Lead Opinion
Opinion by Judge REINHARDT; Dissent by Judge CALLAHAN.
OPINION
Petitioner James Garcia Dimaya seeks review of the Board of Immigration Appeals’ (BIA) determination that a conviction for burglary under California Penal Code Section 459 is categorically a “crime of violence” as defined by 8 U.S.C. § 1101(a)(43)(F), a determination which rendered petitioner removable for having been convicted of an aggravated felony. During the pendency of petitioner’s appeal, the United States Supreme Court decided Johnson v. United States, — U.S. -,
I
Petitioner, a native and citizen of the Philippines, was admitted to the United States in 1992 as a lawful permanent resident. In both 2007 and 2009, petitioner was convicted of first-degree residential burglary under California Penal Code section 459 and sentenced each time to two years in prison. If a non-citizen is convicted of an aggravated felony, he is subject to removal. 8 U.S.C. § 1227(a)(2)(A)(iii). Citing petitioner’s two first-degree burglary convictions, the Department of Homeland Security (“DHS”) charged that petitioner was removable because he had been convicted of a “crime of violence ... for which the term of imprisonment [was] at least one year”- — an aggravated felony under 8 U.S.C. § 1101(a)(43)(F).
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other 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.
The Immigration Judge (IJ) agreed with DHS that first-degree burglary in California is a crime of violence. Citing § 16(b) and United States v. Becker,
Petitioner filed a timely petition with this Court for review of the BIA’s decision. After the parties argued this case, the United States Supreme Court decided Johnson and, because the definition of a crime of violence that the BIA relied on in this case is similar to the unconstitutional language in ACCA’s residual clause,
1
II
The Fifth Amendment’s Due Process Clause “requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Alphonsus,
Previously, we have recognized the vagueness doctrine’s- applicability in the context of withholding of removal “because of the harsh consequences attached to ... denial of -withholding of removal.” Alphonsus,
For due process purposes, this context is highly analogous to denial of withholding of removal because both pose the harsh consequence of almost certain deportation. Under withholding of removal, a non-citizen who is otherwise removable cannot be deported to his home country if he establishes that his “life or freedom would be threatened in that country because of [his] race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). Under cancellation of removal, immigration authorities may cancel the removal of a lawful permanent resident who satisfies certain criteria based on length of residency, good behavior, and exceptional hardship. Id. § 1229b(b)(l). Non-citizens who commit certain criminal offenses are ineligible for these forms of relief. See id. §§ 1231(b)(3)(B)(ii), 1229b(b)(l)(C). As with denial of withholding of removal, then, denial of cancellation of removal renders an alien ineligible for relief, making deportation “a virtual certainty.” United States v. Bonilla,
The government argues that our circuit’s reliance on Jordan “is misguided as Jordan did not authorize vagueness challenges to deportation statutes.” We find this suggestion baffling. Jordan considered whether the term “crime involving moral turpitude” in section 19(a) of the Immigration Act of 1917, a type of offense that allowed for a non-citizen to “be taken into custody and deported,”"was void for vagueness.
As the Supreme Court recognized in Jordan, a necessary component of a non-
Ill
To understand Johnson’s effect on this case, it is helpful to view § 16(b), as incorporated into the INA, alongside the residual clause at issue in Johnson. The INA provides for the removal of non-citizens who have been “convicted of an aggravated felony.” 8 U.S.C. § 1227(a)(2)(A)(iii). Its definition of an aggravated felony includes numerous offenses, including “a crime of violence (as defined in section 16 of Title 18 ... ).” 8 U.S.C. § 1101(a)(43)(F). The subsection of 18 U.S.C. § 16 that the BIA relied on in this case defines a crime of violence 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). Had Congress written out the relevant definition in full instead of relying on cross-referencing, a lawful permanent resident would be removable if “convicted of 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” (emphasis added). The language in ACCA that Johnson held unconstitutional is similar. The ACCA provision defined a “violent felony” as “any crime punishable by imprisonment for a term exceeding one year [i.e., a felony] ... that ... involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added). Importantly, both the provision at issue here and ACCA’s residual clause are subject to the same mode of analysis. Both are subject to the categorical approach, which demands that courts “look to the elements and the nature of the offense of conviction, rather than to the particular facts relating to pétitioner’s crime.”
In Johnson, the Supreme Court recognized two features of ACCA’s residual clause that “conspire[d] to make it unconstitutionally vague.”
A
In Johnson, the Supreme Court condemned ACCA’s residual clause for asking judges “to imagine how the idealized ordinary case of the crime subsequently plays out.” Id. at 2557-58. To illustrate its point, the Court asked rhetorically whether the “ordinary instance” of witness tampering involved “offering a witness a bribe” or instead “threatening a witness with violence.” Id. at 2557; see also id. at 2558 (It is just as likely that “a violent encounter may- ensue” during an attempted burglary as it is that “any confrontation that occurs ... ‘consistís] of nothing more than the occupant’s yelling “Who’s there?” from his window, and the burglar’s run
As with ACCA’s- residual clause, the INA’s crime of violence provision requires courts to “inquire whether ‘the conduct encompassed by the elements of the offense, in the ordinary case, presents’” a substantial risk of force. Delgado-Hernandez v. Holder,
B
In many circumstances, of course, statutes require judges to apply standards that measure various degrees of risk. See Supplemental Brief for Respondent at la, Johnson v. United States, — U.S. -,
C
Notwithstanding the undeniable identity of the constitutional defects in the two statutory provisions, the government and dissent offer several unpersuasive arguments in an attempt to save the INA provision at issue in this case. First, the government and dissent argue that the Supreme Court found ACCA’s standard to be arbitrary in part because the residual clause “force[d] courts to interpret ‘serious potential risk’ in light of the four enumerated crimes” in the provision,
Next, the government argues that ACCA’s residual clause requires courts to consider the risk that would arise after completion of the offense, see Johnson,
The government also argues that § 16(b) has not generated the same degree of confusion among courts that ACCA’s residual clause generated. It notes that, in contrast to the five residual clause cases that the Supreme Court has decided in addition to Johnson, the Court has decided only a single case interpreting section 16(b). See Leocal,
repeatedly indicated that a denial of cer-tiorari means only that, for one reason or another which is seldom disclosed, and not infrequently for conflicting reasons which may have nothing to do with the merits and certainly may have nothing to do with any view of the merits taken by a majority of the Court, there were not four members of the Court who thought the case should be heard.
Daniels v. Allen,
In Johnson, the Supreme Court held that ACCA’s residual clause “produces more unpredictability and arbitrariness than the Due Process Clause tolerates” by “combining indeterminacy about how to measure'the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony.”
We GRANT the petition for review and REMAND to the BIA for further proceedings consistent with this opinion.
Notes
. DHS also charged that petitioner was removable for having committed two crimes of moral turpitude, see 8 U.S.C. § 1227(a)(2)(A)(ii), and for having committed a "theft offense ... or burglary offense for which the term of imprisonment [was] at least one year” — an aggravated felony under 8 us.C. § 1101(a)(43)(G). Although the Immigration Judge (IJ) agreed with DHS that petitioner was removable on either of these two grounds, the Board of Immigration Appeals (BIA) dismissed petitioner’s appeal on the sole ground that he was removable for having
. Notwithstanding the fact that the BIA appeared to consider only the petitioner's 2007 conviction, the government argues in this case that both of petitioners first-degree burglary convictions are crimes of violence under 18 U.S.C. § 16(b). This discrepancy is immaterial, as the same analysis applies to both convictions.
. The subsection of ACCA that includes 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) (emphasis added). As the Court noted in Johnson, the italicized words of this definition are known as the residual clause.
. Several other Circuit Courts of Appeals have also entertained void for vagueness challenges to immigration statutes. See Mhaidli v. Holder,
. Although it is largely irrelevant for the purposes of this case, the dissent’s characterization of the categorical approach is incorrect. The dissent correctly explains that categorical approach cases such as Descamps v. United States, - U.S. -,
. The dissent essentially agrees with this reading except that it argues that Johnson "only prohibits uses [of § 16(b)] that leave uncertain both how to estimate the risk and amount of risk necessary to qualify as a violent crime.” Nothing in Johnson, however, suggests that the Court considered the constitutionality of ACCA’s residual clause in reference to the crime Johnson actually committed. To the contrary, the Court never discussed Johnson's predicate offense — unlawful possession of a short-barreled shotgun — but instead held in absolute terms that "imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution’s guarantee of due process.” Johnson,
. "Does the ordinary burglar invade an occupied home by night or an unoccupied home by day?” Johnson,
. The dissent argues that any "person intent on committing a burglary inherently contemplates the risk of using force should his nefarious scheme be detected” and then asks "Is this not what the Supreme Court was referring to when it noted 'we do not doubt the constitutionality of laws that call for application of a qualitative standard such as "substantial risk” to real-world conduct?’ ” Dissent at 1126 (quoting Johnson,
.ACCA's residual clause required courts to evaluate whether an offense posed "a serious potential risk” while the relevant INA definition asks whether an offense poses "a substantial risk.” Compare 18 U.S.C. § 924(e)(2)(B)(ii), with id. § 16(b). Measuring whether an offense poses a "substantial” risk, however, is no less arbitrary than meas
. At the supplemental oral argument, the government argued that two recent decisions from other circuit courts of appeals conflict with our holding in this case. See Ortiz v. Lynch,
. The relevant provision of ACCA defined a "violent felony” as any felony 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). As noted above in footnote 3, the "residual clause” is defined as the portion of provision that follows "explosives.”
. The Solicitor General's brief in Johnson also recognized that because section 16(b), as applied in the INA, "requires a court to identify the ordinary case of the commission of the offense,” it is "equally susceptible to [Johnson's] central objection to the residual clause.” Supplemental Brief for Respondent at 22-23, Johnson v. United States, - U.S. -,
. Although Johnson concluded that the enumerated offenses added to the residual clause’s indeterminacy, it could well be argued that, if anything, § 16(b) is more vague than the residual clause because of its lack of enumerated examples. To be sure, ACCA’s enumerated examples are "far from clear in respect to the degree of risk each poses.” Johnson,
.In holding that burglary under California law constituted a crime of violence in Lopez-Cardona, we were not asked to consider the question of § 16(b)’s constitutionality; nor did we do so. For the same reason, the dissent’s lengthy discussion of this court’s pri- or holdings regarding burglary and § 16(b) is irrelevant. Here, we do not consider what offenses fall within § 16(b) but instead whether the provision may be constitutionally applied. That latter question is answered here and, as a result, all of our prior cases relating to which offenses fall within the scope of that provision are to that extent of no further force or effect.
. The government also suggested at the supplemental oral argument that our decision in this case would require holding that Johnson overruled Leocal v. Ashcroft,
. During the nine terms preceding the 2015 term, the Supreme Court decided a total of 85 federal criminal appeals versus only 12 immigration appeals. These statistics come from the Harvard Law Review, which compiles statistics each year after the completion of the Supreme Court term. Every version of "The Statistics” includes a table that records the number of cases decided each year by "sub
. Our decision does not reach the constitutionality of applications of 18 U.S.C. § 16(b) outside of 8 U.S.C. § 1101(a)(43)(F) or cast any doubt on the constitutionality of 18 U.S.C. § 16(a)’s definition of a crime of violence.
Dissenting Opinion
dissenting:
Contrary to the majority’s perspective, the Supreme Court’s opinion in Johnson v. United States, — U.S. -,
Our criminal and immigration laws are not as simple as the majority opinion implies. Accordingly, I first describe the purpose of § 16 and how courts have interpreted the statute, before reviewing the Supreme Court’s decision in Johnson, and concluding that the twin concerns expressed by the Supreme Court in Johnson do not infect § 16(b).
I.
Title 18 U.S.C. § 16 contains two distinct definitions of “crime of violence,” with distinct purposes, effects, and judicial pedigrees. Subsection (a) defines “crime of violence” as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” (emphasis added). Subsection (b) sets forth a distinct definition that covers offenses that
An appreciation of the differences between the subsections and their roles informs my understanding of the Supreme Court’s opinions in Descamps v. United States, — U.S. -,
A.
In Descamps, the Government sought an enhancement of Descamps’ sentence under the ACCA, 18 U.S.C. § 924(e), on the basis that his California conviction for burglary was a “violent felony.”
Similar concerns with fairness underlie the Supreme Court’s opinion in Moncrieffe,
In both Descamps and Moncrieffe, the critical inquiry was whether the underlying state criminal conviction fit within a generic federal definition of a crime so that a defendant could be expected to have asserted all relevant defenses in his state trial. The underlying concerns had been set forth by the Supreme Court in Shepard:
Developments in the law since Taylor, and since the First Circuit’s decision in [United States v.] Harris [964 F.2d 1234 (1st Cir.1992) ], provide a further reason to adhere to the demanding requirementthat any sentence under the ACCA rest on a showing that a prior conviction “necessarily” involved (and a prior plea necessarily admitted) facts equating to generic burglary. The Taylor Court, indeed, was prescient in its discussion of problems that would follow from allowing a broader evidentiary enquiry. “If the sentencing court were to conclude, from its own review of the record, that the defendant [who was convicted under a nongeneric burglary statute] actually committed a generic burglary, could the defendant challenge this conclusion as abridging his right to a jury trial?” 495 U.S. at 601 ,110 S.Ct. 2143 . The Court thus anticipated the very rule later imposed for the sake of preserving the Sixth Amendment right, that any fact other than a prior conviction sufficient to raise the limit of the possible federal sentence must be found by a jury, in the absence of any waiver of rights by the defendant. Jones v. United States,526 U.S. 227 , 243, n. 6 [119 S.Ct. 1215 ,143 L.Ed.2d 311 ] (1999); see also Apprendi v. New Jersey,530 U.S. 466 , 490 [120 S.Ct. 2348 ,147 L.Ed.2d 435 ] (2000).
B.
While 18 U.S.C. § 16(a) looks to whether the state conviction contained the elements of a federal offense, the Supreme Court and the circuit courts have recognized that § 16(b) asks a different question vrith different parameters and consequences. In Leocal v. Ashcroft,
Section 16(b) sweeps more broadly than § 16(a), defining a crime of violence as including “any other 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.” But § 16(b) does not thereby encompass all negligent misconduct, such as the negligent operation of a vehicle. It simply covers offenses that naturally involve a person acting in disregard of the risk that physical force might be used against another in committing an offense_The classic example is burglary. A burglary would be covered under § 16(b) not because the offense can be committed in a generally reckless way or because someone may be injured, but because burglary, by its nature, involves a substantial risk that the burglar will use force against a victim in completing the crime.
We most recently recognized this distinct treatment of § 16(b) in Rodriguez-Castellon v. Holder,
Under 18 U.S.C. § 16, the phrase “crime of violence” has two meanings. First, under § 16(a), a state crime of conviction is a crime of violence if it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” ...Second, even if the state crime does not include one of the elements listed in § 16(a), it is a “crime of violence” under § 16(b) if it is: (i) a felony; and (ii) “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 Supreme Court has explained that § 16(b) criminalizes conduct that “naturally involve[s] a person acting in disregard of the risk that physical force might be used against another in committing an offense.” Leocal v. Ashcroft, 548 U.S. 1 , 10,125 S.Ct. 377 ,160 L.Ed.2d 271 (2004).
Our holding in Rodriguez-Castellon is consistent with our prior opinions recognizing that first-degree burglary under California Penal Code § 459 remains an “aggravated felony” under § 16(b) even if the state crime did not include an element of the federal crime and thus was not an “aggravated felony” under § 16(a). See United States v. Ramos-Medina,
In Chuen Pin Kwong v. Holder,
The question for decision, then, is whether Kwong’s [burglary] offense “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of [its commission].” 18 U.S.C. § 16(b).
We answered that question in the affirmative some time ago in United States v. Becker,919 F.2d 568 , 573 (9th Cir.1990), where we held that “first-degree burglary under California law is a ‘crime of violence’ ” as defined by 18 U.S.C. § 16(b). See also United States v. Park,649 F.3d 1175 , 1178-79 (9th Cir.2011). We pointed out in Becker that “[a]ny time a burglar enters a dwelling with felonious or larcenous intent there is a risk that in the course of committing the crime he will encounter one of its lawful occupants, and use physical force against that occupant either to accomplish his illegal purpose or to escape apprehension.”919 F.2d at 571 (footnote omitted).6
Id. at 878.
Similarly, in United States v. Avila,
Thus, the Supreme Court, our prior decisions, and .the Fourth Circuit, all recognize that the inquiries under § 16(a) and
II.
Having set forth the scope of § 16(b) and the courts’ treatment of the section, I turn to the Supreme Court’s opinion in Johnson.
A.
The Supreme Court held that the residual clause of the Armed Career Criminal Act of 1984 violates the Constitution’s guarantee of due process.
By asking whether the crime “otherwise involves conduct that presents a serious potential risk,” moreover, the residual clause forces courts to interpret “serious potential risk” in light of the four enumerated crimes — burglary, arson, extortion, and crimes involving the use of explosives. These offenses are “far from clear in respect' to the degree of risk each poses.” Begay [v. United States ], 553 U.S. [137] 143 [128 S.Ct. 1581 ,170 L.Ed.2d 490 (2008)].... By combining indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony, the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates.
Id. at 2558.
The Court then reviewed its prior efforts to establish a standard and concluded that “James, Chambers, and Sykes failed to establish any generally applicable test that prevents the risk comparison required by the residual clause from devolving into guesswork and intuition.”
The Court stated, in rejecting the argument that because there may be straightforward cases under the residual clause, the clause is not constitutionally vague:
The Government and the dissent next point out that dozens of federal and state criminal laws use terms like “substantial risk,” “grave risk,” and “unreasonable risk,” suggesting that to hold the residual clause unconstitutional is to place these provisions in constitutional doubt. See post, at 2558-2559. Not at all. Almost none of the cited laws links a phrase such as “substantial risk” to a confusing list of examples. “The phrase ‘shades of red,’ standing alone, does not generate confusion or unpredictability; but the phrase ‘fire-engine red, light pink, maroon, navy blue, or colors that otherwise involve shades of red’ assuredly does so.” James,550 U.S., at 230, n. 7 ,127 S.Ct. 1586 , (Scalia, J., dissenting). More importantly, almost all of the cited laws require gauging the riskiness of conduct in which an individual defendant engages on a particular occasion. As a general matter, we do not doubt the constitutionality of laws that call for the application of a qualitative standard such as “substantial risk” to real-world conduct; “the law is full of instances where a man’s fate depends on his estimating rightly ... some matter of degree,” Nash v. United States,229 U.S. 373 , 377,33 S.Ct. 780 ,57 L.Ed. 1232 (1913). The residual clause, however, requires application of the “serious potential risk” standard to an idealized ordinary case of the crime. Because “the elements necessary to determine the imaginary ideal are uncertain both in nature and degree of effect,” this abstract inquiry offers significantly less predictability than one “[t]hat deals with the actual, not with an imaginary condition other than the facts.” Int. Harvester Co. of Am. v. Kentucky,234 U.S. 216 , 223,34 S.Ct. 853 ,58 L.Ed. 1284 (1914).
Id. at 2561.
The Court also declined the dissent’s invitation “to save the residual clause from vagueness by interpreting it to refer to the risk posed by the particular conduct in which the defendant engaged, not the risk posed by the ordinary case of the defendant’s crime.” Id. at 2562. It explained:
In the first place, the Government has not asked us to abandon the categorical approach in residual-clause cases. In addition, Taylor had good reasons to adopt the categorical approach, reasons that apply no less to the residual clause than to the enumerated crimes. Taylor explained that the relevant part of the Armed Career Criminal Act “refers to ‘a person who ... has three previous convictions’ for — not a person who has committed' — -three previous violent felonies or drug offenses.”495 U.S. at 600 ,110 S.Ct. 2143 . This emphasis on convictions indicates that “Congress intended the sentencing court to look only to the fact that the defendant had been convicted of crimes falling within certain categories, and not to the facts underlying the prior convictions.” Ibid. Taylor also pointed out the utter impracticability of requiring a sentencing court to reconstruct, long after the original conviction, the conduct underlying that conviction.
Id. at 2562.
Finally, the opinion’s penultimate paragraph reads:
We hold that imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution’s guarantee of due process. Our contrary holdings in James and Sykes are overruled. Today’s decisiondoes not call into question application of the Act to the four enumerated offenses, or the remainder of the Act’s definition of a violent felony.
Id. at 2563.
B.
I read Johnson as setting forth a two-part test: whether the statute in issue (1) “leaves grave uncertainty about how to estimate the risk posed by the crime”; and (2) “leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony.” Id. at 2557-58. Applying this test, the Court faulted the residual clause for requiring potential risk to be determined in light of “four enumerated crimes — burglary, arson, extortion, and crimes involving the use of explosives ... [which] are far from clear in respect to the degree of risk each poses.” Id. at 2558 (internal citation omitted). The Court’s concern was clarified by its reference to a prior dissent by Justice Scalia: “The phrase ‘shades of red,’ standing alone does not generate confusion or unpredictability; but the phrase ‘fire-engine red, light pink, maroon, navy blue or colors that otherwise involve shades of red’ assuredly does so.” Id. at 2561.
The Court also faulted the ■ residual clause for tying “the judicial assessment of risk to a judicially imagined ‘ordinary case’ of a crime, not to real-world facts or statutory elements.” Id. at 2557. However, the Court specifically stated that it was not abandoning the categorical approach, which, as noted, looks to the “ordinary case.” See Descamps,
Indeed, such an interpretation seems compelled in light of the fact that Johnson did not even mention Leocal v. Ashcroft,
Finally, I note that perhaps in an attempt to foreclose approaches such as that offered by today’s majority in this appeal, the Supreme Court concluded by stating that its decision “does not call into question application of the Act to the four enumerated offenses [which include burglary] or the remainder of the Act’s definition of a violent felony.” Johnson,
III.
After such an esoteric discussion, it would be easy to lose sight of what is at issue in this case. Dimaya, a native and citizen of the Philippines, was twice convicted of first-degree residential burglary under California Penal Code § 459 and sentenced each time to two years in prison. The Department of Homeland Security charged Dimaya with being removable because he had been convicted of an aggravated felony under 8 »U.S.C. § 1101(a)(43)(F), which is a “crime of violence ... for which the term of imprison
There is no uncertainty as to how to estimate the risk posed by Dimaya’s burglary crimes. The Supreme Court held in Leocal that § 16(b) “covers offenses that naturally involve a person acting in disregard of the risk that physical force might be used against another in committing an offense.”
We have consistently followed this line of reasoning. See United States v. Becker,
Nor is there any uncertainty as to “how much risk it takes for a crime to qualify as a violent felony,” Johnson,
In Johnson, after nine years of trying to derive meaning from the residual clause, the Supreme Court held that it was unconstitutionally vague. Section 16(b) is not the ACCA’s residual clause; nor has its standard proven to be unworkably vague. Over a decade ago, the Supreme Court in Leocal held that § 16(b) “covers offenses that naturally involve a person acting in disregard of the risk that physical force might be used against another in committing an offense.”
. The statute, 18 U.S.C. § 924(e)(2)(B), reads, in relevant part:
the term "violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that—
(i) has as an element the use, attempted use, or threatened usé of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
. In Taylor, the Court stated: “[w]e conclude that a person has been convicted of burglary for purposes of a § 924(e) enhancement if he is convicted of any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.”
.In Taylor, the Supreme Court noted:
Our present concern is only to determine what offenses should count as "burglaries” for enhancement purposes. The Government remains free to argue that any offense — including offenses similar to generic burglary — should count towards enhancement as one that "otherwise involves conduct that presents a serious potential risk of physical injury to another” under § 924(e)(2)(B)(ii).
. The Supreme Court explained:
The modified approach thus acts not as an exception, but instead as a tool. It retains the categorical approach’s central feature: a focus on the elements, rather than the facts, of a crime. And it preserves the categorical approach’s basic method: comparing those elements with the generic offense’s. All the modified approach adds is a mechanism for making that comparison when a statute lists multiple, alternative elements, and so effectively creates "several different ... crimes.” Nijhawan [v. Holder], 557 U.S. [29] 41 [129 S.Ct. 2294 ,174 L.Ed.2d 22 (2009) ]. If at least one, but not all of those crimes matches the generic version, a court needs a way to find out which the defendant was convicted of.
Descamps, 133 S.Ct. at 2285.
. The INA provides that an alien "convicted of an aggravated felony” is removable, § 1227; is not eligible for asylum, § 1158(b)(2)(a)(ii); and is not eligible for cancellation of removal or adjustment of status, § 1229b(a)(3).
. In response to Kwong's argument that California’s definition of first-degree burglary is broader than the generic federal definition, the Ninth Circuit held:
These arguments are foreclosed, however, by our recent decision in Lopez-Cardona v. Holder,662 F.3d 1110 (9th Cir.2011). Lopez-Cardona flatly held that, under Becker, first-degree burglary in violation of California Penal Code § 459 was a crime of violence within the meaning of 18 U.S.C. § 16(b). Id. at 1113. It also held that Aguila-Montes had no effect on that conclusion because Aguila-Montes was based on a different definition of "crime of violencé”; Aguila-Montes held only that a conviction under California Penal Code § 459 did not constitute a conviction for generic burglary. Lopez-Cardona,662 F.3d at 1113 . Aguila-Montes accordingly did not contradict or affect Becker’s holding that first-degree burglary under § 459 is a crime of violence because it involves a substantial risk that physical force may be used in the course of committing the offense. Id. at 1111-12.
. The residual clause of the ACCA increased the prison term of a defendant who had been convicted of "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).
. James v. United States,
.The Court commented;
The most telling feature of the lower courts’ decisions is not division about whether the residual clause covers this or that crime (even clear laws produce close cases); it is, rather, pervasive disagreement about the nature of the inquiry one is supposed to conduct and the kinds of factors one is supposed to consider.
Id. at 2560.
. This statement from Leocal forecloses, for purposes of § 16(b), attempts to distinguish burglary convictions based on statutes that cover structures other than dwellings or do not require unlawful entry. Neither of these distinctions change the "nature” of the offense nor ameliorates the "substantial risk that the burglar will use force against a victim in completing the crime.”
. I am not alone in questioning the application of Johnson beyond the ACCA’s residual clause. Although the opinion has only been on the books for a little over three months, the Eighth Circuit in Ortiz v. Lynch,
. There can be no doubt as to the majority’s intent. Footnote 14 of the majority opinion asserts that "all of our prior cases relating to which offenses fall within the scope of [§ 16(b) ] are to that extent of no further force or effect.”