degree residential burglary statute was a “crime of violence” under 18 U.S.C.A. §16(b), the residual clause, and therefore Dimaya was subject to deportation for committing an aggravated felony. Dimaya appealed this finding to the Ninth Circuit. While his appeal was pending before the Ninth Circuit, the U.S. Supreme Court, in Johnson v. United States, found that the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)—which defined “violent felony” as any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another”—was unconstitutional. Johnson v. U.S., 135 S. Ct. 2551 (2015). The Johnson Courtheld the ACCA unconstitutionally “void for vagueness” under the Fifth Amendment's Due Process Clause.

Based on the ruling in Johnson, the U.S. Court of Appeals for the Ninth Circuit overturned the government’s deportation order for Dimaya, holding that the definition of an aggravated felony under 8 U.S.C. § 1101(a)(43)(f), which includes the residual clause of 18 U.S.C.A. § 16(b), was unconstitutional in that it was too vague to be enforced, i.e., it was void for vagueness. The government appealed the ruling by the Ninth Circuit.

When the Dimaya case was first argued before the Supreme Court in early 2017, there were only eight justices on the Court. The case ended in a split decision and therefore the case was reargued after Justice Gorsuch joined the Court in October 2017. On April 17, 2018, The U.S. Supreme Court upheld the Ninth Circuit's decision that the definition of a “crime of violence” under 8 U.S.C. § 1101(a)(43)(f) was unconstitutionally vague. The majority opinion referenced the majority opinion from Johnson to justify that the language of the residual clause in 8 U.S.C. § 1101(a)(43)(f) was sufficiently vague.

So what does Sessions v. Dimaya, an immigration case on its face, mean for federal criminal practitioners? The Sessions case could have an immediate impact on the criminal history scores of defendants under the Federal Sentencing Guidelines. Section 4A1.1(e) of the Federal Sentencing Guidelines states the following:

Add 1 point for each prior sentence resulting from a conviction of a crime of violence that did not receive any points under (a), (b), or (c) above because such sentence was treated as a single sentence, up to a total of 3 points for this subsection.

Additionally, section 4B1.1(a) defines a “career offender,” in pertinent part, as a defendant who “has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” Section 4B1.1(b) goes on to state that a career offender's criminal history category should not be lower than a Category VI.

Sections 4A1.2(p) and 4B1.2 of the Federal Sentencing Guidelines define “crime of violence” as the following:

“The term “crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—

(1) Has an element of use, attempted use, or threatened use of physical force against the person of another, or

(2) Is a burglary of a dwelling, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”

The definition of “crime of violence” in the Federal Sentencing Guidelines has a residual clause that closely mirrors the residual clause that the Sessions court held to be unconstitutional in 8 U.S.C. § 1101(a)(43)(f) and 18 U.S.C.A. §16(b). The arguments made in Sessions and Johnson are easily transferrable to the Federal Sentencing Guidelines. Practitioners should be objecting to criminal history enhancements for “crimes of violence” on the basis that the definition of “crime of violence” under the Federal Sentencing Guidelines is unconstitutionally vague. This objection could take years off of clients’ custodial sentences.


Sheena Foye and James R. Wyrsch are with Wyrsch Hobbs Mirakian P.C. in Kansas City, Missouri.

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