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UNITED STATES of America, Appellee v. Yonas ESHETU, also known as Yonas Sebsibe, Appellant

Court of Appeals of the District of Columbia2018-08-03No. No. 15-3020; C/w 15-3021; 15-3023
898 F.3d 36

Summary

Holding. The residual clause of 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague under Sessions v. Dimaya due to its textual identity with the statute the Supreme Court invalidated. The court vacated Lovo's and Sorto's section 924(c) convictions and remanded for further proceedings, while affirming the remainder of its earlier decision.

A jury convicted Pablo Lovo and Joel Sorto of violating the federal racketeering statute by conspiracy to interfere with interstate commerce through robbery, and of firearm possession during a crime of violence. The appellate court initially rejected their challenge to the constitutional validity of the residual clause in the crime-of-violence definition. After the Supreme Court decided Sessions v. Dimaya, which struck down an identical residual clause in a different statute as unconstitutionally vague, Lovo and Sorto sought rehearing. The appellate court granted rehearing and agreed that the same vagueness problem applies to their convictions under the firearm statute. The court rejected the government's proposed alternative interpretation because binding circuit precedent required a categorical rather than case-specific approach, and the court lacked authority to overrule that precedent despite Dimaya's intervening decision. The court vacated the firearm convictions while leaving the robbery conspiracy convictions undisturbed.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether the residual clause in the crime-of-violence definition is unconstitutionally vague
  • Application of Sessions v. Dimaya to similar statutory language in section 924(c)
  • Whether a panel can adopt a case-specific interpretation to avoid constitutional infirmity when circuit precedent requires a categorical approach

Procedural posture

Appellants Lovo and Sorto sought rehearing of their convictions after the Supreme Court's decision in Sessions v. Dimaya, which invalidated a materially identical statutory provision.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

Per Curiam

A jury convicted defendants Pablo Lovo and Joel Sorto of conspiring to interfere with interstate commerce by robbery, 18 U.S.C. § 1951, and using, carrying or possessing a firearm during a crime of violence, 18 U.S.C. § 924(c). Lovo and Sorto appealed their convictions. United States v. Eshetu , 863 F.3d 946 (D.C. Cir. 2017). In the main, we rejected their claims, id . at 951-58 & n.9, remanding only for further consideration of two ineffective-assistance challenges, id . at 957-58. As relevant here, we rejected their claim that the residual clause of the statutory crime-of-violence definition that affects them-set forth in 18 U.S.C. § 924(c)(3)(B) -is unconstitutionally vague. Id . at 952 ; see id . at 952-56.

After we issued our decision, the United States Supreme Court held that 18 U.S.C. § 16(b) -the residual clause of section 16s crime-of-violence definition-is unconstitutionally vague. Sessions v. Dimaya , --- U.S. ----, 138 S.Ct. 1204, 1210, 200 L.Ed.2d 549 (2018). With the support of the Federal Public Defender as amicus curiae, Lovo and Sorto now seek rehearing. They argue that Dimaya dictates vacatur of their section 924(c) convictions. We agree.

Under the residual clause that Dimaya struck down, [t]he term crime of violence means 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). Under the residual clause at issue here, the term crime of violence means 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. § 924(c)(3)(B). To borrow a phrase, the two statutes are materially identical. Govts Br. 12, Sessions v. Dimaya , S. Ct. No. 15-1498 (Nov. 14, 2016); see Dimaya , 138 S.Ct. at 1241 (Roberts, C.J., dissenting) ( § 16 is replicated in ... § 924(c)). We therefore discern no basis for a different result here from the one in Dimaya . Accord United States v. Salas , 889 F.3d 681, 684-86 (10th Cir. 2018) (invalidating section 924(c)(3)(B) and explaining why its textual similarity with section 16(b) is dispositive). In short, section 924(c)(3)(B) is void for vagueness. Dimaya requires us to abjure our earlier anlaysis to the contrary.

The government concedes that the panel should grant rehearing in order to address the impact of Dimaya . Appellees Suppl. Br. 3. But it urges us to construe § 924(c)(3)(B) to require a case-specific approach that considers appellants own conduct, rather than the ordinary case of the crime. Id . at 8. In the governments telling, this construction is a necessary means of avoiding the constitutional concerns that [a categorical] interpretation would create following Dimaya . Id . Whatever the clean-slate merits of the governments construction, we as a panel are not at liberty to adopt it: circuit precedent demands a categorical approach to section 924(c)(3)(B), see United States v. Kennedy , 133 F.3d 53, 56 (D.C. Cir. 1998), and one panel cannot overrule another, see LaShawn A. v. Barry , 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc) (That power may be exercised only by the full court, either through an in banc decision ... or pursuant to the more informal practice adopted in Irons v. Diamond , 670 F.2d 265, 268 n.11 (D.C. Cir. 1981).).

The government says this panel is not bound by Kennedy because Dimaya , an intervening Supreme Court decision, casts doubt on it. Appellees Suppl. Br. 24 (internal quotation omitted). We disagree. Dimaya nowise calls into question Kennedy s requirement of a categorical approach. To the contrary, a plurality of the High Court concluded that section 16(b) -which, again, is textually parallel with section 924(c)(3)(B) -is [b]est read to demand[ ] a categorical approach even if that approach [cannot] in the end satisfy constitutional standards. Dimaya , 138 S.Ct. at 1217 (plurality opinion) (emphasis added). If anything, that analysis reinforces Kennedy s precedential viability. Granted, Dimaya did not include any holding by a majority of the Court that § 16(b) requires a categorical approach, and it leaves open the same question for § 924(c)(3)(B). Appellees Suppl. Br. 8 (emphasis added). But the fact that Dimaya did not definitively resolve the matter only underscores our point: Dimaya cannot be read to mean that Kennedy is clearly an incorrect statement of current law. United States v. Dorcely , 454 F.3d 366, 373 n.4 (D.C. Cir. 2006) (noting this criterion for overruling circuit precedent, with full courts endorsement, via panel decision) (internal quotation omitted); see Policy Statement on En Banc Endorsement of Panel Decisions 1 (Jan. 17, 1996), perma.cc/9FGD-C265.

Accordingly, we grant rehearing for the limited purpose of vacating Lovos and Sortos section 924(c) convictions in light of Dimaya . We do not otherwise reconsider or disturb our decision in Eshetu . We remand to the district court for further proceedings consistent with this opinion and the unaffected portions of Eshetu .

More precisely, Lovo petitions for rehearing and Sorto moves to adopt his and amicuss arguments. See Fed. R. App. P. 28(i). We grant Sortos motions, which the government does not oppose.

In vacating the section 924(c) convictions, we express no view-because the government advances no argument-about whether conspiracy in violation of 18 U.S.C. § 1951 is a crime of violence under the elements clause in section 924(c)(3)(A). Appellees Suppl. Br. 2 n.2 (conceding that [o]nly the [residual] clause is at issue here).