« Broad perspectives on the narrowness of recent federal clemency and sentencing reform efforts | Main | Great coverage and analysis of Prez Obama's recent clemency work at Pardon Power »

August 8, 2016

Split en banc Fifth Circuit limits reach of Johnson vagueness ruling while debating what makes for a "constitutional sockdolager"

Especially while traveling and being engaged with lots of other projects, I have not been able to keep up fully this summer with many lower federal court cases exploring the application of the Supreme Court's Johnson ACCA vagueness ruling to other comparable provisions of other federal sentencing statutes and guidelines.  Helpfully, though, an en banc ruling by the Fifth Circuit late last week in US v. Gonzalez-Longoria, No. 15-40041 (5th Cir. Aug. 5, 2016) (available here), provides something of a primer on developments in one notable context. Here is how the en banc majority opinion (per Judge Higginson) gets started and a key part of its analysis:

This case presents the question whether the “crime of violence” definition provided by 18 U.S.C. § 16(b), when incorporated by reference into United States Sentencing Guidelines § 2L1.2(b)(1)(C), is unconstitutionally vague on its face in light of Johnson v. United States, 135 S. Ct. 2551 (2015), in which the Court struck as unconstitutionally vague the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii). We hold that 18 U.S.C. § 16(b) is not unconstitutionally vague....

The [textual] distinctions [in how “crime of violence” is defined in § 16(b)] mean that the concerns raised by the Court in Johnson with respect to Armed Career Criminal Act’s residual clause do not cause the same problems in the context of 18 U.S.C. § 16(b). While there might be specific situations in which 18 U.S.C. § 16(b) would be vague — although Gonzalez-Longoria does not suggest any in particular — it is certainly not a statute that “simply has no core.”

And here is how the dissenting opinion (per Judge Jolly) gets started and key parts of its analysis (with emphasis from the original):

I am in agreement with the majority’s framework for deciding this case. Specifically, I agree that Johnson “highlighted two features of the [Armed Career Criminal] Act’s residual clause that together make the clause unconstitutionally vague [and that] 18 U.S.C. § 16(b) shares these two features.” I also agree that “neither feature causes the same level of indeterminacy in the context of 18 U.S.C. § 16(b).”  The majority, however, drifts from reason — and into the miasma of the minutiae — when it determines that these vagaries suffice to distinguish § 16(b) from the residual clause.  Accordingly, I respectfully dissent....

I can agree that [a textual distinction] provides a shadow of difference, but hardly a constitutional sockdolager. This difference between the two statutes is particularly slight because, through judicial interpretation, § 16(b) not only contains an example, it contains the very example that most troubled the Johnson Court....

These statutes read extremely similarly. The majority of circuits to have considered the question have held that these two similar texts must suffer the same constitutional fate. The majority, engrossed by thinly sliced and meaningless distinctions, adopts the minority view and errs by losing track of the entirety: these statutes, in constitutional essence, say the same thing.

August 8, 2016 at 03:08 PM | Permalink


I believe the residual clause is " potential for serious physical harm"

They've already rejected, owi, driving a stolen dump truck, walking away from a halway house. But have affirmed attempted burglary, now theres a vague one.

The federal syatem is all about being vague, there statues are open ended.

Dissect constructive Possession.

My good god, really. To exercise control over or domionion, whether or not this guy has a safe in his house that exceeds Fort Knox. If he has one puny .22 cartridge in this fortress and meets felon in possession or ACCA, ouch ouch.

There wS a case that came thru on this blog within the last few yys, maybe 4-5?
The guy had a couple burglarys and moved a chest if drawers. Inside there was 7 shotgun shells. You have just won 15 yrs (minimum, up to life). The ussc and congress is never going to address these guys. Pres Obama sure did. Weldon Angelos is the poster guy. Obama is the man these days and Im sure hes not done.

The resudual clause needs to be omitted for Acca & Career Offender.

Career Offender need to be reduced to 7 yrs and Acca 10 yrs.

Posted by: MidWestGuy | Aug 8, 2016 7:20:57 PM

Followup: I cannot belive that Ausa and Fed Judges are so blood thirsty that nobody considered Mens Rea for Owi, its not present. Where is the analytical ability, desire to think on their own and not be sheep and just start slaughtering inmates.

Judge McConnel has a good constitution as he had the ability to chop it to pieces.
Begay case.

Posted by: MidWestGuy | Aug 8, 2016 7:29:16 PM

IIRC regarding the guy with the shotgun shells, there was plenty of evidence he was involved with numerous burglaries but the state prosecutors left it to the feds to pursued the ACCA charge because it would draw a more definite term of incarceration (as well as put the bill on the feds for housing him).

Posted by: Soronel Haetir | Aug 8, 2016 11:11:27 PM


I agree the guy had several burglaries, but they were in the past. My point was he had a chest of drawers that contained 7 shotgun shells. Yes he was not so nice a guy, but 15 yrs as an Acca.

They need to drop the ammunition part, especially when so little qty and no gun is in the area. Chicago has toughest gun laws in the nation, yet they have over 3,000 shootings each yr.

In the midwest, from Sept thru Dec, Just about every hunter has a few or boxes of ammo in their truck. If a person with 2 or more drug charges gets a ride, he potentially is looking at being a career offender ot Acca type sentence, both 15 yrs.

Its far reaching areas like this that makes me realize what peons us taxpayers really are.
Ammo serves no purpose. If they want to limit gangs or cartels to ammo, then clearly state the requirements. Dont have something as wishy washy as banning ammo from these guys. Remember constructive posession means anywhere in the area, even if you have to rent a fork lift to open up a guys safe. Ridiculous.

Posted by: MidWestGuy | Aug 9, 2016 5:08:02 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB