UNITED STATES OF AMERICA, v. DARRYL CARTER, Defendant.
Crim. No. 04-cr-0155 (ESH)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Defendant Darryl Carter was convicted in 2004 of one count of Hobbs Act robbery in violation of
Before the Court is defendant‘s motion, filed pursuant to
BACKGROUND
I. FACTUAL BACKGROUND
The facts relevant to this motion can be briefly summarized. Pursuant to a plea agreement, defendant pleaded guilty to one count of Hobbs Act robbery in violation of
At sentencing, the court applied the career offender Guideline and determined that defendant‘s sentencing range for the Hobbs Act robbery conviction was 151-188 months.3
II. THE SUPREME COURT‘S “RESIDUAL CLAUSE” DECISIONS: JOHNSON (2015); WELCH (2016); BECKLES (2017), DIMAYA (2018) AND DAVIS (2019)
Eleven years after defendant was sentenced, the Supreme Court issued a series of “residual clause” decisions.
A. Johnson
The first case was Johnson v. United States, which concerned the “residual clause” in the Armed Career Criminal Act‘s (“ACCA“) definition of a violent felony. 135 S. Ct. 2551 (2015). The ACCA provides that a defendant convicted of violating
(i) has as an element the use, attempted use, or threatened use 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.
B. Welch
In Welch v. United States, the Supreme Court held that its decision in Johnson applied retroactively to cases on collateral review. 136 S. Ct. 1257, 1265 (2016) (”Johnson is ... a substantive decision and so has retroactive effect . . . in cases on collateral review.“).
Johnson and Welch spawned a flood of
The first of these cases was Beckles v. United States, which challenged the residual clause in the “career offender” provision of the Sentencing Guidelines. 137 S. Ct. 886, 890 (2017). The career offender Guideline in effect at the time Beckles was sentenced provided that a “crime of violence” included
any offense under federal or state law, punishable by imprisonment for a term exceeding one year that--
(1) has as an element the use, attempted use, or threatenеd use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
U.S.S.G. § 4B1.2(a) (emphasis added to “residual clause“). This clause is identical to the ACCA‘s residual clause and to the one that was in effect when defendant was sentenced. However, unlike defendant, Beckles was sentenced after the Supreme Court‘s ruling that the mandatory Guidelines were unconstitutional.5 For a majority of the Court, this distinction was critical, forming the basis for their conclusion that Beckles was not sentenced pursuant to an unconstitutionally vague residual clause because “the advisory Guidelines are not subject to vagueness challenges under the Due Process Clause.”6 Beckles, 137 S. Ct. at 890 (emphasis added). The Court explained:
[T[he Due Process Clause prohibits the Government from “taking away someone‘s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” Applying this standard, the Court has invalidated two kinds of criminal laws as “void for vagueness“: laws that define criminal offenses and laws that fix the permissible sentences for criminal offenses.
Id. at 892 (quoting Johnson, 135 S. Ct. at 2556). The Court found that the advisory Guidelines, unlike the ACCA, “do not fix the permissible range of sentences. To the contrary, they merely guide the exercise of a court‘s discretion in choosing an appropriate sentence within the statutory range.” Id.. Accordingly, the Court concluded that the advisory Guidelines could not be unconstitutionally vague. Id.
Justices Ginsburg and Sotomayor concurred in the judgment. believing that the case should have been decided on the much narrower ground that § 4B1.2 was not vague as applied to Beckles. See id. at 897-98 (Ginsburg, J., concurring); id. at 898 (Sotomayor, J., concurring).7 Justice Sotomayor also wrote separately to explain that although she did not agree with the Court‘s holding that the advisory Guidelines were not subject to vagueness challenges,8 the
The Court‘s adherence to the formalistic distinction between mandatory and advisory rules at least leaves open the question whether defendants sentenced to terms of imprisonment before our decision in United States v. Booker, 543 U.S. 220 (2005)—that is, during the period in which the Guidelines did “fix the permissible range of sentences,“—may mount vagueness attacks on their sentences.
Beckles, 137 S. Ct. at 903 n.4 (Sotomayor, J.) (quoting id. at 892) (internal citations omitted).
D. Dimaya
Next came Sessions v. Dimaya, which challenged the constitutionality of a similarly worded “residual clause” in the definition of a “crime of violence” in
E. Davis
Finally came United States v. Davis, in which the Supreme Court considered whether the residual clause in
(A) has as an elemеnt the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) 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.
III. DEFENDANT‘S § 2255 MOTION
On May 31, 2016, defendant petitioned the D.C. Circuit pursuant
On June 23, 2016, the Court of Appeals granted the petition, finding that defendant had “made a prima facie showing that his claims rely on a new, previously unavailable rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.” (Order of USCA at 1.) The Court of Appeals’ order directed that the petition be transmitted to the district court for filing as an “abridged” motion pursuant to
The petition for leave to file a second or successive § 2255 motion was filed within one year of the Supreme Court‘s June 26, 2015 Johnson decision, so the “abridged” motion shall be deemed timely filed in district court.
Id. Finally, the order stated that the Court of Appeals “expresses no opinion as to the merits of petitioner‘s claims.” See id.
Defendant‘s abridged motion was docketed in the district court on June 23, 2016 (see Def.‘s Mot. to Vacate, ECF No. 93), but, as previously noted, further briefing was deferred pending thе Supreme Court‘s resolution of Beckles, Dimaya and Davis.14 (See Johnson Standing Order Nos. 2-7 (available at https://www.dcd.uscourts.gov/news/standing-orders regarding-possible-sentence-reductions-pursuant-johnson-v-united-states-135-s).) On March 12, 2019, defendant filed his supplemental motion to vacate, the government responded, opposing any relief, and defendant filed a reply. (See Def.‘s Supp. Mot. to Vacate, ECF No. 94 (“Mot.“); Gov‘t Opp. to Mot., ECF No. 101 (“Opp.“); Def.‘s Reply, ECF No. 102 (“Reply“).)
ANALYSIS
Defendant‘s
Defendant claims that his conviction for using a shotgun during a crime of violence in violation of
The Hobbs Act defines robbery as
the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.
Although the D.C. Circuit has not yet addressed the question, every other circuit to have considered it has concluded that Hobbs Act robbery constitutes a crime of violence under the elements clause. See United States v. Garcia-Ortiz, 904 F.3d. 102, 106 (1st Cir. 2018), cert. denied, 139 S. Ct. 1208 (2019); United States v. Hill, 890 F.3d 51, 54 (2d Cir. 2018), cert. denied, 139 S. Ct. 844 (2019); United States v. Robinson, 844 F.3d 137, 140-41 (3d Cir. 2016), cert. denied, 138 S. Ct. 215 (2017); United States v. Buck, 847 F.3d 267, 274-75 (5th Cir. 2017), cert. denied, 138 S. Ct. 149 (2017); United States v. Gooch, 850 F.3d 285, 292 (6th Cir. 2017), cert. denied, 137 S. Ct. 2230 (2017); United States v. Fox, 878 F.3d 574, 579 (7th Cir. 2017), cert. denied, 138 S. Ct. 1603 (2018); United States v. House, 825 F.3d 381, 387 (8th Cir. 2016), cert. denied, 137 S. Ct. 1124 (2017); United States v. Howard, 650 Fed. App‘x 466, 468 (9th Cir. 2016); United States v. Melgar-Cabrera, 892 F.3d 1053, 1060-66 (10th Cir. 2018), cert. denied, 139 S. Ct. 494 (2018); In re St. Fleur, 824 F.3d 1337, 1340-41 (11th Cir. 2016). In addition, several judges in this jurisdiction have confronted this issue, and they have reached the same conclusion. See United States v. Thomas, No. 17-cr-0194, 2019 WL 1590101, at *1 (D.D.C. Apr. 12, 2019) (Moss, J.); Tr. of Status Conf. at 12-18, United States v. Quinones, No. 16-cr-223 (D.D.C. Nov. 8, 2018) (Chutkan, J.) (docketed at ECF No. 30); United States v. McCallister, No. 15-cr-0171, 2016 WL 3072237, at *1 (D.D.C. May 31, 2016) (A. Jackson, J.) (“In this opinion, the Court joins the chorus of judges declaring that a robbery in violation of the Hobbs Act is a ‘crime of violence’ for purposes of
Despite this extensive list of contrary precedent, defendant argues that “Hobbs Act robbery does not constitute a ‘crime of violence’ under
Accordingly, as Hobbs Act robbery is a “crime of violence” under the elements clause of
II. THE CAREER OFFENDER/MANDATORY GUIDELINES CLAIM
Defendant‘s other “residual clause” claim is that the 160-month sentence for Hobbs Act robbery conviction should be vacated so that he can be resentenced without application of the “career offender” sentencing Guideline.
As previously noted, when defendant was sentenced in 2004 it was agreed that he had at least two prior convictions for crimes of violence, as then defined in § 4B1.2 of the Guidelines,
The version of the Guidelines in effect when defendant was sentenced defined a “crime of violence” as
any offense under federal or state law, punishable by imprisonment for a term exceeding one year that--
(1) has as an element the use, attempted use, or threatened use of physical force against the person of аnother, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
U.S.S.G. § 4B1.2(a) (emphasis added to “residual clause“).16 Defendant now claims that he should not have been sentenced as a career offender because (1) the residual clause in the mandatory Guidelines is unconstitutionally vague; and (2) absent the residual clause, he no longer has two prior convictions that meet the definition of a crime of violence. The government does not dispute that at least two of defendant‘s three prior convictions would not constitute “crimes of violence” absent the residual clause, but it raises a host of other procedural and substantive arguments in opposition to defendant‘s claim.
A. Procedural Barriers
The government contends that defendant‘s career offender claim is procedurally barred for four distinct reasons: (1) defendant waived his right to bring this claim in his plea agreement;
1. Waiver in Plea Agreement
Defendant‘s plea agreement included the following language:
Limited Waiver of Appeal Rights. Your client is aware that federal law, specifically18 U.S.C. §3742 , affords him the right to appeal his sentence. Your client is aware that the parties’ calculation of the offense level under the Sentencing Guidelines is not a promise of the sentence to be imposed on him and is not binding on the Judge. Knowing that, your client waives the right to appeal his sentence or the manner in which it was determined pursuant to18 U.S.C. §3742 , except to the extent that (a) the Court sentences your client to a period of imprisonment longer than the statutory maximum, or (b) the Court departs upward from the applicable Sentencing Guideline range pursuant to the provisions of U.S.S.G. §5K.2. Further, your client reserves his right to make a collateral attack upon his sentence pursuant to28 U.S.C. §2255 , if new and currently unavailable information becomes known to him. In agreeing to this waiver, your client is aware that his sentence has not yet been determined by the Court. Realizing the uncertainty in estimating what sentence the Court ultimately will impose, your client knowingly and willingly waives his right to appeal the sentence, to the extent noted above, in exchange for the concessions made by the government, in this agreement.
(Plea Agreement ¶ 7 (emphasis added).)
The government argues that the italicized sentence in ¶ 7 should be interpreted as a waiver of defendant‘s right to bring his career offender claim. It reaches this conclusion, arguing that: (1) the sentence waives defendant‘s right to bring a
A plea agreement is a contract and so we advert to principles of contract law in interpreting it. Ambiguity in a plea agreement, as in any other type of contract, is construed against the drafter. . . . The government drafted [the defendant‘s] plea agreement. If the agreement does not unambiguously preclude [the defendant] from appealing the issues he presents to us, he has not knowingly, intelligently and voluntarily waived them.
Id. (internal citations omitted). The Court in Hunt went on to reject an interpretation of a plea agreement that would have waived defendant‘s right to appeal a condition of supervised release because it was “not convinced . . . that the only permissible interpretation of the provision [wa]s the one [the government proposed] or that [the defendant] read it that way when he signed the plea agreement.” Id. at 1028; see also Cross v. United States, 892 F.3d 288, 298-99 (7th Cir. 2018) (to the extent the waiver of collateral challenges in a plea agreement was “ambiguous,” it “should not apply to [the defendant‘s] sectiоn 2255 motion” challenging his mandatory Guidelines sentence).
Here, the government‘s proposed interpretation, while plausible, is certainly not the “only permissible interpretation” of the relevant language. Hunt, 843 F.3d at 1028. Indeed, the government never even argues that the plea agreement “unambiguously preclude[s]” defendant‘s claim—only that it is “best understood” to mean what the government wants it to mean. Accordingly, the phrase “new and previously unavailable information” cannot be read to exclude
2. Procedural Default
The government also argues that defendant‘s career offender claim is barred by the “procedural default rule” because he did not raise it at sentencing or on direct appeal. (Opp. at 14.)
“The procedural default rule generally precludes consideration of an argument madе on collateral review that was not made on direct appeal, unless the defendant shows cause and prejudice.” United States v. Hughes, 514 F.3d 15, 17 (D.C. Cir. 2008). A defendant can show cause where a claim “is so novel that its legal basis [was] not reasonably available to counsel” at the time of appeal. Bousley v. United States, 523 U.S. 614, 622 (1998) (quoting Reed v. Ross, 468 U.S. 1, 16 (1984)). To establish prejudice, a defendant “must at least demonstrate that ‘there is a reasonable probability that, but for [the errors], the result of the proceeding would have been different.‘” United States v. Pettigrew, 346 F.3d 1139, 1144 (D.C. Cir. 2003) (alteration in original) (quoting United States v. Dale, 140 F.3d 1054, 1056 n.3 (D.C. Cir. 1998) (quoting Strickland v. United States, 466 U.S. 668, 694 (1984))). In addition, the Court may “assume for purposes of [the prejudice] analysis that there was [ ] error.” Id. at 1145.
Defendant has shown both cause and prejudice. Cause is established because, as the D.C. Circuit has observed, “no one . . . could reasonably have anticipated Johnson.” United States v. Redrick, 841 F.3d 478, 480 (D.C. Cir. 2016).
As for showing prejudice, the D.C. Circuit has held that in the sentencing context, “actual prejudice” means that the alleged error at sentencing must have “worked to [the defendant‘s] actual and substantial disadvantage.” United States v. Hicks, 911 F.3d 623, 627 (D.C. Cir. 2018) (quoting Pettigrew, 346 F.3d at 1144), cert. denied, 139 S. Ct. 2651 (2019). For example, a
As defendant has shown both cause and prejudice for not previously raising his career offender claim, this claim is not barred by the procedural default rule.
3. Limits on Successive § 2255 Motions: § 2255(h)(2) and § 2244(b)
The government next argues that defendant‘s motion is barred by the limitation on second or successive motions contained in
Section 2255(h) provides that:
A second or successive [2255] motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain—
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive tо cases on collateral review by the Supreme Court, that was previously unavailable.
The government argues that the interplay of these two provisions means that even though the D.C. Circuit concluded that defendant‘s career offender claim “made a prima facie showing that his claims rely on a new, previously unavailable rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court” (Order of USCA at 1), to avoid dismissal now he must meet the more stringent requirement of actually “showing” that the motion satisfies the requirements of
As defendant points out, there is an argument to be made that the government is
Turning then to the dispositive issue: does defendant’s career offender claim “contain . . . a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme
First, whatever the scope and application of the Johnson “rule” is, which is obviously disputed, if one gives the word “contain” its usual and ordinary meaning, it is hard to accept the government’s argument that defendant’s motion does not “contain” the rule recognized in Johnson. See, e.g., https://www.merriam-webster.com/dictionary/contain (in relevant part, defining “contain” as “to have within : hold” or “comprise, include“); https://www.dictionary.com/browse/contain (in relevant part, defining “contain” as “to have as contents or constituent parts; comprise; include“). Other courts have reached the same conclusion. For example, in Cruz v. United States, the court concluded that “the meaning of ‘contain’ requires the petition to rely on the new rule to substantiate its claim, but [it] does not require the new rule to conclusively decide the claim on its facts.” No. 11-cv-787, 2018 WL 1541898, at *13 (D. Conn. Mar. 29, 2018). Rather, the court explained, “[e]ven if [a defendant’s] claim may require a ‘non-frivolous extension of [the] qualifying rule tо a set of facts not considered by the [Supreme] Court,” the “claim, nonetheless, depends on the rule announced in [the Supreme Court’s case].” Id. at *14.
Next, Congress’s use of “rule,” rather than “holding,” indicates that it did not intend to strictly limit the reach of the phrase “new rule” required by
Finally, and critically, the stricter reading the government urges has the potential, borne out in the present case, see infra Section II.B., to prevent defendants with meritorious claims from obtaining any relief. While
For the foregoing reasons, the Court finds that defendant’s career offender claim satisfies the requirement in
4. Timeliness: § 2255(f)(3)
The government’s final procedural argument is that defendant’s career offender claim is untimely.
- the date on which the judgment of conviction becomes final;
- the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
- the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
- the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
Defendant relies solely on
According to defendant, the “right” recognized in Johnson and asserted in his motion is “‘the right not to have his sentence dictated by the unconstitutionally vague language of the mandatory residual clause.‘” (Mot. at 23 (quoting Cross, 892 F.3d at 294).) The government disagrees, arguing that
Although a number of Circuits have endorsed the government’s position,23 the D.C. Circuit is not one of them. In addition, there is contrary authority from the Seventh Circuit, see Cross, 892 F.3d at 294; a strong suggestion from the First Circuit that it would agree with Cross,
This Court finds persuasive the reasoning of the courts and judges who have endorsed a less restrictive reading of
Moreover, if one accepts the government’s argument and interprets
Today this Court denies petitioners, and perhaps more than 1,000 like them, a chance to challenge the constitutionality of their sentences. They were sentenced under a then-mandatory provision of the U.S. Sentencing Guidelines, the exact language of which we have recently identified as unconstitutionally vague in another legally binding provision. These petitioners argue that their sentences, too, are unconstitutional. This important question, which has generated divergence among the lower courts, calls out for an answer. Because this Court’s decision to deny certiorari precludes petitioners from obtaining such an answer, I respectfully dissent.
Brown v. United States, 139 S. Ct. 14, 14 (2018) (Sotomayor, J., joined by Ginsburg, J.) (dissenting from denial of certiorari in Brown and nine other cases); see also Grummitt v. United States, 139 S. Ct. 2707 (2019) (Sotomayor, J., joined by Ginsburg, J.) (dissenting from denial of certiorari for the same reasons set forth in Brown). The unfairness of this situation is particularly severe in cases such as defendant’s because he has already served more time than he would likely receive if resentenced without application of the career offender Guideline, but if his claim is deemed untimely, he may never get a resolution of his claim, and he will have to spend another seven years in prison. See supra note 19. Defendant should not be penalized by the Supreme Court’s refusal to grant certiorari so that he is blocked from challenging the constitutionality of his sentence under Johnson and its progeny. Under these circumstances, it is incumbent on lower courts to address the merits of defendant’s claim.
Accordingly, the Court concludes that defendant’s career offender claim is timely under
Having concluded that defendant is not procedurally barred from raising his career offеnder claim, the question remains whether the Supreme Court’s decisions in Johnson and Welch require retroactive invalidation of the residual clause in the mandatory career offender Guideline.
To date, neither the Supreme Court nor the D.C. Circuit has addressed this question. See Beckles, 137 S. Ct. at 903 n.4 (Sotomayor, J., concurring) (decision in Beckles “leaves open the question whether defendants sentenced to terms of imprisonment before our decision in [Booker] . . . may mount vagueness attacks on their sentences“); see also Brown, 139 S. Ct. at 15 (Sotomayor, J., dissenting from denial of certiorari) (“You might think that if a sequence of words that increases a person’s time in prison is unconstitutionally vague in one legally binding provision, that same sequence is unconstitutionally vague if it serves the same purpose in another legally binding provision. Indeed, after Johnson, the Sentencing Commission deleted the residual clause from the Guidelines. See USSG § 4B1.2(a)(2) (Nov. 2016). But for petitioners like Brown, who were sentenced long before Johnson, this Court has thus far left the validity of their sentences an open question.“); see Hicks, 911 F.3d at 626 (“[T]he Supreme Court [in Beckles] left open the question of whether similar language in a mandatory Sentencing Guidelines provision—that is, a Sentencing Guidelines provision that was applied prior to Booker—would be unconstitutionally vague.“).25 And, as previously noted, the majority of
But those courts or judges who have reached the issue have usually concluded that invalidation is compelled by the Supreme Court’s decision in Johnson. See Cross, 892 F.3d at 299 (“Under Johnson, the [G]uidelines residual clause is unconstitutionally vague insofar as it determined mandatory sentencing ranges for pre-Booker defendants.“); Hammond, 351 F. Supp. 3d at 129 (”Johnson’s rule—the right not to have a sentence fixed by an indeterminate and wide-ranging residual clause—provides the answer to this case.“); United States v. Moore, No. 1:00-cr-10247, 2018 WL 5982017, at *2 (D. Mass. Nov. 14, 2018) (“this Court holds the pre-Booker career offender [G]uideline void for vagueness.“); United States v. Roy, 282 F. Supp. 3d 421, 425-27 (D. Mass. 2017) (same); Reid v. United States, 252 F. Supp. 3d 63, 64 66-68 (D. Mass. 2017) (”Beckles itself makes clear that its holding does not govern sentences imposed under the non-advisory, pre-Booker sentencing regime, and . . . the logic of the Johnson decisions makes them fully applicable in a pre-Booker, mandatory Guidelines context.“); Brown, 868 F.3d at 304 (Gregory, C.J., dissenting) (“I would further find that Johnson compels the conclusion that the residual clause under the mandatory Guidelines is unconstitutionally vague, and I would grant [the defendant’s] petition and remand for resentencing.“).26
This Court agrees that the Supreme Court’s decision in Johnson compels the conclusion that the residual clause in § 4B1.2 of the mandatory [S]entencing [G]uidelines is void for vagueness. First, the “materially identical” residual clause in the mandatory Guidelines suffers
As the government has conceded that defendant’s prior convictions are not “crimes of violence” absent the residual clause, defendant should not have been sentenced as a career offender. Accordingly, defendant’s motion to vacate the sentence for his Hobbs Act robbery conviction will be granted so that he can be resentenced without application of the career offender designation.
CONCLUSION
For the foregoing reasons, defendant’s motion and supplemental motion to vacate are granted in part and denied in part. The motion to vacate the
ELLEN S. HUVELLE
United States District Judge
Date: October 29, 2019
Notes
Section 4B1.1(a) provides that:
[a] defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
U.S.S.G. § 4B1.1(a).
Justice Sotomayor explained that she thought the Court‘s holding was “deeply unsound” because:
The Guidelines anchor every sentenсe imposed in federal district courts. They are, in a real sense[,] the basis for the sentence. The Due Process Clause requires that rules this weighty be drafted with sufficient definiteness that ordinary people can understand” them, and in a manner that does not encourage arbitrary and discriminatory enforcement.
Beckles, 137 S. Ct. at 898 (Sotomayor, J.) (internal quotations and citations omitted).
A “crime of violence” is defined in
(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 Court explained:
To begin where Johnson did, § 16(b) also calls for a court to identify a crime‘s “ordinary case” in order to measure the crime‘s risk. . . .
And § 16(b) also possesses the second fatal feature of ACCA‘s residual clause: uncertainty about the level of risk that makes a crime “violent.” . . .
In sum, § 16(b) has the same “[t]wo features” that “conspire[d] to make [ACCA‘s residual clause] unconstitutionally vague.” It too “requires a court to picture the kind of conduct that the crime involves in ‘the ordinary case,’ and to judge whether that abstraction presents” some not-well-specified-yet-sufficiently-large degree of risk. The result is that § 16(b) produces, just as ACCA‘s residual clause did, “more unpredictability and arbitrariness than the Due Process Clause tolerates.”
Dimaya, 138 S. Ct. at 1215-16 (quoting Johnson, 135 S. Ct. at 2556-58) (internal citations omitted).