Carlton Baptiste v. Attorney General United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 14-4476

_____________

CARLTON BAPTISTE,

a/k/a Carlton Baptist,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF

AMERICA,

Respondent

_____________

On Petition for Review of a Decision of the Board of

Immigration Appeals

(Immigration Judge: Margaret R. Reichenberg)

(A030-338-600)

Argued: April 5, 2016

_____________

Before: GREENAWAY, JR., SCIRICA and RENDELL,

Circuit Judges.

(Filed: November 8, 2016)

Michael L. Foreman, Esq.

Penelope A. Scudder [ARGUED]

Pennsylvania State University

Dickinson School of Law

329 Innovation Boulevard

Suite 118

State College, PA 16802

Attorneys for Petitioner

Jennifer J. Keeney, Esq.

Jesse M. Bless, Esq. [ARGUED]

Anthony C. Payne, Esq.

Colette J. Winston, Esq.

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878, Ben Franklin Station

Washington, D.C. 20044

Attorneys for Respondent

_________________

OPINION OF THE COURT

__________________

GREENAWAY, JR., Circuit Judge.

2

Carlton Baptiste petitions for review of a decision of

the Board of Immigration Appeals (“BIA”) ordering his

removal as an alien convicted of: (1) an “aggravated

felony” pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), which is

defined as, inter alia, a “crime of violence,” 18 U.S.C. § 16;

and (2) two or more crimes involving moral turpitude

(“CIMTs”) pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii).

Baptiste’s petition requires us to decide whether the

definition of a “crime of violence” provided in 18 U.S.C. §

16(b) is void for vagueness under the Due Process Clause of

the Fifth Amendment. Section 16(b) and similarly worded

statutes have come under attack in federal courts across the

country after the Supreme Court’s decision in Johnson v.

United States, 135 S. Ct. 2551 (2015), which invalidated the

so-called “residual clause” of the Armed Career Criminal

Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), as

unconstitutionally vague.

Although we initially conclude that Baptiste’s New

Jersey second-degree aggravated assault conviction was for

a crime of violence pursuant to § 16(b), we are persuaded

that the definition of a crime of violence in § 16(b) is

unconstitutionally vague after Johnson. We therefore

invalidate § 16(b) and hold that Baptiste was not convicted

of an aggravated felony. However, we conclude that

Baptiste is nonetheless removable because he was convicted

of two or more CIMTs.

Accordingly, we will grant the petition in part as it

relates to the BIA’s aggravated felony determination, deny

the petition in part as it relates to the BIA’s CIMT

determination, and remand the case to the BIA for further

proceedings so that Baptiste may apply for any relief from

3

removal that was previously unavailable to him as an alien

convicted of an aggravated felony.

I. FACTUAL BACKGROUND AND PROCEDURAL

HISTORY

A. Factual Background

Petitioner Carlton Baptiste is a native of Trinidad and

Tobago who was admitted to the United States as a lawful

permanent resident in 1972. On December 15, 1978,

Baptiste was convicted of atrocious assault and battery

pursuant to former N.J. Stat. Ann. § 2A:90-1 (West 1969)

(the “1978 Conviction”). There is no indication from the

administrative record as to the facts underlying this

conviction. Baptiste was sentenced to a suspended twelve-

month term of imprisonment and placed on probation for

one year.

Over thirty years later, on April 8, 2009, Baptiste

was convicted of second-degree aggravated assault pursuant

to N.J. Stat. Ann. § 2C:12-1b(1) (West 2005) (the “2009

Conviction”). 1 That statute provides that “[a] person is

guilty of aggravated assault if he . . . [a]ttempts to cause

serious bodily injury to another, or causes such injury

purposely or knowingly or under circumstances manifesting

extreme indifference to the value of human life recklessly

causes such injury.” N.J. Stat. Ann. § 2C:12-1b(1) (West

2005). As with his earlier conviction, there is no indication

1

We use the term “second-degree aggravated

assault” throughout this opinion to refer to the crime

defined at N.J. Stat. Ann. § 2C:12-1b(1) (West 2005).

4

from the administrative record as to the facts underlying

Baptiste’s 2009 Conviction. There is also no indication

from the administrative record as to whether Baptiste

pleaded guilty to the attempt crime in the statute, or, if he

pleaded guilty to the completed crime, to which mental state

in the statute Baptiste pleaded guilty to possessing—

purpose, knowledge or recklessness. See A.R. 334. He was

sentenced to a five-year term of imprisonment.

B. Procedural History

In June 2013, the Department of Homeland Security

(“DHS”) instituted removal proceedings against Baptiste.

DHS asserted that, based on his 2009 Conviction, Baptiste

was removable as an alien convicted of a crime of violence

pursuant to 18 U.S.C. § 16 and, therefore, an aggravated

felony pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). DHS later

asserted that Baptiste was also removable, based on both his

1978 Conviction and his 2009 Conviction, as an alien

convicted of “two or more crimes involving moral turpitude,

not arising out of a single scheme of criminal misconduct”

pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii). On October 8,

2013, the Immigration Judge (“IJ”) sustained both charges

of removability. Baptiste appealed the IJ’s determinations

to the BIA.

The BIA agreed with the IJ’s determination that the

2009 Conviction was for a crime of violence. It reasoned

that, in order to qualify as a crime of violence under § 16(b),

“the nature of [a] crime . . . must be such that its

commission ordinarily would present a risk that physical

force would be used against the person . . . of another,

irrespective of whether the risk develops or harm actually

occurs.” A.R. 4. Accordingly, the BIA determined that

5

“the relevant question . . . is whether the offense (whatever

its mens rea may be) is one that inherently involves a

person acting in conscious disregard of the risk that, in the

course of its commission, he may ‘use’ physical force

against the person of another.” A.R. 4. Under these

principles, the BIA concluded that:

[A]n individual who undertakes to cause

serious bodily injury to another under

circumstances manifesting extreme

indifference to human life necessarily

disregards the substantial risk that in the

course of committing that offense he will use

physical force against another, either to effect

the serious bodily injury that the statute

requires or to overcome the victim’s

resistance or both.

A.R. 4−5.

The BIA also agreed with the IJ’s determination that

the 2009 Conviction was for a CIMT. 2 It examined the

manner in which New Jersey courts have construed the

recklessness crime in Baptiste’s statute of conviction and

observed that:

New Jersey courts hold that an individual acts

under circumstances manifesting an extreme

indifference to the value of human life if he acts

2

Baptiste did not contest before the BIA, and does

not contest in his petition for review before this Court, the

IJ’s conclusion that his 1978 Conviction was for a CIMT.

6

with conscious awareness of the fact that his

conduct bears a substantial risk that he will kill

another and he conducts himself with no regard

to that risk.

A.R. 5. Based on that observation, the BIA concluded that

“an individual cannot form the culpable mental state and

commit the culpable acts required for conviction . . .

without acting in a base, vile or depraved manner and

without consciously disregarding a substantial risk that he

will kill another.” A.R. 6.

Accordingly, the BIA dismissed Baptiste’s appeal.

Baptiste filed a timely petition for review with this Court on

November 14, 2014.

II. JURISDICTION AND STANDARD OF REVIEW

The BIA had appellate jurisdiction over the IJ’s order

of removal pursuant to 8 C.F.R. § 1003.1(b)(3). We have

jurisdiction over Baptiste’s petition for review of the BIA’s

dismissal of his appeal pursuant to 8 U.S.C. § 1252(a)(1).

“Where, as here, the BIA issues a written decision on

the merits, we review its decision and not the decision of the

IJ.” Bautista v. Att’y Gen. of the U.S., 744 F.3d 54, 57 (3d

Cir. 2014). Because an assessment of whether a crime

constitutes a crime of violence pursuant to 18 U.S.C. §

16(b) implicates the criminal provisions of the U.S. Code,

we exercise de novo review over the BIA’s determination

that the 2009 Conviction was for a crime of violence and,

therefore, an aggravated felony. Aguilar v. Att’y Gen. of the

U.S., 663 F.3d 692, 695 (3d Cir. 2011). Similarly, we

review Baptiste’s due process challenge to the definition of

7

a crime of violence in § 16(b) de novo. Abdulrahman v.

Ashcroft, 330 F.3d 587, 595−96 (3d Cir. 2003).

Since the BIA’s determination that the 2009

Conviction was for a CIMT was made in an unpublished,

non-precedential decision issued by a single BIA member,

we do not accord that determination any deference, and it is

“[a]t most . . . persuasive authority.” Mahn v. Att’y Gen. of

the U.S., 767 F.3d 170, 173 (3d Cir. 2014). We therefore

review the BIA’s CIMT determination de novo as well.

III. ANALYSIS

A. Baptiste’s 2009 Conviction was for a “crime of

violence” under § 16(b)

An alien who is convicted of an “aggravated felony”

after his admission to the United States is removable

pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). The term

“aggravated felony” is defined as, inter alia, a “crime of

violence (as defined in [18 U.S.C. § 16], but not including a

purely political offense) for which the term of imprisonment

[is] at least one year.”3 8 U.S.C. § 1101(a)(43)(F). Thus, in

order to determine whether Baptiste’s 2009 Conviction was

for an aggravated felony, we must first examine the

definition of a “crime of violence” in 18 U.S.C. § 16.

Aguilar, 663 F.3d at 695. After having “ascertain[ed] the

3

Baptiste does not dispute that his 2009 Conviction

was for a crime for which the term of imprisonment is at

least one year.

8

definition of a ‘crime of violence,’” we must then compare

that definition to the statute of conviction to determine

whether the applicable crime defined in the statute of

conviction is categorically a crime of violence—an inquiry

known as the “categorical approach.” Id.

1. Definition of a “crime of violence”

A “crime of violence” is defined, in relevant part, as

an 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(b) (emphasis

added). 4 That definition requires “specific intent to use

force” or, in other words, “the intentional employment of . .

. force, generally to obtain some end.” Tran v. Gonzales,

414 F.3d 464, 470−71 (3d Cir. 2005); see Leocal v.

Ashcroft, 543 U.S. 1, 9 (2004) (“‘[U]se’ requires active

employment.” (emphasis added)). Thus, a crime of

violence under § 16(b) is one that involves a substantial risk

that force will be “actively employ[ed]” “in the furtherance

of the offense.” Tran, 414 F.3d at 471.

Within this framework, we have distinguished

between those types of recklessness crimes that may be

4

Section 16(a) alternatively defines a “crime of

violence” as “an offense that has as an element the use,

attempted use, or threatened use of physical force against

the person or property of another.” 18 U.S.C. § 16(a).

However, the BIA did not address this alternative statutory

definition and so we similarly do not address it here. See Li

v. Att’y Gen. of the U.S., 400 F.3d 157, 163 (3d Cir. 2005).

9

considered crimes of violence under § 16(b) and those that

may not be so considered. On the one hand, we have held

that “pure” recklessness crimes are generally not crimes of

violence under § 16(b). Aguilar, 663 F.3d at 697. Pure

recklessness exists when “the perpetrator runs ‘no risk of

intentionally using force in committing his crime.’” Id. at

698 (quoting Tran, 414 F.3d at 465). For example, reckless

burning is not a crime of violence under § 16(b) because

“the risk [is] that the fire started by the offender will spread

and damage the property of another,” which “cannot be said

to involve the intentional use of force.” Tran, 414 F.3d at

472. Similarly, crimes that only “raise[] a substantial risk

that accidental, not intentional, force [will] be used,” such

as reckless vehicular homicide, are not crimes of violence

under § 16(b). Aguilar, 663 F.3d at 699. “The idea of

purposeful action, of actively employing a means to achieve

an end, is an essential component of both ‘use’ and ‘intent,’

and is absent from the concept of ‘recklessness.’” Tran,

414 F.3d at 471.5

5

The Supreme Court recently addressed the concept

of “using” force in the related context of 18 U.S.C. §

922(g)(9). See Voisine v. United States, 136 S. Ct. 2272

(2016). Section 922(g)(9) “prohibits any person convicted

of a ‘misdemeanor crime of domestic violence’ from

possessing a firearm.” Id. at 2276 (quoting 18 U.S.C. §

922(g)(9)). The phrase “misdemeanor crime of domestic

violence” is defined “to include any misdemeanor

committed against a domestic relation that necessarily

involves the ‘use . . . of physical force.’” Id. (alteration in

original) (emphasis added) (quoting 18 U.S.C.

§ 921(a)(33)(A)). The question before the Court was

10

whether reckless assaults fell within that definition. Id. at

2278.

In answering that question in the affirmative, the

Court observed that an actor who is reckless “with respect

to the harmful consequences of his volitional conduct” can

“use” force within the meaning of § 921(a)(33)(A). Id. at

2279. To illustrate its point, the Court posited a

hypothetical situation in which “a person throws a plate in

anger against a wall near where his wife is standing.” Id.

“That hurl counts as a ‘use’ of force even if the husband did

not know for certain (or have as an object), but only

recognized a substantial risk, that a shard from the plate

would ricochet and injure his wife.” Id.

One need not stretch the imagination to see that

applying the Court’s formulation in Voisine to the § 16(b)

context might sweep into the provision’s ambit the pure

recklessness and accidental force recklessness crimes

described above. Both reckless burning and reckless

vehicular homicide involve volitional acts “undertaken with

awareness of their substantial risk of causing injury.” Id.

However, noting “differences in [the] contexts and

purposes” of § 921(a)(33)(A) and § 16, the Court went out

of its way to make clear that its decision in Voisine “does

not resolve whether § 16 includes reckless behavior.” Id. at

2280 n.4. Since we conclude Baptiste’s 2009 Conviction

falls within our more-circumscribed interpretation of

§ 16(b), we need not examine to what extent the reasoning

of Voisine applies in the § 16(b) context to broaden our

existing interpretation of the provision. We leave that

question for another day.

11

However, in contrast to those types of recklessness

crimes, we have recognized that some recklessness crimes

“raise a substantial risk that the perpetrator will resort to

intentional physical force in the course of committing the

crime” and so are crimes of violence under § 16(b).

Aguilar, 663 F.3d at 699. In Aguilar v. Attorney General,

we held that the Pennsylvania crime of reckless sexual

assault is a crime of violence under § 16(b). Id. at 700−02.

Although a defendant may act with a reckless state of mind

in committing the offense, we observed that the defendant’s

actions create a “substantial risk . . . that . . . the offender

will intentionally use force to overcome the victim’s natural

resistance against participating in unwanted intercourse.”

Id. at 702.

2. The categorical approach

In determining whether Baptiste’s 2009 Conviction

was for a crime of violence under the foregoing principles,

we must use the “categorical approach” set forth by the

Supreme Court in Taylor v. United States, 495 U.S. 575

(1990). The categorical approach is used in a variety of

contexts to determine whether a criminal conviction meets

the requirements of a federal statute triggering some form of

sentencing or immigration consequence. See Rojas v. Att’y

Gen. of the U.S., 728 F.3d 203, 214 (3d Cir. 2013) (en

banc); see, e.g., United States v. Tucker, 703 F.3d 205, 209

(3d Cir. 2012) (“serious drug offense” requirement in the

ACCA triggering sentencing enhancement); Restrepo v.

Att’y Gen. of the U.S., 617 F.3d 787, 791 (3d Cir. 2010)

(“sexual abuse of a minor” requirement in the INA

12

triggering removability). Under this approach, we do not

consider the facts underlying Baptiste’s conviction (i.e., the

conduct giving rise to his conviction). See Aguilar, 663

F.3d at 695. Instead, we “compare [the] federal definition

[of a crime of violence] to the statute of conviction” itself to

determine whether the applicable crime defined in the

statute of conviction is categorically a crime of violence.

Id.

The statute of conviction at issue here provides that

“[a] person is guilty of aggravated assault if he . . .

[a]ttempts to cause serious bodily injury to another, or

causes such injury purposely or knowingly or under

circumstances manifesting extreme indifference to the value

of human life recklessly causes such injury.” N.J. Stat. Ann.

§ 2C:12-1b(1) (West 2005). The parties agree that, since

the administrative record does not reveal to which crime in

the statute of conviction Baptiste pleaded guilty, we should

look to the recklessness crime in the statute—recklessly

causing serious bodily injury to another under

circumstances manifesting extreme indifference to the value

of human life. Thus, the question we must answer is

whether recklessly causing serious bodily injury to another

under circumstances manifesting extreme indifference to the

value of human life is categorically a crime of violence

under § 16(b).

However, the foregoing formulation begs the

question: what does it mean to say that a crime defined in a

statute of conviction is categorically a crime of violence

under § 16(b)?

Baptiste and the Attorney General advocate opposing

approaches to this question. Baptiste points us to our

13

decision in Aguilar, in which we observed without further

exposition that only if the “least culpable conduct necessary

to sustain conviction under [a] statute” constitutes a crime

of violence can the applicable crime defined in the statute

be deemed categorically a crime of violence under § 16(b).

Aguilar, 663 F.3d at 695 (emphasis added) (internal

quotation marks omitted) (quoting Denis v. Att’y Gen. of the

U.S., 633 F.3d 201, 206 (3d Cir. 2011))..6 Baptiste argues

that the least culpable conduct for which there is a

possibility of conviction for reckless second-degree

aggravated assault is drunk driving manifesting extreme

indifference to the value of human life and resulting in

serious bodily injury to another. See, e.g., State v.

Kromphold, 744 A.2d 640, 646 (N.J. 2000); State v.

Sweeney, No. 12-08-1429, 2015 WL 6442334, at *1–*2

(N.J. Super. Ct. App. Div. Oct. 26, 2015). Thus, under

Baptiste’s view, only if that least culpable conduct meets

the definition of a crime of violence in § 16(b) can the

recklessness crime in his statute of conviction be deemed

categorically a crime of violence pursuant to § 16(b).

The Attorney General counters that we must instead

look to the conduct associated with the “ordinary case” of

reckless second-degree aggravated assault—not the least

culpable conduct. The ordinary case inquiry finds its roots

6

Although we have not had occasion to interpret the

“least culpable conduct” language in the § 16(b) context, we

have interpreted it in the CIMT context to mean that “the

possibility of conviction for non-turpitudinous conduct,

however remote, is sufficient to avoid removal.” Jean-

Louis v. Att’y Gen. of the U.S., 582 F.3d 462, 471 (3d Cir.

2009).

14

in the Supreme Court’s opinion in James v. United States,

550 U.S. 192 (2007), which addressed the operation of the

categorical approach in the related ACCA residual clause

context. In James, the Court examined whether a

defendant’s conviction in Florida for attempted burglary fell

within the ACCA residual clause definition of a “violent

felony.” The residual clause defines “violent felony” in

relation to a list of enumerated offenses, such as burglary

and extortion, as a crime that “otherwise involves conduct

that presents a serious potential risk of physical injury to

another.” 18 U.S.C. § 924(e)(2)(B)(ii). The defendant

argued that, under the categorical approach, all cases of

attempted burglary under his statute of conviction had to

present a serious potential risk of physical injury to another

before attempted burglary could be deemed categorically a

violent felony. James, 550 U.S. at 207.

The Court concluded that the defendant’s argument

“misapprehend[ed] Taylor’s categorical approach.” Id. at

208. “[E]very conceivable factual offense covered by a

statute” need not “necessarily present a serious potential

risk of injury before the offense can be deemed a violent

felony.” Id. Rather, the Court concluded that the “proper

inquiry” under the categorical approach is “whether the

conduct encompassed by the elements of the offense, in the

ordinary case, presents a serious potential risk of injury to

another.” 7 Id. (emphasis added); see United States v.

Stinson, 592 F.3d 460, 466 (3d Cir. 2010).

7

This past year, the Supreme Court re-affirmed the

applicability of the ordinary case inquiry from James to the

categorical approach in the ACCA residual clause context.

Johnson, 135 S. Ct. at 2557. However, it later held the

15

Although James was decided several years before

our opinion in Aguilar, we did not consider in Aguilar

whether the James ordinary case inquiry from the ACCA

residual clause context should displace the least culpable

conduct inquiry in the § 16(b) context. 8 However, since

James, nearly all of our sister circuits have adopted the

ordinary case inquiry in the § 16(b) context. See United

States v. Vivas-Ceja, 808 F.3d 719, 722−23 (7th Cir. 2015);

United States v. Keelan, 786 F.3d 865, 871 (11th Cir. 2015);

United States v. Avila, 770 F.3d 1100, 1107 (4th Cir. 2014);

United States v. Fish, 758 F.3d 1, 13 (1st Cir. 2014);

Rodriguez-Castellon v. Holder, 733 F.3d 847, 854 (9th Cir.

2013); United States v. Echeverria-Gomez, 627 F.3d 971,

978 (5th Cir. 2010) (per curiam); Van Don Nguyen v.

Holder, 571 F.3d 524, 530 (6th Cir. 2009); United States v.

Sanchez-Garcia, 501 F.3d 1208, 1213 (10th Cir. 2007).

Additionally, the BIA reached the same conclusion last

residual clause unconstitutionally vague due, in part, to the

indeterminacy of the required ordinary case inquiry. Id.

8

Because Aguilar did not decide this question or

address the Supreme Court’s precedent in James, we may

decline to use Aguilar’s least culpable conduct inquiry if we

determine that the ordinary case inquiry is the correct

analytical approach. See United States v. Tann, 577 F.3d

533, 542 (3d Cir. 2009). Moreover, the Supreme Court’s

recent decision in Johnson, in which it re-affirmed the

applicability of the ordinary case inquiry, see supra note 7,

constitutes an intervening Supreme Court decision, which is

also a “sufficient basis” for us to reevaluate our precedent in

Aguilar. Leb. Farms Disposal, Inc. v. County. of Lebanon,

538 F.3d 241, 249 n.16 (3d Cir. 2008).

16

year. See In re Mario Francisco-Alonzo, 26 I. & N. Dec.

594, 601 (B.I.A. 2015).

We are persuaded that the ordinary case inquiry is

the correct analytical approach in the § 16(b) context.

Section 16(b) requires courts to ask whether a crime “by its

nature” presents a substantial risk of the use of force.

Accordingly, in Leocal v. Ashcroft—the Supreme Court’s

only § 16(b) case—the Court stated that § 16(b) “covers

offenses that naturally involve a person acting in disregard

of the risk that physical force might be used against another

in committing an offense.” 543 U.S. at 10 (emphasis

added). As a matter of plain language, asking whether the

least culpable conduct sufficient to support a conviction for

a crime presents a certain risk is inconsistent with asking

whether that crime “by its nature” or “naturally” presents

that risk. See Perez-Munoz v. Keisler, 507 F.3d 357, 364

(5th Cir. 2007) (noting that every violation of a state

criminal statute “need not be violent” for the crime “to be a

crime of violence by its nature” (emphasis added)); United

States v. Lucio-Lucio, 347 F.3d 1202, 1204 n.2 (10th Cir.

2003) (“We do not take the phrase ‘by its nature’ as an

invitation to search for exceptional cases.”).

By contrast to the least culpable conduct inquiry, the

Supreme Court’s ordinary case inquiry is aligned with the

“by its nature” inquiry that the text of § 16(b) requires.

Asking whether the “ordinary case” of a crime presents a

certain risk is the equivalent of asking whether that crime

“by its nature” presents that same risk. The Court’s

description of the ordinary case inquiry as asking whether

“an offense is of a type that, by its nature” presents a certain

17

risk 9 demonstrates the equivalence of the two inquiries. 10

James, 550 U.S. at 209 (emphasis added). Accordingly, we

9

Although the residual clause does not include the

“by its nature” language in its text, it is clear from this

statement that the Court has read the same “by its nature”

requirement as exists in § 16(b) into the residual clause. See

Shuti v. Lynch, 828 F.3d 440, 446—47 (6th Cir. 2016);

Vivas-Ceja, 808 F.3d at 722.

10

We are mindful that the Supreme Court used a

“least of the acts criminalized” inquiry when undertaking

the categorical approach in Moncrieffe v. Holder, 133 S. Ct.

1678, 1684−85 (2013). See also Mellouli v. Lynch, 135 S.

Ct. 1980, 1986 (2015). This inquiry asks whether “a

conviction of the state offense ‘necessarily involved . . .

facts equating to [the] generic [federal offense],’”

Moncrieffe, 133 S. Ct. at 1684 (alterations in original)

(internal quotation marks omitted) (quoting Shepard v.

United States, 544 U.S. 13, 24 (2005)), and so we view it as

synonymous with the least culpable conduct inquiry from

Aguilar. However, we conclude that this inquiry is not

applicable in the § 16(b) context.

Moncrieffe involved a determination of whether a

predicate crime met the definition of a specific federal

generic offense—“illicit trafficking in a controlled

substance,” id. at 1683; 8 U.S.C. § 1101(a)(43)(B). Other

specific federal generic offenses include a “theft offense,” 8

U.S.C. § 1101(a)(43)(G), “burglary offense,” id., and

“sexual abuse of a minor,” id. § 1101(a)(43)(A). The

specific federal generic offense analysis is different in kind

from the analysis required by § 16(b).

18

adopt the ordinary case inquiry as part of the categorical

approach in § 16(b) cases.

3. Application of the categorical approach

Given our adoption of the ordinary case inquiry in

the § 16(b) context, we now must determine how to

ascertain the ordinary case of reckless second-degree

aggravated assault. The first step in making this

determination is defining the term “ordinary.” Black’s Law

Dictionary defines “ordinary” as “[o]ccuring in the regular

course of events,” “normal,” and “usual.” Black’s Law

Dictionary 1273 (10th ed. 2014). Other circuits have

defined the ordinary case in a way consistent with this

definition. See Rodriguez-Castellon, 733 F.3d at 854

(looking to the “usual” violation of a statute); United States

v. Sonnenberg, 628 F.3d 361, 366 (7th Cir. 2010) (looking

A specific federal generic offense provision requires

a court to determine whether a predicate crime is, for

example, a “theft offense.” By contrast, § 16(b) requires a

court to determine whether a predicate crime, by its nature,

poses a certain risk. This linguistic distinction explains why

the least of the acts criminalized inquiry is appropriate for

specific federal generic offense cases, but the ordinary case

inquiry is appropriate for § 16(b) cases. See Rodriguez-

Castellon, 733 F.3d at 861 (“[A] court considering whether

a state statute meets the definition of ‘sexual abuse of a

minor’ must consider cases ‘at the margins of the statute,’

but a court performing an analysis of ‘substantial risk’

under § 16(b) may not do so.” (quoting Delgado-Hernandez

v. Holder, 697 F.3d 1125, 1129 (9th Cir. 2012))); In re

Mario Francisco-Alonzo, 26 I. & N. Dec. at 599−600.

19

to the “typical case”); Van Don Nguyen, 571 F.3d at 530

(looking to “the mainstream of prosecutions brought under

the statute”); see also Sykes v. United States, 564 U.S. 1, 40

n.4 (2011) (Kagan, J., dissenting) (defining the ordinary

case of a crime as the “most common form” of that crime).

Therefore, in ascertaining the ordinary case of reckless

second-degree aggravated assault, we will look to the

conduct associated with the normal or usual commission of

the crime.

There is little guidance as to how we should go about

identifying that conduct. See Johnson, 135 S. Ct. at 2557.

Indeed, during oral argument, neither advocate was able to

articulate the ordinary case of reckless second-degree

aggravated assault. “How does one go about deciding what

kind of conduct the ‘ordinary case’ of a crime involves? ‘A

statistical analysis of the state reporter? A survey? Expert

evidence? Google? Gut instinct?’” Id. (quoting United

States v. Mayer, 560 F.3d 948, 952 (9th Cir. 2009)

(Kozinski, C.J., dissenting from denial of rehearing en

banc)). Although we ultimately conclude that the

indeterminate nature of the ordinary case inquiry

contributes to § 16(b)’s unconstitutionality, we must first

undertake the analysis as best we can to determine whether

Baptiste’s 2009 Conviction was for a crime of violence.

See Egolf v. Witmer, 526 F.3d 104, 109 (3d Cir. 2008) (“We

have a longstanding practice of

avoiding constitutional questions in cases where we can

reach a decision upon other grounds.”).

In the absence of any empirical analysis of

convictions for reckless second-degree aggravated assault,

we are limited to examining New Jersey case law to

determine what conduct is associated with the ordinary case

20

of the crime. Our review of case law is complicated in this

case because the statute of conviction at issue includes

several crimes (an attempt crime and a completed crime

phrased with several disjunctive mental states) and the

conviction documents of defendants prosecuted under the

statute often do not specify which crime in the statute the

defendant was convicted of committing. See United States

v. Garcia-Jimenez, 807 F.3d 1079, 1081 (9th Cir. 2015);

see, e.g., State v. Watkins, No. 12-02-0369, 2015 WL

9694386, at *2 (N.J. Super. Ct. App. Div. Jan. 4, 2016)

(verdict sheet for second-degree aggravated assault did not

differentiate mental states). This lack of specificity makes it

impossible in many cases to determine whether a defendant

was convicted of the crime at issue in this case—reckless

second-degree aggravated assault—or the other crimes

specified in the statute.11

However, based on our review of pertinent case law,

we observe that there is a wide array of conduct for which a

defendant can be convicted for reckless second-degree

aggravated assault. For purposes of our analysis, we group

this conduct into three categories: (1) conduct that itself

constitutes an intentional use of force; (2) conduct that

presents a substantial risk of the intentional use of force;

and (3) conduct that presents no risk of the intentional use

of force.

11

Given the dearth of New Jersey cases that make

clear a defendant was convicted of the recklessness crime in

the statute, we are forced to depart from our typical practice

and cite to unpublished New Jersey opinions.

21

a) Intentional use of force

A defendant can be convicted for reckless second-

degree aggravated assault if he intentionally uses force

against a victim and is reckless as to whether that force will

cause “serious bodily injury.” See State v. Jaramillo, No.

04-01-0140, 2008 WL 3890655, at *11 (N.J. Super. Ct.

App. Div. Aug. 25, 2008) (per curiam) (noting that a jury

was entitled to find the defendant guilty of reckless second-

degree aggravated assault for punching the victim); State v.

Battle, 507 A.2d 297, 299 (N.J. Super. Ct. App. Div. 1986)

(observing that a thief’s forceful snatching of a victim’s

purse, which leads to her serious bodily injury, could

constitute reckless second-degree aggravated assault). A

recent case from the New Jersey courts addressing the

closely-related crime of reckless third-degree aggravated

assault12 is illustrative.

12

We use the term “third-degree aggravated assault”

here to refer to the crime defined at N.J. Stat. Ann. § 2C:12-

1b(7) (West 2005). Reckless third-degree aggravated

assault is in all material respects identical to reckless

second-degree aggravated assault with the exception that

reckless third-degree aggravated assault results in

“significant bodily injury” as opposed to “serious bodily

injury.” Compare N.J. Stat. Ann. § 2C:12-1b(7) (West

2005) with N.J. Stat. Ann. § 2C:12-1b(1) (West 2005).

22

In State v. Steffen, No. 09-11-2753, 2012 WL

3155553, at *1−*2 (N.J. Super. Ct. App. Div. Aug. 6, 2012)

(per curiam), the defendant was convicted of reckless third-

degree aggravated assault after using a “choke slam” to

subdue the victim. As a result of the choke slam, the victim

suffered a hematoma and temporary loss of sight. Id. at *2.

The trial court determined that the defendant had “acted

‘recklessly under circumstances manifesting extreme

indifference to the value of human life,’” id. at *1, and the

reviewing court affirmed the trial court’s verdict, id. at *2.

Such conduct, which involved choke slamming the

victim, itself involves the intentional use of force and so

clearly meets the requirements of § 16(b).13 See Jimenez-

13

In addition, there are examples of second-degree

aggravated assault convictions in New Jersey for conduct

clearly involving the intentional use of force for which it is

unclear with what mental state the defendant was convicted

of acting. As we alluded to above, in such cases, the

defendant pleads guilty, or the judge or jury returns a

verdict of guilty, to the general offense of causing serious

bodily injury purposely or knowingly or recklessly under

circumstances manifesting extreme indifference to the value

of human life. See, e.g., Watkins, 2015 WL 9694386, at *1–

*2 (defendant kicked an elderly man and was convicted

without designation of mental state); State v. Fowlkes, No.

05-09-1271, 2010 WL 86412, at *1–*3 (N.J. Super. Ct.

App. Div. Jan. 12, 2010) (per curiam) (defendant punched

victim and hit victim with a broom and was convicted

without designation of mental state).

It stands to reason that some of these convictions,

which involve the intentional use of force and do not

23

Gonzalez v. Mukasey, 548 F.3d 557, 561 (7th Cir. 2008)

(examining cases holding that recklessness crimes are

crimes of violence under § 16(b) as involving

“intentional conduct exhibiting a reckless disregard to the

likelihood of injury”); Blake v. Gonzales, 481 F.3d 152, 161

n.6 (2d Cir. 2007) (finding a crime to be a crime of violence

under § 16(b) where, under one theory of violation, “the

perpetrator intends the conduct, and . . . recklessness is

the mens rea with respect to the likelihood of physical

harm” (alteration in original) (internal quotation marks

omitted)).

b) Substantial risk of intentional use of force

A defendant can also be convicted for conduct that,

while itself not constituting an intentional use of force,

presents a substantial risk that he will intentionally use

force. For example, in State v. Colon, 689 A.2d 1359,

1361−62 (N.J. Super. Ct. App. Div. 1997), the defendant’s

friend was being battered by a group of men outside a bar.

The bar’s bouncer testified that he had grabbed hold of one

of the men and was pulling him off of the defendant’s friend

when that man was shot. Id. at 1361. The jury found that

the defendant had shot the victim, but acquitted him of

purposeful or knowing aggravated assault; instead, it

convicted him only of reckless second-degree aggravated

assault. Id. at 1362 n.3, 1364. Although several theories of

the crime could have supported the jury’s verdict, relevant

designate a mental state, are based on a reckless mental

state whereby the defendant, as in Steffen, intentionally used

force but was reckless as to the possibility of serious bodily

injury.

24

for our purposes is the court’s comment that the verdict

could have been the result of a jury finding that the

defendant “recklessly fired [his] weapon.” Id. at 1364.

As we explained above, we determined in Aguilar

that a reckless sexual assault is a crime of violence because

there is a substantial risk that the defendant will encounter

resistance from the victim and then decide to intentionally

use force to “overcome” the victim. See Aguilar, 663 F.3d

at 701−02. Similarly, in Colon, once the defendant

recklessly fired his weapon and hit the victim, there was a

substantial risk that the victim would fight back and that the

defendant would then decide to intentionally fire his

weapon (i.e., intentionally use force against the victim).

Although not a certainty, the reckless firing of the weapon

created a substantial risk of that result, which is all that §

16(b) requires.14

14

Although this analysis considers conduct and

events taking place after the recklessness crime has

technically been completed, it is consistent with our prior

interpretations of the “in course of committing the offense”

language in § 16(b). See 18 U.S.C. § 16(b) (defining a

crime of violence as “a felony . . . 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)).

For example, we observed in Aguilar, in dicta, that

burglary is a crime of violence under § 16(b). Aguilar, 663

F.3d at 698; see Leocal, 543 U.S. at 10 (observing that

burglary is the “classic example” of a crime of violence

under § 16(b)). The crime of burglary—breaking and

25

entering a dwelling at night to commit a felony—is

technically complete as soon as the defendant has entered

the dwelling. However, we observed that burglary is a

crime of violence under § 16(b) because “burglary creates a

substantial risk that the burglar will have to use physical

force to overcome the desire of home occupants to protect

themselves and their property.” Aguilar, 663 F.3d at 701.

This risk only materializes after the defendant has entered

the dwelling and thus after the crime of burglary has been

completed. See id. (identifying the risk of the use of force

as being “created by an unlawful entry into a victim’s

home”); Henry v. Bureau of Immigration & Customs Enf’t,

493 F.3d 303, 310 (3d Cir. 2007) (“[T]he requisite elements

of a burglary are complete once the burglar enters and

possesses the necessary mental intent. However, the

substantial risk that the burglar will use force comes from

the possibility that the burglar will encounter another during

the course of the burglary; it is irrelevant that the technical

elements have already been accomplished.”); cf. Johnson,

135 S. Ct. at 2557 (“[A] risk of injury arises . . . because the

burglar might confront a resident in the home after breaking

and entering.”).

Similarly, we observed in Ng v. Attorney General

that the use of interstate commerce facilities in the

commission of a murder-for-hire is a crime of violence

under § 16(b). Ng v. Att’y Gen. of the U.S., 436 F.3d 392,

397 (3d Cir. 2006). That crime is technically complete after

mere solicitation to commit a murder-for-hire and so

“proscribes conduct that may never pose a risk of violence.”

Id. Yet we observed that it is a crime of violence under

§ 16(b) because, even if “some violations . . . will never

26

c) No risk of intentional use of force

Finally, a defendant can be convicted for conduct

that presents no risk that he will intentionally use force.

Specifically, in accordance with Baptiste’s suggested least

culpable conduct, a defendant can be convicted for reckless

second-degree aggravated assault for drunk driving

manifesting extreme indifference to the value of human life

and resulting in serious bodily injury to another. See, e.g.,

Kromphold, 744 A.2d at 646; Sweeney, 2015 WL 6442334,

at *1–*2. Common to such drunk driving cases is that the

defendant did not intend to cause harm to the victim and so

is not “actively employ[ing]” force in committing the crime.

Leocal, 543 U.S. at 9; see Oyebanji v. Gonzales, 418 F.3d

260, 264 (3d Cir. 2005). Moreover, such conduct does not

present a “risk that the reckless[] offender will step in and

commit an intentional act of violence.” Tran, 414 F.3d at

472−73.

* * *

Our task is to determine, based on the foregoing

review of case law, what conduct is associated with the

culminate in . . . the commission of a murder[,] . . . the

natural consequence of [the commission of the crime] is that

physical force will be used upon another.” Id. But cf.

United States v. Hull, 456 F.3d 133, 140 (3d Cir. 2006)

(“[M]ere possession of a pipe bomb holds no risk of

the intentional use of force. . . . [T]he relevant inquiry is not

whether possession makes it more likely that a violent crime

will be committed, but instead whether there is a risk that in

committing the offense of possession, force will be used.”).

27

ordinary case of reckless second-degree aggravated assault.

Unsurprisingly, the Attorney General urges us to focus on

conduct in the first two categories and Baptiste urges us to

focus on conduct in the third category. In the absence of

any concrete guidance as to how to make this determination,

see Johnson, 135 S. Ct. at 2557−58, we must rely on our

common sense and judicial experience, see Sonnenberg,

628 F.3d at 366; Rodriguez-Castellon, 733 F.3d at 856.

We recognize that it is impossible in this case to

determine with precision what specific conduct is associated

with the ordinary case of the crime. The crime at issue in

this case covers a wide array of conduct—more than, say,

burglary. A defendant can be convicted of the crime for

conduct as dissimilar as an intentional act of physical

violence (first category of conduct) and drunk driving

causing accidental injury (third category of conduct). With

a crime that covers such a wide array of conduct, we begin

with the common sense proposition that the conduct

associated with the ordinary case of a conviction

presumptively lies at or near the middle of the culpability

spectrum15—here, the second category of conduct we have

identified.

15

We use the term “culpability spectrum” here to

refer to conduct that, on one end of the spectrum, presents

no risk of the intentional use of force (third category of

conduct) and, on the other end of the spectrum, involves an

intentional use of force (first category of conduct).

28

Baptiste’s single factual scenario to the contrary in

which there is no risk of the intentional use of force—a

drunk driver—is not enough to overcome this presumption.

We have seen nothing in our foregoing review of case law

that persuades us that the normal or usual commission of the

crime involves the actions of a drunk driver (third category

of conduct). Rather, we view such conduct as being

associated with a narrow subset of convictions and thus

insufficient to render the crime categorically not a crime of

violence under the ordinary case inquiry. Cf. Van Don

Nguyen, 571 F.3d at 530 (“[A]n unsubstantiated risk of

physical force in some small subset of cases is [in]sufficient

to classify [an] offense as a ‘crime of violence.’”). We

reach the same conclusion with respect to the first category

of conduct we have identified.

We therefore conclude that the conduct associated

with the ordinary case of reckless second-degree aggravated

assault lies somewhere within the second category of

conduct we have identified, which falls within the definition

of a crime of violence in § 16(b).16 See Johnson, 135 S. Ct.

at 2558 (referring to the ordinary case as a “judge-imagined

16

If this conclusion is unsatisfying, it is the result of

the indeterminacy of the ordinary case inquiry, which

requires us to determine what conduct is associated with the

normal conviction of the crime despite the broad swath of

disparate conduct it covers. See Johnson, 135 S. Ct. at 2559

(“How does common sense help a federal court discern

where the ‘ordinary case’ of vehicular flight in Indiana lies

along th[e] spectrum [of culpable conduct]?”). We address

this indeterminacy in the next section. See infra section

III.B.

29

abstraction”). Because we conclude that reckless second-

degree aggravated assault does, in the ordinary case, present

a substantial risk of the intentional use of force, reckless

second-degree aggravated assault in New Jersey is

categorically a crime of violence pursuant to § 16(b).

Given our conclusion that Baptiste was convicted of

a crime of violence pursuant to § 16(b), we now turn to the

constitutional question presented in this case—is § 16(b)

void for vagueness under the Due Process Clause of the

Fifth Amendment?

B. Section 16(b) is void for vagueness under the Due

Process Clause of the Fifth Amendment

The Due Process Clause precludes the government

from taking away a person’s life, liberty, or property under

a statute “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.

Baptiste argues that his 2009 Conviction was not for an

aggravated felony because the incorporated definition of a

crime of violence in 18 U.S.C. § 16(b) is unconstitutionally

vague. 17 Baptiste bases his argument on the Supreme

17

The Attorney General wisely does not contest

Baptiste’s assertion that he has a right under the Fifth

Amendment’s Due Process Clause to bring a void for

vagueness challenge to the definition of a crime of violence

in § 16(b). See Jordan v. De George, 341 U.S. 223, 231

(1951) (considering whether the phrase “crime involving

moral turpitude” was void for vagueness due to the “grave

nature of deportation”); Golicov v. Lynch, --- F.3d ----, No.

16-9530, 2016 WL 4988012, at *2−*3 (10th Cir. Sept. 19,

30

Court’s recent decision in Johnson v. United States, 135 S.

Ct. 2551 (2015), which invalidated the residual clause of the

ACCA.

The ACCA provides for a sentence enhancement for

certain defendants who have three or more prior convictions

for a “violent felony.” Id. at 2555. The Act defines

“violent felony” as, inter alia, a crime that is “burglary,

arson, or extortion, involves 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)(ii)

(emphasis added). The emphasized language is known as

the “residual clause.” As we explained above, prior to

Johnson’s holding that the residual clause is

unconstitutionally vague, courts assessing whether a crime

fell within the residual clause were required to use the same

2016); Shuti, 828 F.3d at 446 (“[B]ecause deportation strips

a non-citizen of his rights, statutes that impose this penalty

are subject to vagueness challenges under the Fifth

Amendment.”); Dimaya v. Lynch, 803 F.3d 1110, 1112−14

& n.4 (9th Cir. 2015), cert. granted, --- S. Ct. ----, No. 15-

1498, 2016 WL 3232911 (U.S. Sept. 29, 2016) (concluding

that an alien “may bring a void for vagueness challenge to

the definition of a ‘crime of violence’ in the INA” and

collecting cases from other circuits permitting similar

challenges). “It is well established that the Fifth

Amendment entitles aliens to due process of law in

deportation proceedings.” Demore v. Kim, 538 U.S. 510,

523 (2003) (internal quotation marks omitted) (quoting

Reno v. Flores, 507 U.S. 292, 306 (1993)); see, e.g., Denis,

633 F.3d at 218−19 (entertaining an alien’s procedural due

process challenge).

31

categorical approach that courts use in the § 16(b) context.

See supra section III.A.2. Thus, in “[d]eciding whether the

residual clause covers a crime,” a court had to “picture the

kind of conduct that the crime involves in ‘the ordinary

case,’ and . . . judge whether that abstraction presents a

serious potential risk of physical injury.” Johnson, 135 S.

Ct. at 2557 (quoting James, 550 U.S. at 208).

The majority in Johnson observed that two features

of the residual clause “conspire[d] to make it

unconstitutionally vague”—the ordinary case inquiry and

the serious potential risk inquiry. Id. at 2557−58. First, the

majority observed that there are many different conceptions

of what the ordinary case of a crime involves. Id. For

example, “does the ordinary instance of witness tampering

involve offering a witness a bribe? Or threatening a witness

with violence?” Id. at 2557. The majority concluded that

“[t]he residual clause offers no reliable way to choose

between . . . competing accounts of what [an] ‘ordinary’

[case] involves.” Id. at 2558. Second, the majority

observed that the clause left “uncertainty about how much

risk it takes for a crime to qualify as a violent felony.” Id.

Thus, the majority concluded that the combination of

“indeterminacy about how to measure the risk posed by a

crime with indeterminacy about how much risk it takes for

the crime to qualify as a violent felony . . . produces more

unpredictability and arbitrariness than the Due Process

Clause tolerates.” Id.

After reaching this conclusion, the majority

examined the residual clause precedents of both the

Supreme Court and the Courts of Appeals and determined

that “repeated failures to craft a principled and objective

standard out of the residual clause confirm its hopeless

32

indeterminacy.” Id. It then addressed several arguments

penned by the dissent. First, it rejected as inconsistent with

the Court’s precedents the dissent’s view that “a statute is

void for vagueness only if it is vague in all its applications.”

Id. at 2561. Second, the majority dismissed the dissent’s

concern that the invalidation of the residual clause for

vagueness would cast constitutional doubt over laws similar

to the residual clause that use terms such as “substantial

risk.” Id. The majority reasoned that such laws do not link

the phrase “substantial risk” to a “confusing list of

examples,” and, “[m]ore importantly . . . require gauging

the riskiness of conduct in which an individual defendant

engages on a particular occasion.” Id. Finally, the

majority rejected the dissent’s invitation to abandon the

ordinary case inquiry and interpret the residual clause to

“refer to the risk posed by the particular conduct in which

the defendant engaged.” Id. at 2561−62.

In addressing whether Johnson compels the

invalidation of § 16(b), we do not write on a blank slate.

The Sixth, Seventh, Ninth, and Tenth Circuits have

considered the question and concluded that Johnson does

render § 16(b) void for vagueness. See Shuti v. Lynch, 828

F.3d 440 (6th Cir. 2016); United States v. Vivas-Ceja, 808

F.3d 719 (7th Cir. 2015); Dimaya v. Lynch, 803 F.3d 1110

(9th Cir. 2015), cert. granted, --- S. Ct. ----, No. 15-1498,

2016 WL 3232911 (U.S. Sept. 29, 2016); Golicov v. Lynch,

--- F.3d ----, No. 16-9530, 2016 WL 4988012 (10th Cir.

Sept. 19, 2016). By contrast, the en banc Fifth Circuit has

concluded that § 16(b) is not unconstitutionally vague after

Johnson, and the Second and Eighth Circuits have

concluded that 18 U.S.C. § 924(c)(3)(B), which contains

33

nearly identical language to § 16(b), 18 survives Johnson.

See United States v. Prickett, --- F.3d ----, No. 15-3486,

2016 WL 5799691 (8th Cir. Oct. 5, 2016); United States v.

Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016) (en banc);

United States v. Hill, 832 F.3d 135 (2d Cir. 2016). We

enter the fray with the benefit of these considered opinions

on § 16(b)’s constitutionality.

The two features of the residual clause that the

Supreme Court concluded “conspire[d] to make [the

residual clause] unconstitutionally vague” were the ordinary

case inquiry and the serious potential risk inquiry. Johnson,

135 S. Ct. at 2557−58; see United States v. Calabretta, 831

F.3d 128, 133 (3d Cir. 2016). Given that the ordinary case

inquiry, as used in the § 16(b) context, is derived from the

residual clause context, we can be certain that the ordinary

case inquiry is identical in both contexts. As we described

above, in the § 16(b) context, a court must ask “whether the

conduct encompassed by the elements of the offense, in the

ordinary case, presents a [substantial risk of the intentional

use of force].” James, 550 U.S. at 208 (emphasis added).

18

Before the Sixth Circuit’s decision in Shuti holding

§ 16(b) to be vague, a panel of the Sixth Circuit had

concluded that § 924(c)(3)(B) was not unconstitutionally

vague after Johnson. See United States v. Taylor, 814 F.3d

340 (6th Cir. 2016). However, in Shuti, the Sixth Circuit

distinguished Taylor, noting that “[u]nlike the ACCA and

INA, which require a categorical approach to stale predicate

convictions, 18 U.S.C. § 924(c) is a criminal offense that

requires an ultimate determination of guilt beyond a

reasonable doubt—by a jury in the same proceeding.”

Shuti, 828 F.3d at 449.

34

Because § 16(b) “offers no reliable way to choose between .

. . competing accounts of what” that “judge-imagined

abstraction” of the crime involves, Johnson, 135 S. Ct. at

2558, the ordinary case inquiry is as indeterminate in the §

16(b) context as it was in the residual clause context. See

Golicov, 2016 WL 4988012, at *6; Shuti, 828 F.3d at 447;

Vivas-Ceja, 808 F.3d at 722−23; Dimaya, 803 F.3d at

1115−16.

This conclusion holds true for the second feature of

each statute as well—the risk inquiry. Whereas the residual

clause asks how much risk it takes for a crime to present a

“serious potential risk” of physical injury, § 16(b) asks how

much risk it takes for a crime to present a “substantial risk”

of the intentional use of force. The phrases have two

linguistic differences: § 16(b) replaces the residual clause’s

“serious” with the word “substantial” and replaces the

residual clause’s “potential risk” with “risk.”

A “serious risk” is equally as vague as a “substantial

risk.” See Golicov, 2016 WL 4988012, at *6. To be sure, a

“potential risk” encompasses more conduct than a simple

“risk.” See James, 550 U.S. at 207−08 (“[T]he combination

of the two terms suggests that Congress intended to

encompass possibilities even more contingent or remote

than a simple ‘risk.’”). However, in our view, this minor

linguistic distinction is insufficient to bring § 16(b) outside

of the reasoning of Johnson. See Vivas-Ceja, 808 F.3d at

722; Dimaya, 803 F.3d at 1116 n.9. The critical feature of

the “serious potential risk” inquiry that rendered it

indeterminate in Johnson was not that the risk was

“potential,” but that the residual clause required the use of a

vague “serious risk” inquiry. The majority confirmed as

much when, in response to the dissent’s suggestion that the

35

majority opinion would cast constitutional doubt on statutes

using a “substantial risk” inquiry, it did not draw any

vagueness distinction between the phrases based on the

word “potential.” See Johnson, 135 S. Ct. at 2561.

The Attorney General directs our attention to an

additional linguistic distinction between the statutes that she

views as meaningful. She argues that the scope of crimes

that present a substantial risk of the use of force is narrower

than the scope of crimes that presents a serious potential

risk of physical injury. See Prickett, 2016 WL 5799691, at

*2; Gonzalez-Longoria, 831 F.3d at 676; Hill, 832 F.3d at

148. This is so because there is undoubtedly a class of

conduct that presents a risk that a victim will be injured

without presenting a risk that force will intentionally be

used against that victim. See Leocal, 543 U.S. at 10 n.7

(noting that § 16(b) “plainly does not encompass all

offenses which create a ‘substantial risk’ that injury will

result from a person’s conduct”). One example of such

conduct is arson with intent to destroy a building, which

runs the risk of a victim being injured without any risk of

the arsonist using intentional force against that victim. The

Attorney General argues that the § 16(b) inquiry therefore

“falls short of the wide-ranging thought experiment

previously required by the [residual clause].” Resp’t Br. 44

(internal quotation marks omitted) (quoting United States v.

Doe, 145 F. Supp. 3d 167, 182 (E.D.N.Y. 2015)).

While the Attorney General is correct that fewer

crimes fall within § 16(b) than within the residual clause,

we do not view the scope of crimes covered by each

provision as integral to the vagueness analysis. The

Attorney General cannot point us to any language in

Johnson that suggests otherwise because the Court’s

36

vagueness holding in Johnson was focused on the “serious

potential risk” inquiry required by the residual clause. See

Johnson, 135 S. Ct. at 2558 (“[T]he residual clause leaves

uncertainty about how much risk it takes for a crime to

qualify as a violent felony. It is one thing to apply an

imprecise ‘serious potential risk’ standard to real-world

facts; it is quite another to apply it to a judge-imagined

abstraction.” (emphasis added)); Welch v. United States,

136 S. Ct. 1257, 1262 (2016) (“The residual clause failed

not because it adopted a ‘serious potential risk’ standard but

because applying that standard under the categorical

approach required courts to assess the hypothetical risk

posed by an abstract generic version of the offense.”

(emphasis added)). As such, we focus here in our

vagueness analysis on the “substantial risk” inquiry required

by § 16(b).

In applying those indeterminate risk inquiries,

whether fewer or more cases fall within each respective

statutory provision because of the modifiers “physical

injury” and “use of force” does not affect the indeterminacy

of the “serious potential risk” or “substantial risk” inquiries

themselves. See Welch, 136 S. Ct. at 1272 (Thomas, J.,

dissenting) (observing that the residual clause was held to

be vague because it requires courts to “judge whether [the

ordinary case of a crime] presents a serious potential risk of

some result” (emphasis added) (internal quotation marks

omitted)). In short, the distinction the Attorney General

draws between the two statutes is a distinction without a

37

difference within the reasoning of Johnson.19 See Shuti, 828

F.3d at 448.

19

The Fifth Circuit in Gonzalez-Longoria identified

another linguistic distinction between the residual clause

and the language of § 16(b), which contributed to its

conclusion that § 16(b) is not unconstitutionally vague. It

pointed to the requirement in § 16(b) “that the risk of

physical force arise ‘in the course of committing’ the

offense” and observed that the § 16(b) inquiry is narrower

than the residual clause inquiry because it “does not allow

courts to consider conduct or events occurring after the

crime is complete.” Gonzalez-Longoria, 831 F.3d at 676

(emphasis added).

However, as we explained supra note 14, we have

not always interpreted § 16(b) in such a restrictive manner

as we have sometimes considered conduct occurring after

the offense has technically been completed in our

substantial risk inquiry. See, e.g., Henry, 493 F.3d at 310;

see also Taylor, 814 F.3d at 396 (White, J., concurring in

part and dissenting in part) (“[T]he cases demonstrate that

the phrase ‘in the course of committing the offense’ has not

consistently been interpreted to exclude consideration of the

risk of force after the offense has technically been

completed.”); Dimaya, 803 F.3d at 1118 (observing that the

Ninth Circuit has similarly not interpreted § 16(b) in such a

restrictive manner).

Moreover, the Supreme Court’s observation that

burglary is the “classic example,” of a crime of violence

within the meaning of § 16(b), Leocal, 543 U.S. at 10,

suggests that it similarly does not so restrictively interpret

38

The Attorney General next asserts that § 16(b) does

not fall within the reasoning in Johnson because, “unlike the

list of exemplar crimes preceding the residual clause, . . .

§ 16(b) . . . do[es] not rely [on] a unique list of enumerated

crimes to complicate the assessment of risk.”20 Resp’t Br.

46; 18 U.S.C. § 924(e)(2)(B)(ii) (defining “violent felony”

as a crime that is “burglary, arson, or extortion, involves

use of explosives, or otherwise involves conduct that

presents a serious potential risk of physical injury to

the “in the course of committing the offense” language in §

16(b). See Henry, 493 F.3d at 310. As the Court explained

in Johnson, “[t]he act of . . . breaking and 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.

20

Section 4B1.2 of the Sentencing Guidelines

previously contained a residual clause defining a “crime of

violence” that was both identically worded to the residual

clause in the ACCA and preceded by a list of exemplar

crimes. Accordingly, we recently held the residual clause

that was in § 4B1.2 to be void for vagueness after Johnson.

See Calabretta, 831 F.3d at 137. In invalidating that

residual clause, we noted that “we need not consider — and

so leave for another day — whether a similar residual clause

without an exemplary list of offenses would be subject to

the same degree of due process concern that the Supreme

Court identified in Johnson.” Id. at 137 n.9. Today is that

day. As we explain herein, we find § 16(b), which does not

contain an exemplary list of offenses, to be

unconstitutionally vague.

39

another” (emphasis added)); see Prickett, 2016 WL

5799691, at *2; Gonzalez-Longoria, 831 F.3d at 677; Hill,

832 F.3d at 146. It is true that the majority in Johnson

commented on the confusion engendered by the list of

exemplar crimes preceding the residual clause. See

Johnson, 135 S. Ct. at 2558, 2561. In responding to the

dissent’s argument that holding the residual clause

unconstitutional would place numerous provisions of

federal and state law that use terms like “substantial risk” in

constitutional doubt, the majority retorted:

Almost none of the cited laws links a phrase

such as “substantial risk” to a confusing list of

examples. “The phrase ‘shades of red,’

standing alone, does not generate confusion or

unpredictability; but the phrase ‘fire-engine red,

light pink, maroon, navy blue, or colors that

otherwise involve shades of red’ assuredly does

so.”

Id. at 2561 (quoting James, 550 U.S. at 230 n.7 (Scalia, J.,

dissenting)).

However, in the very next sentence of the opinion, in

response to the dissent’s same argument, the majority

stated:

More importantly, almost all of the cited laws

require gauging the riskiness of conduct in

which an individual defendant engages on a

particular occasion. As a general matter, we do

not doubt the constitutionality of laws that call

for the application of a qualitative standard such

as “substantial risk” to real-world conduct; “the

40

law is full of instances where a man’s fate

depends on his estimating rightly . . . some

matter of degree[.]” The residual clause,

however, requires application of the “serious

potential risk” standard to an idealized ordinary

case of the crime.

Id. (first alteration in original) (first emphasis added)

(internal citation omitted) (quoting Nash v. United States,

229 U.S. 373, 377 (1913)); see Welch, 136 S. Ct. at 1262.

We read Johnson to mean that the confusing list of

examples preceding the residual clause only added to the

residual clause’s already-existing vagueness. Indeed, the

language in Johnson by no means suggests that the list of

examples was an integral component of the Court’s finding

that the residual clause was unconstitutionally vague. See

Golicov, 2016 WL 4988012, at *7; Shuti, 828 F.3d at 448;

Dimaya, 803 F.3d at 1117−18. Rather, as the Supreme

Court made clear, the vagueness was the product of “[t]wo

features of the residual clause”—the ordinary case inquiry

and the risk inquiry—which, as we explained above, are

present in the § 16(b) analysis as well.21 Johnson, 135 S.

Ct. at 2557; see Vivas-Ceja, 808 F.3d at 722−23.

21

The Supreme Court’s discussion in Johnson about

its “repeated failures to craft a principled and objective

standard out of the residual clause” does not change our

analysis. Johnson, 135 S. Ct. at 2558. The Court’s

difficulty in interpreting the residual clause on multiple

occasions merely provided further “evidence of vagueness,”

Johnson, 135 S. Ct. at 2558, that the Court had already

found in the provision as a result of the “[t]wo features of

41

In fact, the lack of examples in § 16(b) introduces at

least as much vagueness into the provision as the presence

of confusing examples introduced into the residual clause.

See Dimaya, 803 F.3d at 1118 n.13. “The specific offenses

[preceding the residual clause] provide [a] baseline from

which to measure whether other similar conduct ‘otherwise

. . . presents a serious potential risk of physical injury.’”

James, 550 U.S. at 203 (third alteration in original). This

baseline “provide[s] at least some guidance as to the sort of

offenses Congress intended for the [residual clause] to

cover.” Dimaya, 803 F.3d at 1118 n.13. Such guidance is

absent from § 16(b), which contains no example offenses.

As a result, courts are left to undertake the § 16(b) analysis

guided by nothing more than other judicial decisions that

can lay no better claim to making sense of the

indeterminacy of the analysis in a principled way than we

have today. See supra section III.A.3.

the residual clause [that] conspire[d] to make it

unconstitutionally vague,” id. at 2557. Thus, that difficulty

only served to “confirm [the residual clause’s] hopeless

indeterminacy.” Id. at 2558 (emphasis added); see Welch,

136 S. Ct. at 1261−62 (distinguishing between the Court’s

difficulty in interpreting the residual clause and its

vagueness analysis); Shuti, 828 F.3d at 450; Vivas-Ceja,

808 F.3d at 723. Moreover, the fact that the Supreme Court

has only taken and decided one § 16(b) case, see Leocal,

543 U.S. at 1, and so has not experienced repeated failures

in interpreting the provision, is probative only of the Court’s

composition of its docket—not absence of vagueness in the

provision. See Shuti, 828 F.3d at 450; Dimaya, 803 F.3d at

1119.

42

* * *

Seemingly lost in these nuanced arguments about the

scope and import of Johnson is the fact that the Supreme

Court expressly anticipated the effect its holding would

have on statutes with the language contained in § 16(b). In

addressing the applicability of its holding to those statutes,

the Court stated: “As a general matter, we do not doubt the

constitutionality of laws that call for the application of a

qualitative standard such as ‘substantial risk’ to real-world

conduct.” Johnson, 135 S. Ct. at 2561 (emphasis added);

see Welch, 136 S. Ct. at 1262. Section 16(b) is not such a

law. Rather, § 16(b) calls for the exact analysis that the

Court implied was unconstitutionally vague—the

application of the “substantial risk” inquiry to the “idealized

ordinary case” of a crime. Johnson, 135 S. Ct. at 2561

(emphasis added).

Thus, because the two inquiries under the residual

clause that the Supreme Court found to be indeterminate—

the ordinary case inquiry and the serious potential risk

inquiry—are materially the same as the inquiries under

§ 16(b), § 16(b) is unconstitutionally vague. See Golicov,

2016 WL 4988012, at *6; Shuti, 828 F.3d at 441; Vivas-

Ceja, 808 F.3d at 722−23; Dimaya, 803 F.3d at 1120. “By

combining indeterminacy about how to measure the risk

posed by a crime with indeterminacy about how much risk

it takes for the crime to qualify as” a crime of violence,

§ 16(b) “produces more unpredictability and arbitrariness

than the Due Process Clause tolerates.” Johnson, 135 S. Ct.

at 2558.

Because § 16(b) is invalid, Baptiste’s 2009

Conviction was not for an aggravated felony pursuant to 8

43

U.S.C. § 1227(a)(2)(A)(iii). However, since Baptiste does

not contest that his 1978 Conviction was for a CIMT, he is

still removable if his 2009 Conviction was for a CIMT. We

now turn to that question.

C. Baptiste’s 2009 Conviction was for a CIMT

An alien who is convicted of “two or more crimes

involving moral turpitude, not arising out of a single scheme

of criminal misconduct” after his admission to the United

States is removable pursuant to 8 U.S.C. §

1227(a)(2)(A)(ii). Baptiste argues that the BIA erred in

concluding that his 2009 Conviction was for a CIMT. In

determining whether that conviction was for a CIMT, we

must again follow the categorical approach. Mehboob v.

Att’y Gen. of the U.S., 549 F.3d 272, 275 (3d Cir. 2008). As

with our crime of violence determination, the parties agree

that, in undertaking the categorical approach, we should

look to the recklessness crime in the statute of conviction.

Thus, the question we must answer is whether recklessly

causing serious bodily injury to another under

circumstances manifesting extreme indifference to the value

of human life is categorically a CIMT.

In the CIMT context, our cases make clear that “we

look to the elements of the statutory offense to ascertain the

least culpable conduct hypothetically necessary to sustain a

conviction under the statute.” Mahn, 767 F.3d at 174

(internal quotation marks omitted) (quoting Jean-Louis, 582

F.3d at 471). Thus, the “possibility of conviction for non-

turpitudinous conduct, however remote, is sufficient to

avoid removal.” Id. (internal quotation marks omitted)

(quoting Jean-Louis, 582 F.3d at 471). Under these

dictates, if there is any non-turpitudinous conduct that could

44

sustain a conviction for reckless second-degree aggravated

assault, then that crime is categorically not a CIMT.

We have in the past defined morally turpitudinous

conduct as “inherently base, vile, or depraved, contrary to

the accepted rules of morality and the duties owed other

persons.” Hernandez-Cruz v. Att’y Gen. of the U.S., 764

F.3d 281, 284 (3d Cir. 2014) (internal quotation marks

omitted) (quoting Knapik v. Ashcroft, 384 F.3d 84, 89 (3d

Cir. 2004)). Such conduct can “inhere in serious crimes

committed recklessly, i.e., with a conscious disregard of a

substantial and unjustifiable risk that serious injury or death

would follow.” Partyka v. Att’y Gen. of the U.S., 417 F.3d

408, 414 (3d Cir. 2005). Specifically, a recklessness crime

can constitute a CIMT “if certain statutory aggravating

factors are present.” Knapik, 384 F.3d at 90; see Idy v.

Holder, 674 F.3d 111, 118−19 (1st Cir. 2012) (recklessness

coupled with “serious bodily injury” aggravating factor).

In Knapik, the BIA concluded that first-degree

reckless endangerment under New York law was a CIMT.

384 F.3d at 93. New York law provided that a “person is

guilty of reckless endangerment in the first degree when,

under circumstances evincing a depraved indifference to

human life, he recklessly engages in conduct which creates

a grave risk of death to another person.” Id. at 89 (quoting

N.Y. Penal Law § 120.25 (McKinney 2009)). We

concluded that the BIA had acted reasonably in concluding

that the New York crime constituted a CIMT. Id. at 90.

In so concluding, we observed that the New York

statute at issue defined a recklessness crime that

“contain[ed] aggravating factors, requiring that a defendant

create a ‘grave risk of death to another person’ ‘under

45

circumstances evincing a depraved indifference to human

life.’” Id. We went on to observe that “the BIA could

reasonably conclude that the elements of depravity,

recklessness and grave risk of death, when considered

together, implicate accepted rules of morality and the duties

owed to society.” Id. Although the recklessness crime

defined in the statute of conviction in this case uses

nominally different wording, it is in all material respects the

same as the New York crime in Knapik that we found the

BIA reasonably classified as morally turpitudinous.

First, both crimes are recklessness crimes and the

mental state of recklessness is virtually identical under New

York and New Jersey law. In New York, “[a] person acts

recklessly . . . when he is aware of and consciously

disregards a substantial and unjustifiable risk” that is “of

such nature and degree that disregard thereof constitutes a

gross deviation from the standard of conduct that a

reasonable person would observe in the situation.” N.Y.

Penal Law § 15.05(3) (McKinney 2009). In New Jersey,

“[a] person acts recklessly . . . when he consciously

disregards a substantial and unjustifiable risk” that is “of

such a nature and degree that . . . its disregard involves a

gross deviation from the standard of conduct that a

reasonable person would observe in the actor’s situation.”

N.J. Stat. Ann. § 2C:2-2b(3) (West 2005).

Second, the aggravating factors in both crimes are

virtually identical. As to the first aggravating factor, the

New York crime required that the defendant act “under

circumstances evincing a depraved indifference to human

life,” N.Y. Penal Law § 120.25 (McKinney 2009), whereas

the New Jersey crime at issue here requires that the

defendant act “under circumstances manifesting extreme

46

indifference to the value of human life,” N.J. Stat. Ann. §

2C:12-1b(1) (West 2005). There is no meaningful

difference between those two phrases.

As to the second aggravating factor, the New York

crime required that the defendant engage in conduct that

“creates a grave risk of death to another person.” N.Y.

Penal Law § 120.25 (McKinney 2009). Similarly, the New

Jersey crime at issue here requires conduct that results in

“serious bodily injury.” N.J. Stat. Ann. § 2C:12-1b(1)

(West 2005). And the New Jersey courts have required that

the defendant be aware that “his conduct [bears] a

substantial risk that he will kill or seriously injure” others.

Colon, 689 A.2d at 1364 (alteration in original). This risk

must be so great that it constitutes a “probability as opposed

to the mere possibility of serious bodily injury.” State v.

Pigueiras, 781 A.2d 1086, 1096 (N.J. Super. Ct. App. Div.

2001); see Mahn, 767 F.3d at 175 (concluding

Pennsylvania’s reckless endangerment crime is not a CIMT

because it “only requires conduct that may put a person in

danger”). Again, the aggravating factor in each crime is

materially the same.

Thus, the New Jersey crime of reckless second-

degree aggravated assault, which requires recklessly causing

serious bodily injury to another under circumstances

manifesting extreme indifference to the value of human life,

falls squarely within our opinion in Knapik as a recklessness

crime with two aggravating factors. Reckless second-

degree aggravated assault is a CIMT.22

22

In arguing for a contrary result, Baptiste points us

to reported convictions for reckless second-degree

47

Because Baptiste’s 2009 Conviction was for a CIMT,23 the

BIA correctly determined that, together with his 1978

aggravated assault for drunk driving and cites our statement

in Knapik that “drunk driving . . . almost certainly does not

involve moral turpitude.” Knapik, 384 F.3d at 90.

However, we were careful in Knapik not to foreclose the

possibility that some egregious forms of drunk driving

could involve moral turpitude. We were merely referring in

that case to a “simple DUI offense,” id. (internal quotation

marks omitted) (quoting In re Lopez-Meza, 22 I. & N. Dec.

1188, 1194 (B.I.A. 1999)), and not drunk driving as

prosecuted under the statute at issue here, which results in

serious bodily injury to another person and evinces extreme

indifference to the value of human life. Such egregious

conduct is undoubtedly turpitudinous.

Baptiste also argues that our decision in Partyka

compels the conclusion that his 2009 Conviction was not

for a CIMT. However, in Partyka, we concluded that

negligently assaulting a law enforcement officer was not a

CIMT so the holding in that case is not applicable to the

more culpable recklessness crime at issue here. Partyka,

417 F.3d at 416. Moreover, we expressly stated in Partyka

that, if the petitioner was convicted of recklessly assaulting

a law enforcement officer, we would agree with the BIA’s

conclusion that the crime involved moral turpitude. Id.

23

Our holding today is limited to the New Jersey

crime of reckless second-degree aggravated assault, which

requires recklessly causing serious bodily injury to another

under circumstances manifesting extreme indifference to the

value of human life. We express no opinion on whether an

48

Conviction, Baptiste is removable as an alien convicted of

two or more CIMTs pursuant to 8 U.S.C. §

1227(a)(2)(A)(ii).

IV. CONCLUSION

For the foregoing reasons, we will grant the petition

in part as it relates to the BIA’s aggravated felony

determination, deny the petition in part as it relates to the

BIA’s CIMT determination, and remand the case to the BIA

for further proceedings.

assault crime involving “ordinary” recklessness would

constitute a CIMT.

49