Based on Johnson, split Fifth Circuit panel finds another simlar provision of federal law is unconstitutionally vague

A helpful reader alerted me to a notable new split ruling handed down by the Fifth Circuit yesterday in US v. Gonzalez-Longoria, No. 15-40041 (5th Cir. Feb. 10, 2016) (available here). Here is how the majority opinion gets started:

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 “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.

And here is how the dissent gets started and sums up its differing analysis of Johnson's impact here:

“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)....

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.