United States v. Gonzalez-Longoria

• Decision Date: 05 August 2016
• Docket Number: No. 15-40041,15-40041
• Citation: 831 F.3d 670
• Parties: United States of America, Plaintiff-Appellee v. Gregorio Gonzalez-Longoria, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

831 F.3d 670

United States of America, Plaintiff-Appellee

v.Gregorio Gonzalez-Longoria, Defendant-Appellant

No. 15-40041

United States Court of Appeals, Fifth Circuit.

August 5, 2016

John Patrick Taddei, Esq., U.S. Department of Justice, Washington, DC, Renata Ann Gowie, John A. Reed, U.S. Attorney's Office, Houston, TX, for Plaintiff-Appellee.

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

Before STEWART, Chief Judge, and JOLLY, DAVIS, JONES, SMITH, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, and COSTA, Circuit Judges.

STEPHEN A. HIGGINSON

, Circuit Judge, joined by DAVIS, JONES, SMITH, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, and COSTA, Circuit Judges:

This case presents the question whether the “crime of violence” definition provided by 18 U.S.C. § 16(b)

, when incorporated by reference into United States Sentencing Guidelines § 2L1.2(b)(1)(C), is unconstitutionally vague on its face in light of Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), in which the Court struck as unconstitutionally vague the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii). We hold that 18 U.S.C. § 16(b) is not unconstitutionally vague.

I.

In January 2008, Dallas police responded to a disturbance in the street between Gonzalez-Longoria and his common-law wife, Debra Armstrong. According to Armstrong, the two had been fighting about money when Gonzalez-Longoria became upset, grabbed her by the collar, pushed her to the ground, and then, while she was on the ground, kicked her several times in the leg. For this incident, Gonzalez-Longoria was convicted of the misdemeanor offense Assault-Family Violence, in violation of Tex. Penal Code § 22.01(a)(1)

.

Three months later, in April 2008, Gonzalez-Longoria fought with Armstrong again, this time as she tried to board a bus. According to Armstrong, Gonzalez-Longoria struck Armstrong on the face, and she fell to the ground. For this incident, Gonzalez-Longoria was convicted of the felony offense Assault Causing Bodily Injury with a Prior Conviction of Family Violence, in violation of Tex. Penal Code § 22.01(b)(2)

. Thereafter, Gonzalez-Longoria, a Mexican citizen, was deported to Mexico.

Six years later, in June 2014, police officers in Combes, Texas, encountered Gonzalez-Longoria walking along the highway. He admitted that he was present in the United States illegally, and the officers arrested him. Thereafter, he pled guilty to being unlawfully present in the United States, in violation of 8 U.S.C. § 1326

. During sentencing, the district court applied an eight-level sentencing enhancement on the ground that his prior Texas conviction for Assault Causing Bodily Injury with a Prior Conviction of Family Violence was a “crime of violence” and thus constituted an “aggravated felony” under United States Sentencing Guidelines § 2L1.2(b)(1)(C). That guidelines provision counts as aggravated felonies crimes that meet the “crime of violence” definition provided by 18 U.S.C. § 16(b). See U.S.S.G. § 2L1.2, cmt. n.3(A). At sentencing, Gonzalez-Longoria objected to the enhancement, arguing that 18 U.S.C. § 16(b) was unconstitutionally vague. The district court overruled that objection, and his others, and sentenced him to twenty-seven months' imprisonment and three years' supervised release. Gonzalez-Longoria appealed.

While his appeal was pending, the Supreme Court issued Johnson

, in which it held that the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague in violation of the Due Process Clause of the Fifth Amendment. In supplemental briefing, Gonzalez-Longoria argued that the similarities between the Armed Career Criminal Act's residual clause and the “crime of violence” definition provided by 18 U.S.C. § 16(b) mean that § 16(b) must likewise be struck as unconstitutionally vague. The panel agreed, and issued an opinion vacating Gonzalez-Longoria's sentence on the ground that 18 U.S.C. § 16(b), which formed the basis of his eight-level aggravated-felony sentencing enhancement, is unconstitutionally vague in light of Johnson.¹

United States v. Gon zalez – Longoria , 813 F.3d 225 (5th Cir. 2016)

. The government petitioned for rehearing en banc, and we granted the petition.²

United States v. Gonzalez

–

Longoria , 815 F.3d 189 (5th Cir. 2016).

II.

We review de novo a district court's application of the Sentencing Guidelines. United States v. Coleman , 609 F.3d 699, 708 (5th Cir. 2010)

. Whether a statute is unconstitutionally vague is a question of law, which we likewise review de novo. Id. at 706.

III.

A.

Gonzalez-Longoria challenges the sentencing enhancement that he received under section 2L1.2(b)(1)(C) of the Sentencing Guidelines, which provides for an eight-level enhancement to a defendant's base offense level if the defendant was deported following a conviction for an “aggravated felony.” The application note to that section of the guidelines provides that “aggravated felony” has “the meaning given that term in 8 U.S.C. 1101(a)(43)

.” U.S.S.G. § 2L1.2, cmt. n.3(A). That statutory provision, in turn, defines aggravated felonies to include, among other things, “crime[s] of violence ... as defined in section 16 of Title 18... for which the term of imprisonment [is] at least one year.” 8 U.S.C. 1101(a)(43)(F). As defined by 18 U.S.C. § 16(b), a “crime of violence” includes 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 may be used in the course of committing the offense.” It is this definition that Gonzalez-Longoria argues is unconstitutionally vague.

B.

The Fifth Amendment's Due Process Clause protects against criminal convictions based on impermissibly vague statutes. “[T]he Government 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.” Johnson , 135 S.Ct. at 2556

. “These principles apply not only to statutes defining elements of crimes, but also to statutes fixing sentences.”³

Id. at 2557

. When a provision is so vague that it specifies “no standard of conduct ... at all,” then the provision “simply has no core,” Smith v. Goguen , 415 U.S. 566, 578, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974) (quoting Coates v. City of Cincinnati , 402 U.S. 611, 614, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971) ), and will be vague as applied to anyone—that is, it will be facially vague.

In Johnson

, the Supreme Court faced a vagueness challenge to the Armed Career Criminal Act's definition of violent felonies. 135 S.Ct. at 2556. The Act includes a statutory sentencing enhancement for violators with three or more earlier convictions for a “violent felony.” The Act defines violent felonies to include, among other things, “burglary, arson, or extortion, [offenses] involv[ing] use of explosives, or [offenses] otherwise involv[ing] conduct that presents a serious potential risk of physical injury to another .” 18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added). The italicized portion is known as the “residual clause.” Johnson , 135 S.Ct. at 2556.

In Johnson

, the Court highlighted two features of the Act's residual clause that together make the clause unconstitutionally vague. Id. at 2557. First, the Court observed that “the residual clause leaves grave uncertainty about how to estimate the risk posed by a crime” under the categorical approach required by Taylor v. United States , 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).⁴

Id. Second, the Court noted that the Act's “imprecise ‘serious potential risk’ standard” was difficult to apply. Id. at 2558.

Gonzalez-Longoria argues that the same two problems infect 18 U.S.C. § 16(b)

, because it too must be interpreted under the categorical approach, see

Perez

–

Munoz v. Keisler , 507 F.3d 357, 361 (5th Cir. 2007), and it too contains an imprecise risk standard. These defects, he contends, make 18 U.S.C. § 16(b) unconstitutionally vague on its face. While Gonzalez-Longoria is correct that 18 U.S.C. § 16(b) shares these two features with the Armed Career Criminal Act's residual clause, neither feature causes the same level of indeterminacy in the context of 18 U.S.C. § 16(b).

The Court's first concern in Johnson

, about the “grave uncertainty about how to estimate the risk posed by a crime,” can be read broadly, as a rejection of the categorical approach whenever it is combined with any degree of risk assessment, or narrowly, as a long-considered ill-ease and eventual repudiation of the categorical approach in the specific context of the Armed Career Criminal Act's residual clause.⁵ The narrower reading is more sound. Although both the Act's residual clause and 18 U.S.C. § 16(b)

similarly require a risk assessment under the categorical approach, the inquiry that a court must conduct under 18 U.S.C. § 16(b) is notably more narrow. The Act's residual clause requires courts, in imagining the ordinary case, to decide whether the ordinary case would present a “serious potential risk of physical injury .” 18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added). In contrast, 18 U.S.C. § 16(b) requires courts to decide whether the ordinary case “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. § 16(b) (emphasis added). Risk of physical force is more definite than risk of physical injury; further, by requiring that the risk of physical force arise “in the course of committing” the offense, 18 U.S.C. § 16(b) does not allow courts to consider conduct or events occurring after the crime is complete.

As the Johnson

majority observed, the focus on potential injury in the ...