Oyebanji v. GonzalesOyebanji v. Gonzales
Michael A. Chagares (argued), Thomas R. Calcagni, Office of the United States Attorney, Newark, N.J., Counsel for Appellee.
ALITO, Circuit Judge.
1 Larry Ololade Oyebanji appeals from the District Court‘s order denying his petition for a writ of habeas corpus. Oyebanji challenges a decision of the Board of Immigration Appeals (“BIA“) holding that his conviction for vehicular homicide under New Jersey law was a “crime of violence” аs defined by
I.
2 Oyebanji is a citizen of Nigeria and has been a lawful permаnent resident of the United States since 1997. A lawful permanent resident is subject to removal if he or she commits an “aggravated felony.” See
3 In February 1998, Oyebanji was arrested in East Orange, New Jersey, after causing a car accident that killed another person. Oyebanji pled guilty to vehicular homicide, in violation of
4 In June 2000, an Immigration Judge (“IJ“) held that Oyebanji‘s conviction for vehicular homicide was an “aggravated felony” under the Immigration and Nationality Act (INA),
5 Oyebanji filed a petition for a writ of habeas corpus in the United States District Court for the District of New Jersey, seеking relief from the order of removal. The District Court denied Oyebanji‘s petition because it found that his offense was a crime of violence. Oyebanji then took the appeal that is now before us.
6 After hearing oral argument, we held this appeal c.a.v. because the Supreme Court had granted certiorari in Leocal, a case addressing a similar issue. Following the Supreme Court‘s decision in that case, we invited the parties to file supplemental briefs addressing its аpplication to the case at hand.
II.
7 Where the underlying facts of a habeas petition are undisputed, we exercise plenary review over a district court‘s decision. See Sierra v. Romaine, 347 F.3d 559, 564 (3d Cir. 2003), vacated on other grounds, 543 U.S. 1109, 125 S. Ct. 962, 160 L. Ed. 2d 897 (2005).3 Because the BIA is not charged with administering
8 Section 16 defines a crime of violence as follows:
9 (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
10 (b) any other offense that is a felony and that, by its nature, involves а substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
11
12 In Leocal, the Supreme Court held that a criminal DUI offense that either lacks a mens rea component оr requires only a showing of negligence in the operation of a vehicle is not a crime of violence under Section 16. The Court noted, however, that Leocal did not present “the question whether a state or federal offense that requires proof of the reckless use of force against a person or property of another qualifies as a crime of violence under
13 In the present case, both Oyebanji and the government agree that Subsection 16(a) does not apply, and both frame the issue here as whether Oyebanji‘s felony conviction for vehicular homicide under New Jersey law constitutes a crime of violence under Subsection 16(b), meaning a felony that “by its nature, involves a substantiаl risk that physical force against the person or property of another may be used in the course of committing the offense.” Under New Jersey law, vehicular homicide requires proof of recklessness.
IV.
14 Although Leocal did not decide the question presented here, the Leocal opinion suggests that Oyebanji‘s crime was not a crime of violence as the Suprеme Court understands that term. The cornerstone of the Leocal Court‘s reasoning was that the concept of the use of physical force against the person or property of another “requires active employment” and “naturally suggests a higher degree of intent than negligent or merely accidental conduct.” Leocal, 125 S. Ct. at 382 (emphasis added). The Court noted that this concept is incorporated into both subsections (a) and (b) of
15 In construing both parts of § 16, we cannot forget that we ultimately are determining the meaning of the term “crime of violence.” The ordinary meaning of this term, combined with § 16‘s emphasis on the use of physical force against another person (or the risk of having to use such force in committing a crime), suggest a category of violent, active crimes that cannot be said naturally to include DUI offenses. Cf. United States v. Doe, 960 F.2d 221, 225 (C.A.1 1992) (Breyer, C.J.) (observing that the term “violent felony” in
18 U.S.C. § 924(e) “calls to mind a tradition of crimes that involve the possibility of more closely related, active violence“). Interpreting § 16 to encompass accidental or negligent conduct would blur the distinction between the “violent” crimes Congress sought to distinguish for heightened punishment and other crimes.
16 125 S. Ct. at 383 (emphasis added).
17 The Court‘s reliance on the ordinary meaning of the term “violent” crime and the Court‘s repeated reference to “accidental” conduct as falling outside the reach of
19 (1) any felony;
20 (2) any crime of violence, as defined in Section 16 of Title 18; or
21 (3) any crime of reckless driving or of driving while intoxicated or under the influence of alcohol or of prohibited substances if such crime involves personal injury to another.
22
23 Following this reasoning, we cannot ignore that Section 101(h) also lists “any сrime of violence” separately from “any crime of reckless driving.” We must instead interpret that separate listing as suggesting that injury-causing reckless driving offenses in particular are excluded from the category of crimes of violеnce. Since vehicular homicide under New Jersey law is a form of reckless driving that causes death, Leocal‘s reasoning seems to suggest that Oyebanji‘s offense is excluded from the category of crimes of violence.
24 We recognize thаt there are plausible grounds for distinguishing Leocal and that reasonable arguments can be made in support of the proposition that Oyebanji‘s offense of conviction should be viewed as a crime of violence. But as a lower federal court, we are advised to follow the Supreme Court‘s “considered dicta.” See McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 19 (1st Cir. 1991) (“[F]ederal appellate courts are bound by the Supreme Court‘s considered dicta almost as firmly as by the Court‘s outright holdings, particularly when, аs here, a dictum is of recent vintage and not enfeebled by any subsequent statement.“); see also United States v. Marlow, 278 F.3d 581, 588 n. 7 (6th Cir. 2002); Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996); City of Timber Lake v. Cheyenne River Sioux Tribe, 10 F.3d 554, 557 (8th Cir. 1993); Nichol v. Pullman Standard, Inc., 889 F.2d 115, 120 n. 8 (7th Cir. 1989); United States v. Bell, 524 F.2d 202, 206 (2d Cir. 1975). In view of the opinion in Leocal, we hold that Oyebanji‘s offense was not a crime of violence in the relevant sense. While we appreciate the forcе of the government‘s arguments to the contrary, we believe that those arguments must be directed to the Supreme Court or Congress.
25 Finally, we note that in a case concerning the Pennsylvania crime of reckless burning or exploding, this Court “сonclude[d] that § 16(b) crimes are those raising a substantial risk that the actor will intentionally use force in the furtherance of the offense.” Tran v. Gonzales, 414 F.3d 464, 472 (3d Cir. 2005) (emphasis in original).
V.
26 For the reasons set out above, we reverse the decision of the District Court.
Notes:
Notes
* Honorable J. Clifford Wallace, Senior Judge of the United States Court of Appеals for the Ninth Circuit, sitting by designation.
Notes
(3) Recklessly. A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the materiаl element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor‘s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor‘s situation. “Recklessness,” “with recklessness” or equivalent terms have the same meaning.