United States v. Gregorio Gonzalez-Longoria, 2016 U.S. App. LEXIS 2325

Background

Defendant Gonzalez-Longoria pled guilty to illegal reentry (8 U.S.C. § 1326) and received a sentencing enhancement under USSG § 2L1.2(b)(1)(C) because the district court concluded a prior Texas conviction qualified as an “aggravated felony.”
The Guidelines define “aggravated felony” by reference to 8 U.S.C. § 1101(a)(43), which in turn treats a “crime of violence” as defined in 18 U.S.C. § 16; § 16(b) defines a crime of violence by reference to whether an offense “by its nature, involves a substantial risk that physical force ... may be used in the course of committing the offense.”
Gonzalez-Longoria challenged § 16 facially as unconstitutionally vague; the district court rejected that challenge and imposed a 27-month sentence.
On appeal the Fifth Circuit considered whether a defendant sentenced under a guideline that incorporates a statute by reference may challenge the incorporated statute’s constitutionality and concluded such a challenge is permissible.
Applying Johnson v. United States, the court analyzed whether § 16 requires the same categorical ("ordinary/archetypical case") analysis and whether § 16’s risk standard is impermissibly imprecise.
The majority held § 16 unconstitutional under Johnson and vacated the sentence, remanding for resentencing; Judge Higginson dissented, arguing § 16(b) is distinguishable and survives Johnson.

Issues

Issue	Gonzalez-Longoria's Argument	Government's Argument	Held
Whether a defendant sentenced under a guideline that incorporates a statute by reference may challenge that statute as unconstitutionally vague	He may; if the incorporated statute is void, the guideline cannot take effect	The court should avoid treating incorporation-by-reference differently from copied text; but conceded challenge is permissible here	When a guideline incorporates a statute by reference, a defendant may permissibly challenge the statute’s constitutionality
Whether § 16 requires an archetypical (categorical) analysis like ACCA’s residual clause	§ 16 does require imagining the ordinary case and ignoring the defendant’s specific conduct	§ 16 can be applied without the problematic categorical leap or is meaningfully narrower	§ 16 requires the archetypical-case (ordinary-case) analysis (first prong of Johnson satisfied)
Whether § 16’s risk standard is an imprecise standard that, combined with the categorical approach, renders it unconstitutionally vague	The phrase “substantial risk that physical force ... may be used” is imprecise and lacks clarifying examples, produces broad scope, and has produced judicial disagreement	§ 16 is materially clearer than ACCA’s residual clause (uses “substantial risk,” not “serious potential risk”) and Leocal supplies limiting guidance	§ 16’s standard is sufficiently imprecise that, combined with archetypical analysis, it is unconstitutionally vague under Johnson
Remedy for a sentencing enhancement that relied on § 16	Enhancement invalid because incorporated statute is a nullity	Enhancement should stand or issues of guideline vagueness deferred	Vacated the sentence and remanded for resentencing not inconsistent with opinion

Key Cases Cited

Johnson v. United States, 135 S. Ct. 2551 (U.S. 2015) (invalidating ACCA residual clause as unconstitutionally vague and explaining the two-part test)
Leocal v. Ashcroft, 543 U.S. 1 (U.S. 2004) (identifying burglary as the “classic example” of a § 16 crime of violence and explaining § 16’s focus)
Kolender v. Lawson, 461 U.S. 352 (U.S. 1983) (void-for-vagueness due process principles)
United States v. Batchelder, 442 U.S. 114 (U.S. 1979) (vagueness doctrine applies to statutes fixing sentences)
Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015) (holding § 16(b)-like language unconstitutionally vague)
United States v. Vivas-Ceja, 808 F.3d 719 (7th Cir. 2015) (holding § 16(b)-type language void for vagueness)
United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015) (discussing availability of vagueness challenges to Guidelines)