# Amicus Curiae Brief — Sessions v. Dimaya (No. 15-1498)

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0671%3A10

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2016

## Text

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No. 15-1498

In the Supreme Court of the United States

LORETTA E. LYNCH, ATTORNEY GENERAL,
PETITIONER,
Vv.

JAMES GARCIA DIMAYA

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF OF RETIRED ARTICLE III JUDGES
AS AMICI CURIAE IN SUPPORT OF RESPONDENT

JUSVIN FLORENCE

Counsel of Record
JONATHAN FERENCE-BURKE AARON KATZ
ROPES & GRAY LLP PATRICK ROATH

2099 Pennsylvania Avenue, NW ROPES & GRAY LLP

a - + ——— .

Washington, DC 20006 Prudential Tower
800 Boylston Street

ELIZABETH BIERUT Boston, MA 02199

ROPES & GRAY LLP (617) 951-7000

1211 Avenue of the Americas Justin. Florence

New York, NY 10036 @ropesgray.com

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TABLE OF CONTENTS

CC EE
ROREIOUNOT GARE DUTTA 220000000... - 02.00.20 00ccscenceses sessee sees 3
Argument:

lL. The text of Section 16(b) requires judges to
make abstract inquiries into enigmatic features
of state criminal offenses....................c00.cc-:cceeceessseees 5

11. The indeterminacy of the analysis called for by
Section 16’s residual clause prevents the
consistent and predictable application of the
statute that the rule of law requires....................... 8

a espmeumuaravensecre iit

(1)

[I

TABLE OF AUTHORITIES
Page(s)

Cases:

Baptiste v. Attorney General, 841 F.3d 601 (3d

i I _._. . ..csnseenssticennsiecninmnianipabanstnatsietinsiiamndaesses ll
Chery v. Ashcroft, 347 F.3d 404 (2d Cir. 2003)....... 10
Golicov v. Lynch, 837 F.3d 1065 (10th Cir. 2016).....9

James v. United States, 550 U.S. 192 (2007),
overruled on other grounds by Johnson v.

United States, 135 S. Ct. 2551 (2015) ................... 6
Johnson v. United States, 135 S. Ct. 2551

+ | } |) nnn ner passim
Skilling v. United States, 561 U.S. 358 (2010)........ 12
United States v. Alas-Castro, 184 F.3d 812 (8th

ET a cccnenininssocenssenssosrssuvetanteubsutbenenainnssisceresasii 10
United States v. Armendariz-Moreno, 571 F.3d

490 (Sth Cir. 2009)..............ccceccseesereererenssssssnnenerees 10

United States v. Cortez-Ruiz, No. 15-CR-00114-
LHK, 2016 WL 7034057 (N.D. Cal. Dee. 2,

United States v. Galvan-Rodriguez, 169 F.3d
217 (5th Cir.), cert. denied, 528 U.S. 837

II aces uen ecvconse sernvarserenncqrnonsnesonsensonssicesseteonsanetucwant )
United States v. Lanier, 520 U.S. 259 (1997)............ 6
United States v. Mayer, 560 F.3d 948 (9th Cir.),

cert. denied, 558 U.S. 860 (2009)...............e2 8

United States v. Sanchez-Garcia, 501 F.3d 1208
(10th Clr. BO0T)...........000....c0-everesseseees ee )

Ill

Cases—Continued: Page(s)

United States v. Tavares, --- F.3d -—, No. 14-
2319, 2016 WL 7011523 (1st Cir. Dec. 1,
2016).... sisi ~

United States v v. ilies pony 100 F.3d 418
(5th Cir. 1996), cert. denied, 520 U.S. 1133

SI iseveiecenienserdusenantsnrinasivetetinetiniinniicinenassiiiasesn=nst 10
Valencia v. ihn 439 F.3d 1046 (9th Cir.

— 10
Xiong v. INS, 173 F.3d 601 (7th Cir. 1999)..........-.. 10

Constitution and Statutes:

U.S. Const. amend. V ...........-sccesesseeeeessnnsnenneens passim
California Penal Code Section 459 ............:csseeeeees 7
Immigration and Nationality Act, 8 U.S.C.
1101(aM(43)(F) ....0..-------ceceeeeees SE 3
ji! k= es Oe aed 11
1) 7,12
0) passim
18 U.S.C. 924(e2)(B) Gi)... ...-.------ecceeceeecees at

U.S.S.G. § 4B1.2(a)(2)......-.cccccceeressenneesensnnsnnnenannsnnnnes 12

In the Supreme Court of the United States

No. 15-1498

LORETTA E. LYNCH, ATTORNEY GENERAL,
PETITIONER,

v.
JAMES GARCIA DIMAYA

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF OF RETIRED ARTICLE III JUDGES
AS AMICI CURIAE IN SUPPORT OF
RESPONDENT

Amici respectfully submit this brief to the Court in
support of the respondent, Mr. James Garcia Dimaya.’

INTEREST OF AMICI CURIAE
Amici are retired Article III judges:

* The Honorable Rosemary Barkett, United
States Circuit Judge for the Eleventh Circuit
Court of Appeals from 1994 to 2013

' All parties have consented to the filing of this amicus curiae brief.
No counsel for any party authored this brief in whole or in part,
and no person or entity, other than amici curiae or their counsel,
made a monetary contribution intended to fund the preparation or
submission of this brief.

(1)

2

e The Honorable David Coar, United States Dis-
trict Judge for the Northern District of Illinois
from 1994 to 2010

e The Honorable William Royal Furgeson Jr.,
United States District Judge for the Western
District of Texas from 1994 to 2008, and United
States District Judge for the Northern District
of Texas from 2008 to 2013

e The Honorable Nancy Gertner, United States
District Judge for the District of Massachusetts
from 1994 to 2011

e ‘The Honorable David Hagen, United States Dis-
trict Judge for the District of Nevada from 1993
to 2005

e The Honorable John Martin, United States Dis-
trict Judge for the Southern District of New
York from 1990 to 2003

e« The Honorable Shira A. Scheindlin, United
States District Judge for the Southern District
of New York from 1994 to 2016

Though amici are of different backgrounds and ju-
dicial philosophies, they are of one mind that a corner-
stone of the federal judicial system is the principle that
federal criminal statutes should be applied predictably
and consistently across factually similar cases and to
similarly situated defendants.

Amici’s interest in this case arises from their con-
cern that 18 U.S.C. 16(b), like the statutory provision
that this Court struck down in Johnson v. United
States, 1385 S. Ct. 2551 (2015), creates an intolerably
high risk of unpredictable and inconsistent results, both
in sentencing and, as here, removal determinations.

3

This infirmity is inherent in the language of 18 U.S.C.
16(b) (Section 16’s residual clause), and familiar princi-
ples of statutory construction cannot ameliorate it.

Amici respectfully submit that, as former and re-
tired Article III judges, they can lend this Court a
unique perspective on the question of whether Section
16’s residual clause, including as incorporated into the
Immigration and Nationality Act, 8 U.S.C.
1101(a)(43)(F), complies with the requirements of the
Due Process Clause of the Constitution of the United
States.

INTRODUCTION AND SUMMARY

This case presents the question whether 18 U.S.C.
16(b), as incorporated into the Immigration and Na-
tionality Act’s (INA) provisions governing an alien’s
removal from the United States, is unconstitutionally
vague. Section 16 of Title 18 provides the generic defi-
nition of a “crime of violence” for the federal criminal
code. Subsection (b), the statute’s “residual clause,”
defines a “crime of violence” to include “any * * * of-
fense that is a felony and that, by its nature, involves a
substantial risk that physical force against the person
or property of another may be used in the course of
committing the offense.”

The language of Section 16(b) directs federa! judg-
es to analyze whether a state criminal offense “by its
nature” meets this definition. This Court has held that
the statutory text calls for the court to hypothesize the
risk that physical force will be used in the “ordinary
case” of the offense, rather than to assess the risk pre-
sented by the actual offense conduct of the defendant.
The statutory text provides judges with no more guid-
ance than that.

4

In Johnson v. United States, 135 S. Ct. 2551 (2015),
this Court considered an analogous challenge to a sub-
stantially similar provision in the federal criminal code,
the residual clause of the Armed Career Criminal Act
(ACCA). The ACCA residual clause at issue in John-
son defined a “violent felony” as “any crime punishable
by imprisonment for a term exceeding one year [7.¢., a
felony] * * * that * * * involves conduct that presents a
serious potential risk of physical injury to another.” 18
U.S.C. 924(e)(2)(B)Gi). This Court concluded that the
provision violated the Due Process Clause’s “prohibi-
tion of vagueness in criminal statutes” because “the in-
determinacy of the wide-ranging inquiry required by
the residual clause both denies fair notice to defendants
and invites arbitrary enforcement by judges.” John-
son, 135 S. Ct. at 2557.

In the opinion below in this case, the Ninth Circuit
extended Johnson’s holding to the similar language
found in the definition of a “crime of violence” in Sec-
tion 16’s residual clause. Pet. App. 8a-9a. The panel
majority reasoned that the two features of the ACCA
residual clause that this Court held “conspired to make
it unconstitutionally vague” applied with equal force to
Section 16(b). Pet. App. 9a (quoting Johnson, 135 S. Ct.
at 2557). The court concluded that, like the ACCA’s
residual clause, Section 16’s residual clause contains no
method for determining what the “ordinary case” looks
like, or whether the “ordinary case” crosses the thresh-
old of “substantial risk” of physical force. Jd. at 9a-12a.

Amici share the concern of the court below that
Section 16(b) forces federal judges to guess at how any
particular state criminal offense is committed in the
“ordinary case” and whether that “ordinary case” pre-
sents a “substantial risk” that physical force may be

5

used. Judges must resort to hypothetical abstractions,
without either concrete legal elements or specific factu-
al findings to guide them. This inherently indetermi-
nate form of analysis—which more closely resembles
the issuance of an advisory opinion than resolution of an
actual case or controversy—defies the consistency and
predictability that the Due Process Clause requires.

ARGUMENT

I. The Text Of Section 16(b) Requires Judges To
Make Abstract Inquiries Into Enigmatic Fea-
tures Of State Criminal Offenses

Section 16’s residual clause defines a “crime of vio-
lence” to include any felony offense “that, by its nature,
involves a substantial risk that physical force against
the person or property of another may be used in the
course of committing the offense.” This Court has held
that the statute’s plain language dictates that, in de-
termining whether the defendant’s offense of conviction
satisfies this definition, courts must apply a so-called
“ordinary case” approach.

Under the “ordinary case” approach, the question a
court ultimately must answer is not whether the de-
fendant’s actual offense conduct carried a substantia!
risk of physical force, but whether the prototypical ver-
sion of the offense of conviction presents such a risk.
See Johnson v. United States, 135 S. Ct. 2551, 2557

6

(2015).* Evaluating the degree of risk of physical force

that the “ordinary case” of a particular offense presents
is the ultimate question that Section 16’s residual

clause always will present the judge. The ambiguity
and uncertainty inherent in that evaluation is irreduci-
ble, regardless of how much additional guidance this
Court offers with respect to the meaning of the stat-
ute’s discrete terms. See James v. United States, 550
U.S. 192, 208-209 (2007) (indicating the equivalence of
the “by its nature” language and the “ordinary case”
approach), overruled on other grounds by Johnson, 135
S. Ct. 2551.

Echoing Justice Holmes’s time-tested wisdom, this
Court in Johnson remarked that “the life of the law is
experience.” 135 S. Ct. at 2560. Section 16’s residual
clause, however, forces federal judges to make enor-
mously consequential statutory determinations that are
neither based on actual, concrete facts presented by the
case at hand nor within the judge’s own direct personal
experience. Many statutes require a court to make dif-
ficult judgment calls, and it is well-established that
“clarity at the requisite level may be supplied by judi-
cial gloss on an otherwise uncertain statute.” United
States v. Lanier, 520 U.S. 259, 266 (1997). But Section
16’s residual clause does much more than that. It calls

* This Court first described the “ordinary case” approach in James
v. United States, 550 U.S. 192, 208 (2007), overruled on other
grounds by Johnson, 135 S. Ct. 2551. In James, the Court held
that the ACCA’s residual clause requires a court to determine
“whether the conduct encompassed by the elements of the offense,
in the ordinary case, presents a serious potential risk of injury to
another.” 550 U.S. at 208 (emphasis added). The United States’
brief (at 20) acknowledges that Section 16(b) likewise “requires a
court to assess the risk posed by the ordinary case of a particular
offense.”

7

on federal judges to issue something akin to an adviso-
ry opinion about a peculiar aspect of a particular state’s
criminal law without the benefit of a deep—or even a
shallow—well of relevant expertise upon which to
draw.

Take James Dimaya’s case, for example. Had Di-
maya committed an offense that has as an essential el-
ement the use or threatened use of force, the question
of whether Dimaya committed a “crime of violence”
would not have been hypothetical, and it would have
been easily resolved against Dimaya under Section
16(a). See 18 U.S.C. 16(a) (including as a “crime of vio-
lence” “an offense that has as an element the use, at-
tempted use, or threatened use of physical force against
the person or property of another”). Because Dimaya’s
offense of conviction did not include such an element,
however, a board of federal administrative judges and,
subsequently, a panel of Ninth Circuit judges were
forced to answer the hypothetical question of whether
violations of California Penal Code Section 459 “ordi-
narily” are committed in a manner that poses a “sub-
stantial risk” of physical force.

It is exceedingly unlikely that any of the adminis-
trative or Ninth Circuit judges hearing Dimaya’s case
had any significant experience—either judicial or oth-
erwise—with violations of California Penal Code Sec-
tion 459 that could serve as their guide in answering
this question. To paraphrase Judge Kozinski’s frustra-
tions with Section 16’s residual clause, how were the
judges in Dimaya’s case “supposed to figure out”
whether violations of California Penal Code Section 459
ordinarily involve the substantial risk of the use of
force: “A statistical analysis of the state reporter? A
survey? Expert evidence? Google? Gut instinct?”

8

United States v. Mayer, 560 F.3d 948, 952 (9th Cir.)
(Kozinski, C.J., dissenting from denial of rehearing en
banc), cert. denied, 558 U.S. 860 (2009).

The common denominator of each of the modes of
analysis described above is that they call on the judge
not to assess a definite set of facts actually before the
court, but rather to hypothesize what the average or
prototypical version of the defendant’s offense of con-
viction looks like. This is dramatically different from
what Article III judges typically are expected to do and
are good at, which is to apply federal statutes to con-
crete facts that are actually before the court. Indeed,
as the First Circuit has put it, the inquiry required in
applying Section 16’s residual clause “seems a better fit
for Congress or an administrative agency.” United
States v. Fish, 758 F.3d 1, 18 (2014).

Il. The Indeterminacy Of The Analysis Called For
By Section 16’s Residual Clause Prevents The
Consistent And Predictable Application Of The
Statute That The Rule Of Law Requires

Implicit in Judge Kozinski’s frustration with the
indeterminacy of Section 16’s residual clause is the con-
cern of inconsistent application of the statute. Under
the “ordinary case” approach, two federal judges sit-
ting in different circuits might reach diametrically op-
posed, yet equally defensible, conclusions under Section
16(b) with respect to identical real offense conduct.
And this could occur not because the judges disagree on
the meaning of the provision’s discrete terms or the
basic analytical approach that the provision requires,
but rather because the judges, relying on little more
than imagination, simply have different conceptions of

9

what constitutes the “ordinary” version of the state law
statutory offense of which the defendant was convicted.

The intractable constitutional problem with Section
16’s residual clause, then, is not that a federal judge is
incapable of reaching a logically defensible determina-
tion of whether a given offense “ordinarily” presents a
substantial risk of the use of physical force. Rather, the
problem is that Section 16(b), like the provision this
Court struck down in Johnson v. United States, “offers
no reliable way |for a judge] to choose between” com-
peting conclusions. 135 S. Ct. 2551, 2558 (2015). As this

Jourt recognized in Johnson, a statute that forces a
judge to resort to “guesswork and intuition” offends
due process where the consequences of the judge’s de-
cision are so severe, id. at 2559, including substantially
enhanced mandatory minima and prison sentences in
criminal cases and potential deportation in immigration
cases. As the Tenth Circuit has stated, “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.” Golicov v. Lynch, 837
F.3d 1065, 1070 (2016) (quoting Johnson, 135 S. Ct. at
2558, and holding 18 U.S.C. 16(b) void for vagueness).

Unsurprisingly, application of Section 16’s residual
clause has not resulted in the level of predictability,
consistency, and uniformity that is so imperative to the
rule of law. Take, for example, treatment of state laws
criminalizing the unauthorized use of a motor vehicle.
The Fifth and Tenth Circuits, hypothesizing about
whether the unauthorized use of a vehicle involves a
substantial risk of physical harm in the ordinary case,
reached opposite conclusions. Compare United States
v. Sanchez-Garcia, 501 F.3d 1208, 1213 (10th Cir. 2007),
with United States v. Galvan-Rodriguez, 169 F.3d 217,

10

219-220 (5th Cir.) (per curiam), cert. denied, 528 U.S.
837 (1999). These courts differed not because one panel
was wrong and the other was right. That the Fifth Cir-
cuit ten years later reversed course on the motor vehi-
cle offense, see United States v. Armendariz-Moreno,
571 F.3d 490 (2009) (per curiam), is not proof of Section
16(b)’s constitutionality, but rather reinforces that its
“shapeless” text virtually guarantees an irreducible
level of “unpredictability and arbitrariness” that the
Due Process Clause forbids, Johnson, 135 S. Ct. at
2558, 2560.

Similar confusion attends the treatment of laws
criminalizing statutory rape. Some courts have deemed
statutory rape convictions categorical crimes of vio-
lence. In the Second Circuit, for example, the offense is
categorically a crime of violence under Section 16(b).
See Chery v. Ashcroft, 347 F.3d 404, 408-409 (2003). So
too in the Eighth Circuit and Fifth Circuit. See United
States v. Alas-Castro, 184 F.3d 812, 813 (8th Cir. 1999)
(per curiam); United States v. Velazquez-Overa, 100
F.3d 418, 422-423 (5th Cir. 1996), cert. denied, 520 U.S.
1133 (1997). The Ninth Circuit and Seventh Circuit,
however, have reached the opposite conclusion. See
Valencia v. Gonzales, 439 F.3d 1046, 1049, 1053 (9th
Cir. 2006); Xiong v. INS, 173 F.3d 601, 605-607 (7th Cir.
1999). Once again, the critical point is not that one con-
clusion is right and the other is wrong. Rather, the
critical point is that a criminal statute that carries such
profound consequences should not place a federal judge
in the position of having to hypothesize whether the
“ordinary” version of a state law crime presents the
requisite risk of physical force, when the judge’s only
guideposts to answering the question are “other judi-
cial decisions that can lay no better claim to making

11

sense of the indeterminacy of the analysis in a princi-
pled way.” Baptiste v. Attorney General, 841 F.3d 601,
620 (3d Cir. 2016) (holding 18 U.S.C. 16(b) void for
vagueness).

The Solicitor General may be correct in asserting
that Section 16(b), as applied to particular types of of-
fenses, has engendered fewer circuit splits than the
ACCA’s residual clause did in the years before John-
son. See U.S. Br. 46 (arguing that Section 16(b) has
“not produced pervasive conflicts” in the lower courts).
But a statute’s constitutionality does not turn upon
whether each subsequent court to address a particular
question follows the answer supplied by the first court
to address it. Instead, the question is whether the
statute’s language supplies the necessary guidance to
the court that is forced to resolve the question res nova.
Section 16(b) irreparably fails in this regard. As one
district judge recently commented in attempting to as-
certain whether burglary under Nevada state law was
a crime of violence under Section 16(b), “the analysis
that the Government asks the Court to perform in the
instant case is impossible to do in a way that comports
with due process. * * * [T]o make that decision as a
matter of first impression, the Court would have to use
an unconstitutionally vague standard.” United States
v. Cortez-Ruiz, No. 15-CR-00114-LHK, 2016 WL
7034057, at *10 (N.D. Cal. Dec. 2, 2016) (Koh, J.) (dis-
missing indictment charging illegal reentry under 8
U.S.C. 1326).

As another court has noted in an analogous context,
“liln a sensible world, Congress and/or the Sentencing
Commission would have made a list of state and federal
laws deemed to be crimes of violence that warranted
the desired penalties and sentencing enhancements.”

12

United States v. Tavares, --- F.3d ---, No. 14-2319, 2016
WL 7011523, at *15 (Ist Cir. Dec. 1, 2016) (applying
similar residual clause of U.S.S.G. § 4B1.2(a)(2)). Be-
cause they have not, “(t]he result is a Rube Goldberg
jurisprudence of abstractions piled on top of one anoth-
er in a manner that renders doubtful anyone’s confi-
dence in predicting what will pop out at the end.” /bid.

This Court cannot cure the infirmities of Section
16’s residual clause by resolving whatever circuit splits
presently exist or may arise with respect to particular
offenses. Nor can this Court provide a cure by promul-
gating its own definitive list of state offenses that quali-
fy as crimes of violence under Section 16(b). This
Court’s approach to the honest services fraud statute in
Skilling v. United States, 561 U.S. 358 (2010), is in-
structive. In Skilling, this Court recognized that the
plain language of the honest services statute lacked the
precision necessary to punish, consistent with the Due
Process Clause, a fiduciary’s undisclosed self-dealing.
Id, at 411 n.44. The Court was able to save the honest
services statute from invalidation only because, using
accepted tools of statutory construction, the Court was
able to conclude that “there is no doubt that Congress
intended [the statute] to reach at least bribes and kick-
backs.” Jd. at 408-409. With respec! to Section 16’s re-
sidual clause, by contrast, neither the s-atute’s text nor
its enactment history clearly indicates which criminal
offenses Congress had in mind when it drafted the pro-
vision. Thus, even assuming that there may be some
state law offenses that (though not satisfying Section
16(a)’s definition of “crime of violence”) virtually every
federal judge would conclude fit within Section 16(b),
this does not point the way to a limiting construction
that could salvage the provision. Instead, the provision

13

suffers from a more fundamental problem: the applica-
tion of a federal criminal statute should not depend up-
on the outcome of a judge’s abstract hypothesis of what
the prototypical version of the defendant’s offense of
conviction looks like.

CONCLUSION

For the foregoing reasons, the judgment of the
court of appeals should be affirmed.

Respectfully submitted,

JUSTIN FLORENCE

AARON KATZ

JONATHAN FERENCE-BURKE

PATRICK ROATH

ELIZABETH BIERUT

ROPES & GRAY LLP
December 2016

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0671%3A10. Public record. Not legal advice.