     Case: 15-40041   Document: 00513375415        Page: 1   Date Filed: 02/10/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                    No. 15-40041                           FILED
                                                                    February 10, 2016

UNITED STATES OF AMERICA,                                             Lyle W. Cayce
                                                                           Clerk
             Plaintiff - Appellee

v.

GREGORIO GONZALEZ-LONGORIA,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Southern District of Texas


Before JOLLY, HIGGINSON and 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, 135 S.Ct. 2551 (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 16 contains a similar definition: a
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                                  No. 15-40041
“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 § 16 unconstitutional.
                                         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 16 defines
“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




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                                       No. 15-40041
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 § 16 definition 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 § 2L1.2 as 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


       1 USSG § 2L1.2 separately defines “crime of violence.” Gonzalez-Longoria’s offense
undisputedly did not satisfy the § 2L1.2 definition of “crime of violence”; the doubt is about
the § 16 definition of “crime of violence,” which is relevant to the § 2L1.2 definition of
“aggravated felony.”
       2 United States v. Matchett, 802 F.3d 1185, 1195 (11th Cir. 2015) (“Because there is no

constitutional right to sentencing guidelines—or, more generally, to a less discretionary
application of sentences than that permitted prior to the Guidelines—the limitations the
Guidelines place on a judge's discretion cannot violate a defendant's right to due process by
reason of being vague.”) (quoting United States v. Wivell, 893 F.2d 156, 160 (8th Cir.1990)).
       3 Velasquez cites United States v. Pearson, 910 F.2d 221 (5th Cir.1990). Pearson,

however, does not address whether the guidelines are subject to a vagueness challenge. It
holds only that “[d]ue process does not mandate[] either notice, advice, or a probable
prediction of where, within the statutory range, the guideline sentence will fall.” Id. at 223.
As Gonzalez-Longoria points out, notice is only one concern underlying the vagueness
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                                     No. 15-40041
      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 § 16 is 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
§ 16 by 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



analysis; the vagueness doctrine also seeks to prevent arbitrary enforcement. See Johnson,
135 S.Ct. at 2558.
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                                      No. 15-40041
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 § 16
is 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, (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 (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 § 16 is 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


       4We therefore do not reach Gonzalez-Longoria’s alternative argument that he may
challenge § 16 because it raised the statutory maximum for his sentence from ten years to
twenty years (Gonzalez-Longoria was sentenced to twenty-seven months of imprisonment).
See Vivas-Ceja, 808 F.3d at 720 (reaching the constitutionality of § 16 because it increased
the statutory maximum when the defendant was sentenced below any relevant statutory
maximum).
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                                  No. 15-40041
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
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                                    No. 15-40041
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” interchangeably with “ordinary case.”
      1. Archetypical-case analysis
      Before we can turn to the question of what archetypical-case analysis is,
we must start with a more basic question: What is usually the judge’s role in
applying a typical criminal statute to the defendant who committed the crime?
That is, what does a judge do when a statute does not require archetypical-case
analysis? The judge applies the law to the facts in the case before him. For
example, if a law criminalizes “manufacturing a controlled substance” in a way
that creates “substantial risk of harm to human life,” 5 the judge determines
whether the facts in this case showed that the defendant before him created a
“substantial risk of harm to human life.” This might be a hard question on
factual grounds (which testimony is most credible?) or on legal grounds (what,
exactly, is “substantial risk?”). But this question is exactly the sort of question
that judges and juries ask and answer routinely.
      And this question is exactly the sort of question that judges are forbidden
from asking when they are called upon to apply an archetypical-case analysis.
When charged with undertaking archetypical-case analysis, a judge must
ignore the facts of the case before him; likewise, he must disregard the
defendant’s specific conduct.
      This task raises an initial question: Why would a statute ever instruct a
court to ignore the facts of the crime before it? In Johnson, the ACCA was
written to avoid requiring a factual inquiry so that courts can sentence career
offenders without delving into the specific conduct of their past offenses.


      5   See 21 U.S.C. § 858.
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                                 No. 15-40041
Specifically, the district judge in Johnson did not need to inquire into the
details of Johnson’s 2007 state-court conviction for possessing a short-barreled
shotgun. Instead, the sentencing judge applied the archetypical-case analysis.
      So, finally, what exactly is archetypical-case analysis? This analysis
asks the judge to examine the crime that the defendant was charged with
(here, possessing a short-barreled shotgun). The judge is then to ignore facts
of the defendant’s conduct and imagine the hypothetical facts archetypically
associated with that crime. In the Court’s words, a judge must create “a
judicially imagined ‘ordinary case’ of a crime” that is not tied “to real-world
facts or statutory elements.” Id. at 2557. The judge must then adjudicate that
archetypical case by the standard provided in the same statute. In Johnson,
the trial judge was required to ask whether the archetypical case of possessing
a short-barreled shotgun “involves conduct that presents a serious potential
risk of physical injury to another.”    This hypothetical application of this
standard to the hypothetical facts of the imagined case forms the heart of the
archetypical-case (or ordinary case) analysis.
      2. Imprecise standard
      Analyzing an archetypical case does not by itself render a statute
unconstitutionally vague under Johnson.          Only when the required arch-
etypical-case analysis is paired with the second “feature” does the statute
become impermissibly vague.      That second feature is whether the statute
judges the archetypical case against an “imprecise standard.”
      Under the ACCA, courts were asked to determine if the archetypical case
of a crime met the following standard: does the archetypical crime “involve[]
conduct that presents a serious potential risk of physical injury to another”?
The Court noted that a “serious potential risk” standard is textually imprecise.
After examining the textual imprecision, the Court identified three factors that
could add or subtract precision from the text. First, the residual clause was
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                                       No. 15-40041
not clarified by example, as the government argued; instead, a “confusing list
of examples” made an already-imprecise standard worse. Id. at 2561. Second,
the residual clause did not apply to a narrow scope of conduct; instead, it
applied broadly to subsequent effects of a criminal act. 6 Id. at 2551. Third and
finally, federal courts had not agreed about how to interpret the residual
clause; instead, they had experienced “pervasive disagreement” about the
clause’s proper meaning. Id. at 2560.              Each of these factors reduced the
precision of the ACCA’s standard.
       Based on the ACCA’s text and these three factors, the Court held that
the residual clause contained an impermissibly imprecise standard. The Court
did not determine whether the textual imprecision alone or any combination of
the factors, without the others, would have doomed the ACCA. “Each of the
uncertainties in the residual clause may be tolerable in isolation, but ‘their
sum makes a task for us which at best could be only guesswork.’” Id. (quoting
United States v. Evans, 333 U.S. 483, 495 (1948)). Given that sum, the ACCA
contained an imprecise standard; applying that imprecise standard with
archetypical-case analysis rendered the ACCA unconstitutionally vague.
       3. The Johnson test for vagueness
       Thus, the Johnson test for vagueness requires that we ask two questions
today, in our consideration of § 16. First, whether the statute requires the
analysis of an imaginary, archetypical case to determine whether a crime is a
“crime of violence.” That is, whether applying the statute requires a court to
set aside the actual facts before it, and to imagine the conduct that would be
committed in an archetypical case of the crime under consideration. If not—if




       6“[A] crime may qualify under the residual clause even if the physical injury is remote
from the criminal act. But how remote is too remote? Once again, the residual clause yields
no answers.” Id. at 2551.
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                                       No. 15-40041
the court is free to look at the facts of the case before it—then Johnson does
not apply.
       If the statute does require that we perform an analysis of the
archetypical case, we then turn to a second question: whether the archetypical
case must be adjudicated under an “imprecise standard.” To answer this
question, we will look to the text of the statute and three non-exclusive factors:
presence or absence of clarifying examples, whether the scope is limited or
expansive, and judicial agreement or disagreement.
       If the statute both calls for an analysis of the archetypical case and
provides an “imprecise standard” by which the archetypical case must be
judged, it follows that the statute is unconstitutionally vague.
                                             IV.
       We first raise the threshold question: whether interpreting § 16 requires
an analysis of an archetypical case. The parties do not dispute that such an
analysis is required, 7 and we agree. The only disputed question is whether
§ 16 includes an imprecise standard by which the archetypical case must be
judged. Thus, accepting the first prong of Johnson as satisfied, we turn our
full attention to the second consideration in the vagueness analysis.
                                              A.
       We begin with the text. Section 16 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.”             18 U.S.C. § 16.       This text closely
resembles the ACCA’s definition of “violent felony” as any crime that “is [one


       7  Compare Gov’t Supp. Br. at 3 (“[L]ike [interpreting the] ACCA, [interpreting] § 16(b)
involves a risk-based analysis of the ‘ordinary case’ of a predicate offense.”) with Gonzalez-
Longoria Supp. Br. at 4 (“[Interpreting § 16(b)] requires a categorical inquiry that asks the
sentencing court first to imagine the type of conduct constituting the ‘ordinary case’ of the
crime . . . .”).
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                                   No. 15-40041
of the examples] or otherwise involves conduct that presents a serious potential
risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). The ACCA’s
standard, however, is arguably less precise, since the ACCA’s risk is modified
by both “serious” and “potential,” while § 16’s risk is modified only by
“substantial.”     Further, “physical force” may be marginally clearer than
“physical injury.” These differences are slight, however, and the two statutes’
text provide similarly imprecise guidance. We therefore turn to the factors
identified in Johnson.
                                        B.
      The first factor that affects the precision of a standard is the presence or
absence of clarifying examples. In Johnson, the government argued that the
presence of examples clarified the meaning of the ACCA. Johnson, 135 S.Ct.
at 2560–62.      The Court rejected this argument, holding that the list of
examples was “confusing.” The Court focused specifically on “burglary” and
“extortion”:
               These offenses are far from clear in respect to the
               degree of risk each poses. Does the ordinary burglar
               invade an occupied home by night or an unoccupied
               home by day? Does the typical extortionist threaten
               his victim in person with the use of force, or does he
               threaten them by mail with the revelation of
               embarrassing personal information?

Johnson, 135 S. Ct. at 2558.
      Today, the government argues that § 16 is clearer than the ACCA
because “it does not contain an introductory list of enumerated crimes followed
by an ‘otherwise’ provision.” Gov’t Supp. Br. at 3. True enough. Section 16,
however, also lacks clarifying examples. Arguably, having no examples is
worse than having unclear examples. The confusing examples in Johnson
“provide at least some guidance as to the sort of offenses Congress intended for
the provision to cover. Section 16(b), by contrast, provide no such guidance at
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                                  No. 15-40041
all.” Dimaya, 803 F.3d at 1118 n.13. See also Vivas-Ceja, 808 F.3d at 723
(holding that, without examples, the ACCA’s standard would have been
objectionably imprecise, and that “the enumeration of specific crimes did
nothing to clarify” the ACCA’s imprecise standard).
      We could look beyond the text of § 16 for potentially clarifying examples
in an attempt to save the statute. This search, however, leads to examples
that, like the ACCA’s examples, confuse rather than clarify.              As the
government notes, “In Leocal [v. Ashcroft, 543 U.S. 1 (2004)], a unanimous
Court . . . identified one offense (burglary) as the ‘classic example’ of a § 16
qualifying offense.” Gov’t Supp. Br. at 6. Thus, § 16 arguably contains a
judicially imposed example—the very one that proved most problematic in the
ACCA. Just as the ACCA’s “residual clause offers no reliable way to choose
between . . . competing accounts of what ‘ordinary’ attempted burglary
involves,” § 16 offers no principled way to determine how much physical force,
if any, is risked in an ordinary burglary. Johnson, 135 S. Ct. at 2558. “Does
the ordinary burglar invade an occupied home by night or an unoccupied home
by day?” Id. The answer is no clearer when interpreting § 16 than when
interpreting the ACCA.
      “Burglary” is not the only arguable § 16 example.         Section 16 only
impacts Gonzalez-Longoria because it is incorporated into the definition of
“aggravated felony” as “a crime of violence (as defined in section 16 of Title 18,
but not including a purely political offense).”      8 U.S.C. § 1101(a)(43)(F)
(emphasis added). This qualifier suggests that at least some “purely political
offense[s]” would otherwise be § 16 crimes of violence. Like burglary, however,
the “purely political offense” example is confusing. Though we have never
interpreted the meaning of “purely political offense,” the Second Circuit
contrasted “‘purely’ political offenses against a government, such as treason,
sedition[,] and espionage, [with] ‘relative’ political offenses, to wit, crimes
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                                      No. 15-40041
against persons or property which are incidental to a war, revolution, rebellion
or political uprising.” Matter of Mackin, 668 F.2d 122, 124 (2d Cir. 1981). If
we were to adopt this view, it would be hard to conceive of a “purely” political
offense that would otherwise qualify as a § 16 crime of violence. This factor
adds further imprecision.
       Section § 16 lacks a clarifying list of examples. It either contains no
examples and thus lacks any source of clarification, or it contains a confusing
list of examples. Neither alternative reduces the statute’s imprecision.
                                            C.
       The second factor contributing to the ACCA’s imprecision was the
potential breadth of its scope. The Court noted that, to interpret the residual
clause, courts must go beyond “evaluating the chances that the physical acts
that make up the crime will injure someone” to consider injuries that might
occur after those physical acts had been completed. Johnson, 135 S.Ct. at 2557
(emphasis added).
       The government contends that, because § 16 “applies only when the risk
of force occurs ‘in the course of committing the offense,’” it is “significantly
narrower” than the ACCA’s residual clause.               Gov’t Supp. Br. at 5.        This
assertion, however, fails to contend with Leocal’s observation: Burglary is a
“classic example” of a § 16 crime of violence. Leocal, 543 U.S. at 2. 8 In the
ACCA:
              the inclusion of burglary [as an example] confirms that
              the court's task also goes beyond evaluating the
              chances that the physical acts that make up the crime
              will injure someone. The act of . . . breaking and


       8 Leocal’s strict holding was only that driving under the influence is not a crime of
violence, and thus the discussion of burglary is arguably dicta. Nonetheless, the Court was
emphatic—not only is burglary included under § 16, it is “the classic example” of a crime of
violence under § 16; we would need strong reason to depart from such clear guidance from
the Court.
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                                       No. 15-40041
              entering into someone's home does not, in and of itself,
              normally cause physical injury. Rather, risk of injury
              arises because . . . the burglar might confront a
              resident in the home after breaking and entering.

Johnson, 135 S.Ct. at 2557. Just as the risk of injury in burglary frequently
occurs after the breaking and entering, so too does the risk of physical force.
Thus, at least some extra-offense conduct must be part of our analysis, and we
cannot accept the government’s interpretation that § 16 “does not go beyond
‘the physical acts that make up the crime.’” Id. 9
       The government further argues that Leocal limits § 16. Leocal states
that “§ 16 relates not to the [defendant’s] general conduct or to the possibility
that harm will result from a [defendant]'s conduct, but to the risk that the use
of physical force against another might be required in committing a crime. The
classic example is burglary.” Leocal, 543 U.S. at 10 (emphasis added). What
it means for the use of force to be “required” is not clear. It must mean
something more than being part of “the physical acts that make up the crime”
(or burglary would not count) but less than “the possibility that harm will
result.” In many ways, the Court’s statement about the residual clause applies
equally to § 16: “The inclusion of burglary . . . suggests that a crime may qualify
under [§ 16] even if the physical [force] is remote from the criminal act.”
Johnson, 135 S.Ct. at 2559. The Court goes on to ask, “[b]ut how remote is too
remote?” Id. For § 16, we have a partial, unsatisfying answer—only so remote
as to be “required” by the crime and definitely not so remote as the mere
“possibility that harm will result.” This provides little guidance.



       9One way to save the government’s reading of the statute would be to interpret “in
the course of committing the offense” strictly but to read “physical force against the person
or property of another” so broadly that it includes picking a lock or opening a door. However,
this would not decrease the imprecision of the statute but merely shift it—courts would then
confront the question of what meaning “physical force” could possibly have.
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                                 No. 15-40041
                                       D.
      Lastly, we examine the degree of judicial agreement or disagreement
about § 16. We begin by noting that this factor is the least important: Unlike
the other factors, judicial disagreement does not cause imprecision. If a new
law were passed, it would be exactly as imprecise before any courts had
disagreed about it as it would be afterwards.              Nonetheless, judicial
disagreement provides evidence of imprecision, even if it does not create it.
      At least at the Supreme Court level, § 16 has occasioned much less
disagreement than did the ACCA—§ 16 has been to the Court only once, in
Leocal, a unanimous decision. The Supreme Court, however, has discretion
over its docket and thus the absence of § 16 cases may speak minimally to the
inherent imprecision of the statute. The evidence of disagreement from district
and circuit courts is more mixed. Gonzalez-Longoria points out multiple cases
that disagree about how to interpret § 16. See Gonzalez-Longoria Br. at 22–
24. The government responds that much of this confusion was cleared up by
Leocal and more by Johnson; of the remaining disagreements, many seem like
the sort of “marginal cases in which it is difficult to determine the side of the
line on which a particular fact situation falls” that do not provide much
evidence of imprecision. Gov’t Supp. Br. at 7 (quoting Johnson, 135 S.Ct. at
2560). Judicial disagreement provides some evidence of imprecision but less
evidence than was present in Johnson.
                                       V.
      Having now examined the Johnson factors, we return to the central
question: Whether the standard in § 16 is so imprecise that, in combination
with the ordinary-case inquiry, § 16 becomes unconstitutionally vague.
Section 16’s standard is imprecise in all the ways that the ACCA’s standard
was imprecise; in each case, however, it is arguably at least slightly less
imprecise. The ACCA’s standard referenced a confusing list of examples; § 16’s
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text references no examples at all. The ACCA’s standard encompasses a broad
scope, as it considers post-offense conduct; so does § 16’s standard, though its
scope may be at least slightly limited by Leocal. The ACCA had occasioned
judicial disagreement; so has § 16, though less. Comparing § 16’s standard to
the ACCA’s standard, all we can say with confidence is that § 16’s standard is
imprecise, although not quite as imprecise as the ACCA’s standard.
      Our course forward is clear, however, upon considering that Johnson was
not a case at the very margins of vagueness and non-vagueness. Johnson did
not hold that the ACCA’s standard represents a minimum bar for precision;
that is, Johnson did not hold that any standard slightly more precise than the
ACCA’s is acceptably precise. To the contrary, Johnson held that the ACCA’s
standard was so imprecise that the Court was justified in departing from stare
decisis. Presumably, therefore, a marginally more precise standard could be
problematically vague.     Section 16’s standard is that marginally more
precise—yet still imprecise—standard.
      Thus, considering each of the arguments and nuances brought to our
attention, we hold that § 16 is unconstitutionally vague because, at bottom,
§ 16 requires courts both to imagine an ordinary/archetypical case and then to
judge that imagined case against imprecise standard. Under Johnson, this
means that § 16 is unconstitutionally vague, and we so hold.
      We therefore VACATE Gonzalez-Longoria’s sentence and REMAND to
the district court for resentencing in a manner not inconsistent with this
opinion.
                                                 VACATED and REMANDED.




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                                       No. 15-40041
STEPHEN A. HIGGINSON, dissenting:
       “It is the uncertainty that charms one. A mist makes things wonderful.”
Oscar Wilde, The Picture of Dorian Gray. Perhaps true for Oscar Wilde, but
not in the criminal law, where too much uncertainty denies defendants fair
notice and permits arbitrary enforcement of the laws. See Kolender v. Lawson,
461 U.S. 352, 357-58 (1983).
       As defined by 18 U.S.C. § 16(b), a “crime of violence” includes any offense
that “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 presented here is whether this formulation put Gonzalez-Longoria, a
felon, on sufficient notice that his prior Texas felony conviction of Assault
Causing Bodily Injury with Prior Conviction of Family Violence, in violation of
Tex. Penal Code § 22.01, would trigger 1 an enhanced sentence upon conviction
of his latest offense, Illegal Reentry after Deportation, in violation of 8 U.S.C.
§§ 1326(a) & (b). The similarities—at least at first glance—between 18 U.S.C.
§ 16(b)’s definition of a “crime of violence” and the definition of an “aggravated
felony” provided by the residual clause of the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(1), which the Supreme Court recently invalidated
as unconstitutionally vague, see Johnson v. United States, 135 S. Ct. 2551,




       1  Section 2L1.2(b)(1)(C) of the United States Sentencing Guidelines 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 provision 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, but not including a purely political offense) for which the term of imprisonment
at least one year.” And that definition points us, at last, to the definition provided by 18
U.S.C. § 16(b), which is the one challenged here.
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                                    No. 15-40041
2557 (2015), raise the question whether Section 16(b), too, must be struck as
unconstitutionally vague.
       ACCA 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). The italicized portion
is known as the “residual clause.” Johnson, 135 S. Ct. at 2556. In Johnson, the
Court highlighted “two features” of the residual clause that “conspire” to 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” in a “judicially imagined ‘ordinary case.’” Id. Second, it
“leaves uncertainty about how much risk it takes for a crime to qualify as a
violent felony” because of ACCA’s “imprecise ‘serious potential risk’ standard.”
Id. at 2558.
      The Court’s first concern 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 in Johnson of the categorical approach in the specific context of
ACCA’s residual clause. The narrower reading is more sound. Even though
some mystery inheres in all language, it particularly does when we ask if a
prior crime is—not was—violent. Thus, with the categorical approach, we talk
a bit like the Sphynx, asking whether a crime is violent, ordinarily (or
“archetypically”), but not whether it was violent, factually. 2 All agree this first


      2  As the Court summarized in Johnson, “good reasons” supported the adoption of the
categorical approach with respect to ACCA:
              Taylor [v. United States, 495 U.S. 575 (1990),] explained that the
       relevant part of the Armed Career Criminal Act “refers to ‘a person who ... has
       three previous convictions' for—not a person who has committed—three
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                                      No. 15-40041
level of indeterminacy exists in Section 16(b), just as it was identified in
Johnson pertaining to the ACCA’s residual clause. In Johnson, however, the
Court perceived vagueness rising to a due process violation not because of the
categorical approach alone, but because ACCA’s residual clause further
mystifies the mystery by requiring courts, in imagining the ordinary case, to
further imagine whether the ordinary case would present a “serious potential
risk of physical injury.” 18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added).
      Although district courts applying either enhancement must first,
similarly, classify a prior offense into a crime category, “judicially imagining”
(often counterfactually) the ordinary case, ACCA’s residual clause compounds
the vaguery of crime classification with yet another vaguery, asking whether
the crime category has the “potential risk” of resulting in “injury.” Merriam-
Webster’s Collegiate Dictionary defines “potential” as “[e]xisting in possibility”
or “capable of development into actuality.” It defines “risk” as “possibility of
loss or injury.” Thus, to talk about “potential risk” is to talk about the
possibility of a possibility—the chance of a chance. Adding one more dot to
connect, ACCA’s residual clause requires a guess about the potential risk of
(necessarily future) injury, cf. Paroline v. United States, 134 S. Ct. 1710, 1717,
1721 (2014) (“The full extent of this victim's suffering is hard to grasp.”), rather
than about the risk that “physical force . . . may be used in the course of
committing [an] offense.” 18 U.S.C. § 16(b) (emphasis added).



      previous violent felonies or drug offenses.” 495 U.S. at 600. This emphasis on
      convictions indicates that “Congress intended the sentencing court to look only
      to the fact that the defendant had been convicted of crimes falling within
      certain categories, and not to the facts underlying the prior convictions.” Ibid.
      Taylor also pointed out the utter impracticability of requiring a sentencing
      court to reconstruct, long after the original conviction, the conduct underlying
      that conviction.
      135 S. Ct. at 2562.
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                                       No. 15-40041
       As the Johnson majority observed, the ACCA’s residual clause’s focus on
potential injury requires courts to “imagine how the idealized ordinary case of
the crime subsequently plays out.” Johnson, 135 S. Ct. at 2557-58. In contrast,
the analysis under 18 U.S.C. § 16(b) is more bounded; it requires courts to
apply the well-settled test from Leocal and determine whether the offense
category “naturally involve[s] a person acting in disregard of the risk that
physical force might be used against another in committing an offense.” Leocal
v. Ashcroft, 543 U.S. 1, 10 (2004). While enhancement under ACCA requires a
guess about the future and potential risk of injury—indeterminate for the
myriad reasons described in Johnson—enhancement under Section 16(b)
requires a straightforward assessment about the risk of use of force during
commission of crimes. Compare Paroline, 134 S. Ct. at 1717-1722 (discussing
proximate cause problems inherent in injury inquiry), with United States v.
Ramos, 537 F.3d 439, 465 (5th Cir. 2008) (assessment about the use of force as
applied to victims who resort to self-defense), Wilkins v. Gaddy, 559 U.S. 34,
37–38 (2010) (assessment about the use of force as applied to police officers
who resort to force), 18 U.S.C. § 111 (use of force element of offense), and 18
U.S.C. § 1951(a) (use or threat of physical violence element of offense). 3
       The Court’s second concern—uncertainty about how much risk it takes
for a crime to qualify—is also less pressing in the context of 18 U.S.C. § 16(b)
for another textual reason. As the Court highlighted in Johnson, ACCA’s
residual clause “force[d] courts to interpret ‘serious potential risk’ in light of . . .



       3 Classifying crimes, as well as assessing risk of force and violence, is built into the
criminal justice system. For example, 18 U.S.C. § 924(c), which provides for enhanced
penalties for the use of a firearm in connection with a crime, contains the same definition of
“crime of violence” as 18 U.S.C. § 16(b). See 18 U.S.C. § 924(c)(3)(B). Likewise, the Bail
Reform Act contemplates presumptive imprisonment when a defendant is even charged with
a “crime of violence.” See 18 U.S.C. § 3142(f)(1)(A), (g)(1).
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                                 No. 15-40041
four enumerated crimes,” the rhyme or reason of which no one could make out.
Johnson, 135 S. Ct. at 2558 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). The Court
went on to note that, unlike ACCA, most similar laws did not “link[] a phrase
such as ‘substantial risk’ to a confusing list of examples.” Id. at 2561. In 18
U.S.C. § 16(b), the amount of risk required—“substantial risk”—is not linked
to any examples.
      These two statutory distinctions mean that the concerns raised by the
Court in Johnson with respect to ACCA’s residual clause are less concerning
in the context of 18 U.S.C. § 16(b). Thus, with Leocal as precedent, we should
not get ahead of the Supreme Court, invalidating duly enacted and
longstanding legislation by implication. See United States v. Nat'l Dairy
Products Corp., 372 U.S. 29, 32 (1963) (a “strong presumptive validity . . .
attaches to an Act of Congress” and, when possible, courts should seek an
interpretation that supports the constitutionality of legislation and avoid,
when possible, invalidating a statute as vague). This is especially true because
the Court in Johnson specifically identified the precedent it was overruling, see
Johnson, 135 S. Ct. at 2563, yet intimated nothing negative about its earlier,
unanimous Leocal decision. See Dimaya v. Lynch, No. 11-71307, 2015 WL
6123546, at *13-14 (9th Cir. Oct. 19, 2015) (Callahan, J., dissenting) (“The
Supreme Court will be surprised to learn that its opinion in Johnson rendered
§ 16(b) unconstitutionally vague, particularly as its opinion did not even
mention Leocal and specifically concluded with the statement limiting its
potential scope.”).
      Gonzalez-Longoria’s most recent crime is Illegal Reentry after
Deportation, and his relevant earlier crime was Assault Causing Bodily Injury
with Prior Conviction of Family Violence. Due process requires that he be able
to apprehend that he could face enhanced punishment because his prior offense
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                                  No. 15-40041
naturally involves physical force. That is predictively straightforward and
sensible, telling lawbreakers they face longer prison terms because society
condemns physical force in criminality more, even as it also commiserates with
potential injury and pain and suffering. Section 16(b)’s task, both as to notice
(to felons) and in application (by judges), asks whether a perpetrator’s
commission of a crime involves a substantial risk of physical force, which is
predictively more sound than imputing clairvoyance as to a victim’s potential
risk of injury, which the Court, after years of consideration, held to be
unknowable in Johnson. Again, the Supreme Court invalidated ACCA’s
residual clause only after “[n]ine years' experience trying to derive meaning
from the . . . clause,” “repeated attempts and repeated failures to craft a
principled and objective standard,” and years of “pervasive disagreement” in
the lower courts about how to conduct the categorical approach inquiry with
respect to the clause, Johnson, 135 S. Ct. at 2558-60—a record of unworkability
not present here.
      In summary, we should not strike Congressional law, 18 U.S.C. § 16(b),
because, first, the concerns raised by the Court in Johnson with respect to
ACCA’s residual clause are less implicated by Section 16(b); second, because
Leocal is precedent only the Supreme Court should adjust; and, third, because
Section 16(b) does not involve the interplay of interpretative method and
statutory text causing the double indeterminacy that was the due process
muddle rejected in Johnson. Gonzalez-Longoria was on sufficient notice that
his prior crime of Assault Causing Bodily Injury with Prior Conviction of
Family Violence is one society condemns as violent because it involves a
substantial risk that, in the course of its commission, force will be used against
another. I dissent.


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