                                      In the

        United States Court of Appeals
                      For the Seventh Circuit
                           ____________________
No. 15-1770
UNITED STATES OF AMERICA,
                                                           Plaintiff-Appellee,

                                        v.

RAUL VIVAS-CEJA,
                                                       Defendant-Appellant.
                           ____________________

                 Appeal from the United States District Court
                    for the Western District of Wisconsin.
           No. 3:14CR00055-001 — William M. Conley, Chief Judge.
                           ____________________

     ARGUED DECEMBER 2, 2015 — DECIDED DECEMBER 22, 2015
                           ____________________

   Before KANNE and SYKES, Circuit Judges, and GILBERT,
District Judge.*
    SYKES, Circuit Judge. Raul Vivas-Ceja pleaded guilty to
illegally reentering the United States after removal, the
maximum sentence for which is raised to 20 years if the
defendant has been convicted of an “aggravated felony”


*   Of the Southern District of Illinois, sitting by designation.
2                                                 No. 15-1770

prior to removal. See 8 U.S.C. § 1326(b)(2). As relevant here,
the definition of “aggravated felony” is supplied by the
definition of “crime of violence” in 18 U.S.C. § 16(b), which
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.”
   The district court concluded that Vivas-Ceja’s Wisconsin
conviction for fleeing an officer was a crime of violence
under § 16(b), raising the maximum sentence to 20 years.
The court imposed a sentence of 21 months. Vivas-Ceja
appeals, arguing that § 16(b)’s definition of “crime of vio-
lence” is unconstitutionally vague in light of Johnson v.
United States, 135 S. Ct. 2551 (2015).
    The Fifth Amendment’s Due Process Clause prohibits the
government from depriving a person of liberty under a
statute “so vague that it fails to give ordinary people fair
notice … or so standardless that it invites arbitrary enforce-
ment.” Id. at 2556. In Johnson the Supreme Court held that
sentencing a defendant under the so-called “residual clause”
of the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e)(2)(B)(ii), violates this prohibition. Section 16(b) is
materially indistinguishable from the ACCA’s residual
clause. We hold that it too is unconstitutionally vague
according to the reasoning of Johnson. We therefore vacate
Vivas-Ceja’s sentence and remand for resentencing.
                       I. Background
   Raul Vivas-Ceja is a citizen of Mexico and has been re-
moved from the United States on three occasions. On Sep-
tember 22, 2013, he was arrested at an airport in Madison,
No. 15-1770                                                    3

Wisconsin, for illegally reentering the country. He pleaded
guilty to illegal reentry after removal in violation of 8 U.S.C.
§ 1326.
    The maximum sentence for a violation of § 1326 depends
on the defendant’s criminal history prior to removal. A
defendant with no criminal history can be imprisoned for up
to two years, a defendant with convictions for three specified
misdemeanors or a felony can be imprisoned for up to 10
years, and a defendant with a prior conviction for an aggra-
vated felony can be imprisoned for up to 20 years. See
§ 1326(a)–(b). The definition of “aggravated felony” is found
in 8 U.S.C. § 1101(a)(43)(F), which incorporates by cross-
reference the definition of “crime of violence” in 18 U.S.C.
§ 16. Section 16 defines “crime of violence” as:
       (a) an offense that has as an element the use, at-
       tempted 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.
(Emphasis added.)
    Vivas-Ceja has numerous convictions of varying severi-
ty—e.g., driving with a revoked license, disorderly conduct,
and driving while intoxicated. He also has a felony convic-
tion for fleeing an officer in violation of section 346.04(3) of
the Wisconsin Statutes. The district court concluded that this
conviction is a crime of violence under § 16(b). Vivas-Ceja
objected that § 16(b) is unconstitutionally vague, but the
4                                                  No. 15-1770

district court rejected this argument. Classifying the fleeing
conviction as a crime of violence elevated the statutory
maximum sentence to 20 years. The court imposed a sen-
tence of 21 months.
    Vivas-Ceja appealed, renewing his argument that § 16(b)
is unconstitutionally vague. We held the appeal for Johnson
and heard oral argument after the Court issued its opinion.
We now proceed to decision.
                        II. Discussion
    The Due Process Clause prohibits the government from
depriving a person of 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.
This prohibition applies “not only to statutes defining
elements of crimes, but also to statutes fixing sentences.” Id.
at 2557.
    Johnson dealt with the ACCA, which enhances the sen-
tence of a felon who unlawfully possesses a firearm after
three prior convictions “for a violent felony or a serious drug
offense.” 18 U.S.C. § 924(e)(1). For purposes of the ACCA,
“violent felony” is defined as:
      any crime punishable by imprisonment for a
      term exceeding one year … that—
      (i) has as an element the use, attempted use, or
          threatened use of physical force against the
          person of another; or
      (ii) is burglary, arson, or extortion, involves use
           of explosives, or otherwise involves conduct
No. 15-1770                                                    5

          that presents a serious potential risk of physical
          injury to another … .
Id. § 924(e)(2)(B) (emphasis added). The emphasized portion
of the statute is known as the ACCA’s residual clause. The
defendant in Johnson was sentenced under the ACCA after
one of his prior convictions—for unlawful possession of a
short-barreled shotgun—was classified as a crime of violence
under the residual clause. 135 S. Ct. at 2556. When his case
reached the Supreme Court, the Justices asked the parties to
address whether the residual clause is unconstitutionally
vague. Id.
    The Court began its analysis of the vagueness question
by noting that the residual clause mandates the use of a two-
step framework, known as the categorical approach, to
determine whether a crime is a violent felony. Id. at 2557,
2562. In the first step, the court must determine “the kind of
conduct that the crime involves in ‘the ordinary case’” as
opposed to the facts on the ground in the defendant’s prior
case. Id. at 2557. This inquiry stems from the statutory
phrase “any crime [that] … otherwise involves conduct.” Id.
In the second step, the court must gauge whether that
ordinary case of the crime “presents a serious potential risk
of physical injury.” Id.
    The Court then held that the two parts of the residual
clause’s categorical approach combine to render the clause
unconstitutionally vague. Id. The first part gives courts no
guidance to determine what constitutes the “ordinary case”
of a crime. Id. (“How does one go about deciding what kind
of conduct the ‘ordinary case’ of a crime involves? ‘A statis-
tical analysis of the state reporter? A survey? Expert evi-
dence? Google? Gut instinct?’” (quoting United States v.
6                                                         No. 15-1770

Mayer, 560 F.3d 948, 952 (9th Cir. 2009) (Kozinski, C.J.,
dissenting from denial of rehearing en banc))). The second
part “leaves uncertainty about how much risk it takes”
before a court can conclude that the “ordinary case” of a
crime is serious enough to be a violent felony. Id. at 2558.
This combination of indeterminacy with indeterminacy, the
Court held, “produces more unpredictability and arbitrari-
ness than the Due Process Clause tolerates.” Id.
    Vivas-Ceja was sentenced under § 16(b), which like the
residual clause is a sentencing statute susceptible to chal-
lenge for vagueness. 1 Recall that § 16(b) defines “crime of
violence” as “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.” This language, though not
identical to the residual clause, is materially the same. See
Jimenez-Gonzalez v. Mukasey, 548 F.3d 557, 562 (7th Cir. 2008);
Ortiz v. Lynch, 796 F.3d 932, 935 (8th Cir. 2015). Indeed the
residual clause’s two-step categorical approach is also found
in § 16(b). See Dimaya v. Lynch, 803 F.3d 1110, 1119 (9th Cir.
2015) (concluding, in the civil-removal context, that § 16(b) is
unconstitutionally vague after Johnson).
    Regarding the first step of the categorical approach,
§ 16(b) substitutes the phrase “by its nature” for the residual

1 Other post-Johnson cases currently before this court—United States v.
Rollins, No. 13-1731 (7th Cir. argued Dec. 2, 2015); United States v.
Hurlburt, No. 14-3611 (7th Cir. argued Dec. 2, 2015); United States v.
Gillespie, No. 15-1686 (7th Cir. argued Dec. 2, 2015)—involve vagueness
challenges to the residual clause in the Sentencing Guidelines, U.S.S.G.
§ 4B1.2(a)(2), which present additional complications not present in
Vivas-Ceja’s case.
No. 15-1770                                                   7

clause’s “otherwise involves conduct.” That these two
phrases are synonymous was confirmed by the Supreme
Court in Leocal v. Ashcroft, 543 U.S. 1 (2004), decided more
than a decade before Johnson. There the Court stated that
§ 16(b) directs courts to consider whether an offense would
“naturally involve a person acting in disregard of the risk
that physical force might be used against another.” Id. at 10.
This requires an evaluation of “the elements and the nature
of the offense of conviction,” not “the particular facts relat-
ing to [a defendant’s] crime.” Id. at 7. Leocal’s interpretation
of § 16(b) is indistinguishable from Johnson’s interpretation
of the residual clause.
   Regarding the second step of the categorical approach—
assessing the level of risk in the “ordinary case” of the
crime—§ 16(b) substitutes “substantial risk” for the residual
clause’s “serious potential risk.” Any difference between
these two phrases is superficial. Just like the residual clause,
§ 16(b) offers courts no guidance to determine when the risk
involved in the ordinary case of a crime qualifies as “sub-
stantial.”
    Johnson concluded that the indeterminacy of both parts of
the residual clause’s categorical approach—the “ordinary
case” inquiry and the “risk” inquiry—rendered the clause
unconstitutionally vague. Because § 16(b) requires the
identical indeterminate two-step approach, it too is unconsti-
tutionally vague.
   The government insists that Johnson doesn’t compel this
conclusion because the Court placed special emphasis on the
confusion created by the list of enumerated crimes preceding
the residual clause, see Johnson, 135 S. Ct. at 2558–60, a fea-
ture not present in § 16(b). The government overreads this
8                                                 No. 15-1770

part of the Court’s analysis. As we’ve explained, the heart of
the Court’s opinion demonstrates why the two aspects of the
residual clause’s categorical approach—the ordinary-case
determination and the risk assessment—“conspire” to make
the clause unconstitutionally vague. Id. at 2557. Only later
did the Court observe that the residual clause also “forces
courts to interpret serious potential risk in light of the four
enumerated crimes,” which are “far from clear in respect to
the degree of risk each poses.” Id. at 2558 (quotation marks
omitted). In other words, the enumeration of specific crimes
did nothing to clarify the quality or quantity of risk neces-
sary to classify offenses under the statute. The list itself
wasn’t one of the “two features” that combined to make the
clause unconstitutionally vague. Id. at 2557.
    The government also points to the Court’s discussion of
its own “repeated failures to craft a principled and objective
standard out of the residual clause,” id. at 2558, and its
reference to the “pervasive disagreement” among lower
courts about how to apply the clause, id. at 2560. Section
16(b), on the other hand, hasn’t produced a shifting and
irreconcilable body of caselaw, so the government thinks it’s
unnecessary to throw in the towel and declare the statute
unconstitutionally vague. This argument, too, overstates the
Court’s point. That the residual clause had persistently
“eluded stable construction,” United States v. Jones, 689 F.3d
696, 699 (7th Cir. 2012), was additional evidence that served
to “confirm its hopeless indeterminacy,” Johnson, 135 S. Ct. at
2558. The chaotic state of the caselaw was not a necessary
condition to the Court’s vagueness determination.
    Applying Johnson’s reasoning here, we conclude that
§ 16(b) is unconstitutionally vague. The government doesn’t
No. 15-1770                                              9

urge us to affirm based on harmless-error analysis. Accord-
ingly, we VACATE Vivas-Ceja’s sentence and REMAND for
resentencing.
