United States v. Gonzalez-Longoria

• Decision Date: 10 February 2016
• Docket Number: No. 15–40041.,15–40041.
• Citation: 813 F.3d 225
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Gregorio GONZALEZ–LONGORIA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

813 F.3d 225

UNITED STATES of America, Plaintiff–Appellee

v.Gregorio GONZALEZ–LONGORIA, Defendant–Appellant.

No. 15–40041.

United States Court of Appeals, Fifth Circuit.

Feb. 10, 2016.

Renata Ann Gowie, John A. Reed(argued), Assistant U.S. Attorneys, U.S. Attorney's Office, Houston, TX, for Plaintiff–Appellee.

Evan Gray Howze, Marjorie A. Meyers, Federal Public Defender, Michael Lance Herman, Assistant Federal Public Defender, Margaret Christina Ling (argued), Assistant Federal Public Defender, Federal Public Defender's Office, Houston, TX, for Defendant–Appellant.

Before JOLLY, HIGGINSONand COSTA, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In this appeal, we address for the first time whether 18 U.S.C. § 16' s statutory definition of "crime of violence" is unconstitutionally vague. We consider this question in the light of the Supreme Court's recent holding that a similar provision of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). In Johnson, the Court held that the ACCA violated the constitutional prohibition against vague criminal statutes by defining "violent felony" as any crime that "is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. " 18 U.S.C. § 924(e)(2)(B). Section 16contains a similar definition: a "crime of violence" is "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 Seventh and Ninth Circuits have both held that this language is sufficiently similar to the ACCA's language to suffer the same unconstitutional fate. United States v. Vivas–Ceja, 808 F.3d 719, 720 (7th Cir.2015); Dimaya v. Lynch, 803 F.3d 1110 (9th Cir.2015). We agree, and accordingly hold § 16unconstitutional.

I.

Gonzalez–Longoria pled guilty to and was sentenced for being illegally present in the United States in violation of 8 U.S.C. § 1326. During sentencing, the court determined that Gonzalez–Longoria had previously committed an "aggravated felony" under USSG § 2L1.2(b)(1)(C)and applied an eight-level sentencing enhancement. " '[A]ggravated felony' has the meaning given that term in 8 U.S.C. [§ ] 1101(a)(43)." Section 1101(a)(43), in turn, defines an "aggravated felony" as any of a list of offenses, including "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 is at least one year." Section 16defines "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.

The government does not contend that Gonzalez–Longoria's 2008 conviction qualified under § 16(a). Thus, Gonzalez–Longoria's past offense qualifies as an "aggravated felony" only if it qualifies as a § 16(b)"crime of violence," as the district court found.¹

Gonzalez–Longoria argued that the § 16definition of "crime of violence" is unconstitutionally vague. The district court disagreed and sentenced Gonzalez–Longoria to twenty-seven months of imprisonment and three years of supervised release. Gonzalez–Longoria appealed, challenging the facial constitutionality of § 16.

II.

As an initial matter, we consider whether Gonzalez–Longoria can validly challenge the constitutionality of § 16. Gonzalez–Longoria received a sentencing enhancement under USSG § 2L1.2(b)(1)(C). If Gonzalez–Longoria had challenged § 2L1.2as unconstitutionally vague, we would have to determine whether guideline provisions are immune from vagueness challenges, as the Eleventh Circuit recently held.² We have not previously decided this issue in a published case, though unpublished cases have agreed with the approach adopted by the Eleventh Circuit. See, e.g., United States v. Velasquez, 2007 WL 2437961 (5th Cir.2007)("[The defendant]'s unconstitutional vagueness argument is unfounded because it challenges a [s]entencing [g]uideline, not a criminal statute.").³

Gonzalez–Longoria, however, does not challenge the constitutionality of § 2L1.2(b)but instead challenges § 16. Thus, we need not address the question of whether guideline provisions are subject to vagueness challenges, as both Gonzalez–Longoria and the government contend them to be. Instead, we limit our analysis to the situation before us: If § 16is unconstitutional, it becomes a legal nullity, and can have no further effect. Accordingly, § 2L1.2(b)would not be able to incorporate that nullity by reference and Gonzalez–Longoria's sentence should not have been enhanced.

The government urges that focusing on § 16's incorporation by reference risks creating "an untenable distinction because it would treat differently a [g]uideline that reprints statutory language from a [g]uideline that, rather than copy the text, simply refers to a statute by number." Gov't letter br. at 2. This is true. One consequence of our holding is § 2L1.2(which incorporates § 16by reference) could be treated differently from § 4B1.2 (which mirrors the language held invalid in Johnson ). To avoid this difficulty, the government argues that we should subject all guideline provisions to vagueness challenges. Perhaps this argument is correct. On the other hand, some reasons exist to treat incorporation by reference differently from copying the text: when the sentencing commission incorporates a statutory provision by reference, it ties the guideline to any future legislative or judicial changes to that statute, ensuring uniformity. Conversely, when the sentencing commission copies the text of a statute without incorporating the statute by reference, it fixes the meaning of the guideline to that text—future amendments of the statute would be irrelevant to the guideline. Arguably, this decision to incorporate by reference or to copy text should determine the availability of a vagueness challenge. In any event, however, we leave these questions for another day and hold only that, when a guideline incorporates a statute by reference, a defendant sentenced under that guideline may permissibly challenge the statute's constitutionality.⁴ We turn, therefore, to the question of whether § 16is unconstitutionally vague.

III.

Johnson sets the background for this inquiry:

The Fifth Amendment provides that "[n]o person shall ... be deprived of life, liberty, or property, without due process of law." ... [T]he [g]overnment violates this guarantee by taking away someone's life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement. Kolender v. Lawson, 461 U.S. 352, 357–358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983).... These principles apply not only to statutes defining elements of crimes, but also to statutes fixing sentences. United States v. Batchelder, 442 U.S. 114, 123, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979).

Johnson, 135 S.Ct. at 2556. A facial vagueness challenge "presents a pure question of law" and we therefore review it de novo. United States v. Clark, 582 F.3d 607, 612 (5th Cir.2009).

A.

The government argues that we should not reach the merits of Gonzalez–Longoria's facial vagueness challenge because § 16is not vague as applied to him in the circumstances of his sentence. The government correctly points out that a defendant cannot raise a vagueness challenge to a statute simply because some hypothetical other defendant's conduct might create a "vague application" of the statute. Gov't Supp. Br. 9. This restriction, however, does not mean that every defendant must first show that a statute is vague as applied to him as a predicate to any further argument of facial vagueness. Instead, the government's argument is best taken as illustrating the high bar for facial vagueness challenges. As the government acknowledges, a statute can be "void for vagueness because of its inherent inability to produce 'evenhanded, predictable, or consistent' applications." Gov't Supp. Br. at 9 (quoting Johnson, 135 S.Ct. at 2563). Gonzalez–Longoria argues that exactly this sort of "inherent inability" infects § 16. To determine whether he is correct, we turn to the Supreme Court's recent decision in Johnson v. United States.

B.

In 2007, Samuel Johnson was convicted of unlawfully possessing a short-barreled shotgun; in Johnson's subsequent prosecution for being a felon in possession of a firearm, the government argued that the 2007 crime met the ACCA's definition of "violent felony." The ACCA defined "violent felony" as any crime that "is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another "; the Court struck down this final clause, the residual clause, as unconstitutionally vague.

The Court held that the residual clause is vague because it contained "[t]wo features." It required (1) that courts imagine an "ordinary case" and (2) that courts then adjudicate that "ordinary case" under an "imprecise standard." Neither of these "features" is self-explanatory; we address each in turn.

First, however, a note concerning terms: the Court uses the term "ordinary case." As explained below, by "ordinary case" the Court refers to a hypothetical case based upon hypothetical facts, standard to the crime, instead of the defendant's actual criminal conduct. In other words, we understand the Court's use of "ordinary case" to refer to the archetypical conduct associated with the crime. Consequently, we will sometimes use the term "archetypical case"...