United States v. Kimbrough

• Decision Date: 26 June 2018
• Docket Number: No. 3:15–cr–00147,3:15–cr–00147
• Citation: 319 F.Supp.3d 912
• Parties: UNITED STATES of America, Plaintiff, v. Terrance KIMBROUGH, Defendant.
• Court: U.S. District Court — Middle District of Tennessee

319 F.Supp.3d 912

UNITED STATES of America, Plaintiff,

v.Terrance KIMBROUGH, Defendant.

No. 3:15–cr–00147

United States District Court, M.D. Tennessee, Nashville Division.

Filed June 26, 2018

Sunny A.M. Koshy, Van S. Vincent, Assistant U.S. Attorney, Office of the United States Attorney, Nashville, TN, for Plaintiff.

Kathleen G. Morris, Nashville, TN, for Defendant.

MEMORANDUM OPINION

WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE

The Due Process Clause of the Fifth Amendment is violated when the federal government "tak[es] 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 v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 2556, 192 L.Ed.2d 569 (2015) (citing Kolender v. Lawson, 461 U.S. 352, 357–358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) ). Such was found to be the case in Johnson where the residual clause of the Armed Career Criminal Act of 1984 ("ACCA") defined the term "violent felony" to include any felony that "involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B). It was also the case in Sessions v. Dimaya, ––– U.S. ––––, 138 S.Ct. 1204, 1210, 200 L.Ed.2d 549 (2018) where the Immigration and Nationality Act ("INA") defined "aggravated felony" by referencing 18 U.S.C. § 16(b)'s "crime of violence" definition that includes a felony which, "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 question now before the Court in the form of Terrance Kimbrough's Second Amended Motion to Dismiss (Doc. No. 472) is whether the same should be said about 18 U.S.C. § 922(g)(3). That statute makes it unlawful for any person "who is an unlawful user of or addicted to any controlled substance ... to or possess in or affecting commerce, any firearm or ammunition[.]"

Having fully considered the applicable law and the arguments of the parties, the Court finds that 18 U.S.C. § 922(g)(3) is not facially void for vagueness and, accordingly, Kimbrough's Motion to Dismiss will be denied. That denial will be without prejudice to Kimbrough asserting an "as applied" challenged should the evidence at trial so warrant.

I. Johnson and Dimaya

Johnson involved a Minnesota statue that made it unlawful to posses a sawed-off shot gun, and was the fifth time the Supreme Court addressed the residual clause of the ACCA in an "attempt[ ] to discern its meaning." 135 S.Ct. at 2556. Twice it found that a state law was covered by the clause: James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (Florida's offense of attempted burglary); and Sykes v. United States, 564 U.S. 1, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011) (Indiana's offense of vehicular flight from police). Twice it found the state law not covered by the clause: Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008) (New Mexico's offense of driving under the influence); and Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009) (Illinois' offense of failing to report to prison). "Nine years' experience trying to derive meaning from the residual clause convince[d]" the Supreme Court that it "ha[d] embarked upon a failed enterprise" because the clause was "shapeless" and required "guesswork." Johnson, 135 S.Ct. at 2560.

In the Supreme Court's view, "[t]wo features of the residual clause conspire[d] to make it unconstitutionally vague" Id. at 2557. On the one hand, it left "grave uncertainty about how to estimate the risk posed by a crime" because it "tie[d] the judicial assessment of risk to a judicially imagined ‘ordinary case’ of a crime, not to real-world facts or statutory elements." Id. On the other hand, the clause left "uncertainty about how much risk it takes for a crime to qualify as a violent felony." Id.

In addition to those two features, the Supreme Court in Johnson observed that " ‘persistent efforts ... to establish a standard can provide evidence of vagueness’ " and its "repeated attempts and repeated failures to craft a principled and objective standard out of the residual clause confirm its hopeless indeterminacy." Id. Indeed, the Supreme Court was "not the only one that has had trouble making sense of the residual clause" as evidenced by the "numerous splits among the lower federal courts." Id. at 2558–59.

Johnson was "a straightforward decision, with equally straightforward application" to Section 16(b)'s residual "crime of violence" clause at issue three years later in Dimaya, 138 S.Ct. at 1213. That clause had the "same two features combined in the same constitutionally problematic way." Id. Just as in Johnson it "call[ed] for a court to identify a crime's ‘ordinary case’ in order to measure the crime's risk." Id. at 1215. "And § 16(b) also possesse[d] the second fatal feature of ACCA's residual clause: uncertainty about the level of risk that makes a crime ‘violent,’ " only with "substantial risk" substituted for "serious potential risk." Id.

II. Application to 18 U.S.C. § 922(g)(3)

" Johnson was no doubt a sea-change, with far-reaching precedential effects." Shuti v. Lynch, 828 F.3d 440, 444 (6th Cir. 2016). Unlike in Dimaya, however, it has no straightforward application to 18 U.S.C. § 922(g)(3) because this statute does not contain the same infirmities identified in Johnson. The Court reaches this conclusion for a number of reasons.

First, Johnson and Dimaya were decided in the context of the "categorical approach" utilized by the Supreme Court that requires looking at the nature of the offense generally. See, Johnson, 135 S.Ct. at 2256–57 (citation omitted) (stating that, under the categorical approach, "a court assesses whether a crime qualifies as a violent felony ‘in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion’ "); Dimaya, 138 S.Ct. at 1211 (citation omitted) (observing that the question "is not whether ‘the particular facts' underlying a conviction posed the substantial risk’ " but "whether ‘the ordinary case’ of an offense poses the requisite risk’ "). "The Court's analysis in Johnson thus cast no doubt on the many laws that ‘require gauging the riskiness of conduct in which an individual defendant engages on a particular occasion.’ "

Welch v. United States, ––– U.S. ––––, 136 S.Ct. 1257, 1262, 194 L.Ed.2d 387 (2016) (quoting Johnson, 135 S.Ct. at 2560 ). That is, "[t]he residual clause failed not because it adopted a ‘serious potential risk’ standard but because applying that standard under the categorical approach required courts to assess the hypothetical risk posed by an abstract generic version of the offense." Id. This is supported by the statement in Johnson that "[i]t is one thing to apply an imprecise serious potential risk standard to real-world facts; it is quite another to apply it to a judge-imagined abstraction." Johnson, 135 S.Ct. at 2558.

Second, and relatedly, when a criminal law or statute uses potentially amorphous phraseology such as "grave risk," "substantial risk," "unreasonable risk," or, as in this case, "unlawful user" does not automatically make it unconstitutionally vague. Noting that " ‘[t]he law is full of instances where a man's fate depends on his estimating rightly ... some matter of degree,’ " the Supreme Court in Johnson explained that many laws

require gauging the riskiness of conduct in which an individual defendant engages on a particular occasion. As a general matter, we do not doubt the constitutionality of laws that call for the application of a qualitative standard such as "substantial risk" to real-world conduct.

Id. at 2561 (quoting Nash v. United States, 229 U.S. 373, 377, 33 S.Ct. 780, 57 L.Ed. 1232 (1913) ). Put simply, Johnson does not invalidate everything that could be described as vague." In re Clayton, 829 F.3d 1254, 2016 WL 3878156, at *7 (11th Cir. July 18, 2016) (Martin, J. concurring); see also Holder v. Humanitarian Law Project, 561 U.S. 1, 21, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010) (in the context of a statute criminalizing the provision of material support to terrorist, "training" and "expert advice or assistance" are not vague); United States v. Williams, 553 U.S. 285, 298–99, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) (in the context of a statute criminalizing the solicitation of child pornography, the phrases "in a manner that reflects the belief" and "in a manner ... that is intended to cause another to believe" are not vague).

For example, the definition of a "crime of violence," which includes a felony "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(c)(3), is not void for vagueness, notwithstanding Johnson. United States v. Taylor, 814 F.3d 340, 376 (6th Cir. 2016). "Unlike the ACCA and INA, which require a categorical approach to stale predicate convictions, 18 U.S.C. § 924(c) is a criminal offense that requires an ultimate determination of guilt beyond a reasonable doubt—by a jury, in the same proceeding. This makes all the difference." Shuti v. Lynch, 828 F.3d 440, 449 (6th Cir. 2016) ; see also, United States v. St. Hubert, 883 F.3d 1319, 1336 (11th Cir. 2018) (noting that although § 16(b) at issue in Dimaya and 924(c) are similarly worded, the former "applies to remote prior convictions, rather than to contemporaneous companion offenses charged in the same indictment and requiring a specified nexus to the use, carrying, or possession of a firearm").

Count 6 of the Second Superseding Indictment returned November 15, 2017 charges Kimbrough with being "an unlawful user of a controlled substance" who possessed a Beretta semi-automatic pistol and Winchester...