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April 29, 2018
First ripple of Dimaya disruptions appears in SCOTUS relists
In this post the day after the Supreme Court's big ruling in Sessions v. Dimaya, No. 15-1498 (S. Ct. April 17, 2018) (available here), I asked "How many federal prisoners may have Dimaya claims and how many procedural challenges will they face raising them?". Though not providing a direct answer to this question, this most recent Relist Watch posting by John Elwood over at SCOTUSblog reinforces my sense that the Dimaya disruptions are likely to be plentiful and complicated. Here are amusing excerpts from John Elwood's post (with links from the original):
We have a record number of relists, at least during the seven-plus years I’ve been watching carefully: 44. Of those, 42 are cases that obviously were held for Dimaya, and now the court is trying to decide what to do with them. Just identifying all those relists on the court’s docket, and then figuring out the legal issues involved, was a big job for people who really do have other responsibilities. But although the task was a bit dull, at least it involved an enormous amount of backbreaking labor. And so let me begin where I usually end: Thanks to Kevin Brooks for identifying all the relists, and thanks to Aurora Temple Barnes for sorting through the heaps of PDFs I lobbed at her and identifying the questions presented and creating tidy case pages.
The Dimaya relists fall into three main groups. First, there are many cases that simply present the very same question as Dimaya about the constitutionality of § 16(b). This group is enormous, including Sessions v. Magana-Pena, 15-1494, Sessions v. Lopez-Islava, 15-1496, Sessions v. Miranda-Godinez, 16-398, Sessions v. Baptiste, 16-978, Sessions v. Shuti, 16-991, Gonzalez-Longoria v. United States, 16-6259, Solano-Cruz v. United States, 16-6288, Perdomo v. United States, 16-7214, Bello v. United States, 16-7667, Alvaro-Velasco v. United States, 16-8058, Castaneda-Morales v. United States, 16-8734, Maldonado-Landaverde v. United States, 16-9318, Linares-Mazariego v. United States, 16-9319, Larios-Villatoro v. United States, 16-9660, Diaz-Esparza v. Session, 17-820, Gomez-Ureaba v. United States, 17-5283, Garcia-Hernandez v. United States, 17-5305, Hernandez-Ramirez v. United States, 17-6065, Ontiveros-Cedillo v. United States, 17-6721, Gutierrez-Lopez v. United States, 17-6751, Casabon-Ramirez v. United States, 17-7183, and -- so far as we can tell (the parties haven’t gotten back to us yet), Eaton v. United States, 17-6680. These cases should have been easy to resolve by denying cert or granting, vacating and remanding for further consideration in light of Dimaya. That they were not is the clearest example that the volume was just too great.
The second group of Dimaya relists involves application of that case to a Sentencing Guidelines provision -- a type of claim the government argues is foreclosed by Beckles v. United States. Those cases include first-time relists United States v. Hernandez-Lara, 16-617, Aguirre-Arellano v. United States, 16-8675, and Rodriguez v. United States, 17-5476, as well as returning relist Robinson v. United States, 17-6877.
The third and final group of Dimaya relists involves cases that ask whether the logic of that case and Johnson v. United States invalidates 18 U.S.C. §924(c)(3)(B), yet another criminal code provision defining “crime of violence.” This week’s new relists that involve that question include Taylor v. United States, 16-6392, Prickett v. United States, 16-7373, Glover v. United States, 16-8777, Taylor v. United States, 16-8996, Davis v. United States, 16-8997, United States v. Jenkins, 17-97, United States v. Jackson, 17-651, McCoy v. United States, 17-5484, Winters v. United States, 17-5495, Lin v. United States, 17-5767, Eizember v. United States, 17-6117, Enix v. United States, 17-6340, Ecourse-Westbrook v. United States, 17-6368, and Carreon v. United States, 17-6926. The government argues that after Dimaya, these cases should be sent back to the courts of appeals to consider narrowing constructions of Section 924(c) that might resolve the constitutional issues. Unsurprisingly, criminal defendants argue that the court should just grant review on this issue. We’ll see which side prevails.
Prior related post:
April 29, 2018 at 02:14 PM | Permalink
Comments
Doug, I have now read Justice
Gorsuch's concurring opinion and it is classic Justice Scalia. Rooted in history and persuasive. I particularly was interested in the fact that the Gorsuch opinion draws in implications of separation of powers. I have long believed and argued that the judiciary cannot cure vagueness problems because it is in the exclusive province of the legislature to define crimes.
bruce
Posted by: bruce cunningham | Apr 29, 2018 9:46:02 PM
The courts have always and will continue to clarify the meaning of criminal statutes [which will always have some vagueness, so it's a matter of degree at some point] so the separation of powers point can be taken too far. The criticism, e.g., of Scalia's Morrison v. Olson dissent that was recently written shows the limits of strict formalism.
Posted by: Joe | Apr 30, 2018 9:51:25 AM
The language of 924(c) and 16(b)'s residual clauses are identical. The court knows that 924(c) is an issue. It wsaz expressly mentioned in Justice Roberts's dissent. The majority focused on the problems created by the "ordinary case" analysis and said nothing to limit the vagueness holding to the problems inherent in evaluating prior convictions. Even though they could have and were invited to do so. The residual clause of 924(c) should fall.
To move to a fact based inquiry implicates separation of powers and the Sixth Amendment and Apprendi. Does the jury decide if the crime is violent? Does the judge? What if on the same facts a jury in Wisconsin finds a crime violent and a jury in Nebraska does not? Would we develop a common law of "risk" and "violence"? Justice Thomas's proposal will not work and creates a constitutional morass that should be avoided.
Posted by: defendergirl | Apr 30, 2018 12:46:03 PM
Maybe the feds need to re-write their statutes to get away from vague common law terms that do not reflect what is going on in the states. I know my state's persistent offender statute ties the proven conduct in the other state (based on charge, jury instruction, or what have you) to my own state's criminal code. If the offense from the other state would be called burglary here, it counts as a burglary prior. If the offense would merely qualify as trespass, it does not.
At the federal level, you would probably have to expressly exempt the "jurisdictional hook" (e.g. affecting interstate commerce) but otherwise -- if the state offense could have been prosecuted as a specific federal offense -- it should be treated as similar to that offense for the purpose of enhancement.
Posted by: tmm | Apr 30, 2018 4:51:38 PM
