PRE & POST CONVICTION LAW PUBLICATION
IMPORTANT SUPREME COURT UPDATE
SESSIONS, ATTORNEY GENERAL v. DIMAYA
Case No. 15–1498.
Decided April 17, 2018
The case of Sessions v. Dimaya, decided April 17, 2018 case number 15-1498, was a good decision on important issues. The court in an 8-1 decision determined that the statute which creates a minimum mandatory sentence of 15 years when a prior crime of violence occurs under the Armed Career Criminal Act is void for vagueness. The court determined that the statement regarding crimes of violence in the residual clause of the statue was not clear in defining a crime of violence causing courts to have to determine these factors and resulting in inconsistent decisions throughout the legal system.
In the statute a crime of violence is described in two parts, one as “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 courts of committing the offense.” The court decided that this language is to open to inconsistent determinations as to what a crime of violence is. (18 USC 16 (a) and (b)). The second portion of the act (ACCA) states that any violent felony is any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” (18 USC 924(e)(2)(B)). This language is too vague to determine what congress intended as a crime of violence to trigger the statutory application and sentence enhancement.
What this all means is that people have accepted plea agreements when the threat of this enhancement was presented thus coercing a plea on the premise of a void for vagueness statute. Here successive habeas petitions may apply along with 28 USC 2241 applications if the successive provision does not apply. Further some who might have gotten a lesser sentence under the guidelines but pled to the minimum mandatory of 15 years under the ACCA may have grounds for relief as well. For those convicted and enhanced for this provision there may be room for relief as well depending on your guidelines and whether the ACCA attached after your conviction.
There is also the issue of retroactivity here because this is a statutory issue, it is likely to have some legs for application retroactively. See Teague v. Lane, 489 U.S. 288,, 109 S.Ct. 1060 (1989); Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078 (1993) and In Re: Winship, 397 U.S. 358, 363, , 90 S.Ct. 1068 (1970)). “Like ACCA’s residual clause, section 26(b) calls for a court to identify a crime’s “ordinary case” in order to measure the crimes risk but: offers no reliable way” to discern what the ordinary version of any offense looks like. (Sessions syllabus p. 2).
“Given the daunting difficulties of accurately “reconstructing” often many years later, “the conduct underlying a conviction” the conduct-based approach’s “Utter impracticability and associated inequities is as great in 16(b) as in the ACCA. “(Sessions v. Dimaya Syllabus p. 4).
“The Immigration and Nationality Act (INA) virtually guarantees that any alien convicted of an “aggravated felony” after entering the United States will be deported. See 8 U. S. C. §§1227(a)(2)(A)(iii), 1229b(a)(3), (b)(1)(C). An aggravated felony includes “a crime of violence (as defined in [18 U. S. C. §16] . . .) for which the term of imprisonment [is] at least one year.” §1101(a)(43)(f). Section 16’s definition of a crime of violence is divided into two clauses—often referred to as the elements clause, §16(a), and the residual clause, §16(b). The residual clause, the provision at issue here, defines a “crime of violence” as “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.” To decide whether a person’s conviction falls within the scope of that clause, courts apply the categorical approach. This approach has courts ask not whether “the particular facts” underlying a conviction created a substantial risk, Leocal v. Ashcroft, 543 U. S. 1, 7, nor whether the statutory elements of a crime require the creation of such a risk in each and every case, but whether “the ordinary case” of an offense poses the requisite risk, James v. United States, 550 U. S. 192, 208.
Respondent James Dimaya is a lawful permanent resident of the United States with two convictions for first-degree burglary under California law. After his second offense, the Government sought to deport him as an aggravated felon. An Immigration Judge and the Board of Immigration Appeals held that California first-degree burglary is a “crime of violence” under §16(b). While Dimaya’s appeal was pending in the Ninth Circuit, this Court held that a similar residual clause in the Armed Career Criminal Act (ACCA)—defining “violent felony” as any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” 18 U. S. C. §924(e)(2)(B)—was unconstitutionally “void for vagueness” under the Fifth Amendment’s Due Process Clause. Johnson v. United States, 576 U. S. ___, ___. Relying on Johnson, the Ninth Circuit held that §16(b), as incorporated into the INA, was also unconstitutionally vague.
Held: The judgment is affirmed. 803 F. 3d 1110, affirmed. JUSTICE KAGAN delivered the opinion of the Court with respect to Parts I, III, IV–B, and V, concluding that §16’s residual clause is unconstitutionally vague.”