United States v. Salas
889 F.3d 681
10th Cir.2018Background
- Clifford Salas used a Molotov cocktail to firebomb a tattoo parlor and was charged and convicted of multiple federal offenses: conspiracy to commit arson (§ 844(n)), aiding and abetting arson (§ 844(i) and § 2), being a felon in possession of an explosive (§ 842(i)), and using a destructive device in furtherance of a crime of violence (§ 924(c)(1)).
- The § 924(c) conviction (count 3) rested on the theory that arson under § 844(i) qualified as a “crime of violence” and the Molotov cocktail was a “destructive device,” producing a separate mandatory 30-year sentence under § 924(c)(1)(B)(ii).
- § 924(c)(3) defines “crime of violence” two ways: (A) an elements clause (requires use/threat of force as an element) and (B) a residual clause (an offense that by its nature involves a substantial risk that physical force may be used). The elements clause did not apply to § 844(i) because arson can include destruction of one’s own property.
- Salas did not contest at trial that arson satisfied § 924(c)(3)(B); he raised the vagueness challenge for the first time on appeal, so the court reviewed for plain error.
- The Tenth Circuit concluded § 924(c)(3)(B) is unconstitutionally vague for the same reasons the Supreme Court invalidated similarly worded residual clauses (Johnson and Sessions v. Dimaya) and that this error was plain; the court remanded for resentencing and instructed the district court to vacate the § 924(c)(1) conviction (count 3).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 924(c)(3)(B)’s residual clause is unconstitutionally vague | Salas: clause is identical in form to § 16(b) and the ACCA residual clause and thus is void for vagueness per Johnson and Dimaya | Government: § 924(c)(3)(B) differs (requires firearm nexus, focuses on force not injury, criminal-element/jury determination) so it is not vague | Court: § 924(c)(3)(B) is unconstitutionally vague; Dimaya controls and distinctions do not cure the clause’s ordinary‑case/ill‑defined‑risk defects |
| Whether the error is plain (Salas forfeited at trial) | Salas: even forfeited, the vagueness error is plain under plain‑error review given binding Supreme Court and Tenth Circuit precedent invalidating identical language | Government: circuit disagreement and pre‑Dimaya § 924(c) cases weigh against plain error | Court: error was plain; Dimaya and Tenth Circuit precedent make the error clear and relief is warranted; vacated § 924(c)(1) conviction and remanded for resentencing |
Key Cases Cited
- Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (invalidating § 16(b) residual clause as unconstitutionally vague and explaining the ordinary‑case/risk problem)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidating ACCA’s residual clause as void for vagueness)
- Serafin v. United States, 562 F.3d 1105 (10th Cir. 2009) (noting identical language of § 16(b) and § 924(c)(3)(B) and treating § 16(b] cases as informing § 924(c)(3)(B) analysis)
- United States v. Cardena, 842 F.3d 959 (7th Cir. 2016) (holding § 924(c)(3)(B) unconstitutionally vague following analysis of § 16(b))
- Papachristou v. City of Jacksonville, 405 U.S. 156 (1972) (example that criminal statutes can be unconstitutionally vague even though they require proof beyond a reasonable doubt)