LAW.coLAW.co

UNITED STATES of America, Plaintiff-Appellant, v. Marco HERNANDEZ-LARA, Defendant-Appellee

United States Court of Appeals for the Ninth Circuit2016-03-29No. No. 13-10637
817 F.3d 651

Summary

Holding. The court held that 18 U.S.C. § 16(b), as incorporated into the sentencing guidelines, is unconstitutionally vague for vagueness and affirmed the district court's sentence.

Marco Hernandez-Lara was convicted of illegal reentry and sentenced based on a prior burglary conviction. The government appealed, arguing that the burglary should count as a "crime of violence" under federal law, which would have increased his sentence. The district court had rejected this argument, finding that California burglary did not meet the definition of a crime of violence in 18 U.S.C. § 16(b).

After the government's appeal was filed, the court decided another case—Dimaya v. Lynch—which found that § 16(b)'s definition of "crime of violence" is unconstitutionally vague. The government attempted to distinguish its arguments in Hernandez's case from those rejected in Dimaya, but the court found no meaningful difference between the two situations. Bound by its earlier Dimaya decision, the court concluded that § 16(b) cannot be used in sentencing calculations.

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

Key issues

  • Constitutional vagueness of the "crime of violence" definition in 18 U.S.C. § 16(b)
  • Whether a California burglary conviction qualifies as an aggravated felony for illegal reentry sentencing
  • Application of Johnson v. United States vagueness doctrine to § 16(b)

Procedural posture

The government appealed the district court's sentencing decision, which declined to enhance the defendant's sentence based on a prior burglary conviction.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

OPINION

PER CURIAM:

Appellant United States of America appeals the sentence imposed on appellee Marco Hernandez-Lara following his conviction for illegal reentry under 8 U.S.C. § 1326. Specifically, the government contends that the district court miscalculated the United States Sentencing Guidelines range applicable to Hernandez because the district court concluded that Hernandez’s 2009 burglary conviction under California Penal Code § 459 did not qualify as a “crime of violence” as defined in 18 U.S.C. § 16(b). After the government filed its appeal, however, we held in a different context that the definition of a crime of violence that appears in § 16(b) is unconstitutionally vague. See Dimaya v. Lynch, 803 F.3d 1110 (9th Cir.2015). Because we are bound by Dimaya’s holding, and because the government offers the same arguments in favor of § 16(b)’s constitutionality that we rejected in that decision, we hold that § 16(b), as incorporated in U.S.S.G. § 2L1.2(b)(l)(C), is void for vagueness.

1. U.S.S.G. § 2L1.2(b)(l)(C) imposes an 8-level enhancement on a defendant convicted of illegal reentry if “the defendant previously was deported, or unlawfully remained in the United States, after ... a conviction for an aggravated felony.” Section 2L1.2 defines “aggravated felony” by reference to 8 U.S.C. § 1101(a)(43), which includes numerous offenses. U.S.S.G. § 2L1.2, cmt. 3(A). One of these offenses is a “crime of violence (as defined in section 16 of Title 18 ...).” 8 U.S.C.- § 1101(a)(43)(F). Here, the government argued to the district court that Hernandez’s burglary conviction qualified as a “crime of violence” under § 16(b), which the statute defines 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). The district court disagreed, concluding that burglary under California Penal Code § 459 “is not a crime of violence under section 16(b).” It then sentenced the defendant to 24 months of incarceration, and the government appealed.

After the government appealed this decision, the United States Supreme Court decided Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Johnson held that language similar to § 16(b), the Armed Career Criminal Act’s so-called “residual clause” definition of a “violent felony,” is unconstitutionally vague. 135 S.Ct. at 2557; see also Dimaya, 803 F.3d at 1115. We deferred submission pending this court’s decision in Dimaya (which addressed Johnson’s impact on § 16(b)), and ordered supplemental briefing once Dimaya became final.

2. In Dimaya, we relied on Johnson to hold that § 16(b) — the exact same definition of a “crime of violence” at issue in this case — was void for vagueness. Dimaya, 803 F.3d at 1115. We stated that the “residual clause” declared unconstitutional in Johnson and § 16(b), although not identical, are both “subject to the same constitutional defects.” Id. Here, the government seeks to distinguish Johnson based on the insignificant differences between the “residual clause” and § 16(b) — arguments that we explicitly rejected in Dima-ya, id. at 1117-19. Indeed the government admits as much, and offers no basis upon which to distinguish the application of § 16(b) in Dimaya and its application here. We, too, see no reason why Dimaya does not control this case. We therefore hold that § 16(b), as incorporated in U.S.S.G. § 2L1.2(b)(l)(C), is unconstitutionally vague, and affirm the sentence.

AFFIRMED.

. The residual clause” defines a violent felony” as “any crime punishable by imprisonment for a term exceeding one year ... 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).