UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
John LiCausi
v. Civil No. 16-cv-279-JD Opinion No. 2018 DNH 172 United States of America
O R D E R
In May of 1997, John LiCausi was convicted on sixteen
counts, which charged, among other things, use of a firearm
during a crime of violence in violation of 18 U.S.C. § 924(c).
He was sentenced to 1,042 months in prison, which included
enhanced sentences as a career offender. LiCausi seeks relief
from his sentence, pursuant to 28 U.S.C. § 2255, on the grounds
that he is not a career offender based on United States v.
Johnson, 135 S. Ct. 2551 (2015), and that his four convictions
under § 924(c) must be vacated and dismissed based on Johnson
and Sessions v. Dimaya, 138 S. Ct. 1204 (2018).
In response, the government agrees that LiCausi is not a
career offender and that his sentence based on career offender
status should be adjusted accordingly. The government also
agrees that § 924(c)(3)(A) requires a categorial approach and
does not argue that LiCausi’s conviction may be upheld under § 924(c)(3)(A).1 Instead, the government focuses on § 924(c)(3)(B)
and argues that LiCausi’s four convictions under § 924(c) are
valid, despite Dimaya, because § 924(c)(3)(B) can be interpreted
not to require the “categorical approach” and instead can be
applied based on a defendant’s actual conduct.2
Discussion
As the issues in the case have been addressed and narrowed,
a single legal question remains: whether § 924(c)(3)(B) is
unconstitutional under the analyses and holdings in Johnson and
Dimaya. If so, LiCausi’s four convictions under § 924(c)(3)
must be vacated. If not, there may be other questions to
resolve with respect to the validity of LiCausi’s convictions.
Section 924(c) provides penalties for crimes of violence
and drug trafficking. Section 924(c)(3)(B) defines “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
1 LiCausiargued at length that he could not be convicted under the force clause, § 924(c)(3)(A), because his Hobbs Act offenses were not crimes of violence. Doc. No. 10 at 18 to 24. The government does not dispute that argument.
2 Thegovernment acknowledges, however, that the case was tried and the jury was charged under the categorical approach but contends that the instructional error is a different claim than the one LiCausi raises here.
2 committing the offense.” Until recently, courts have upheld the
constitutionality of § 924(c)(3)(B), despite the holding in
Johnson. See United States v. Rossetti, 2018 WL 3748161, at *2
(D. Mass. Aug. 7, 2018); O’Halloran v. United States, 2018 WL
3653166, at *2 (D.N.H. July 31, 2018).
In April of this year, the Supreme Court decided that 18
U.S.C. § 16(b), which defines “crime of violence” for purposes
of the Immigration and Nationality Act, was unconstitutionally
vague under a “straightforward application” of Johnson. Dimaya,
138 S. Ct. at 1213-16. The Court applied the rule established
in Johnson that a statute is unconstitutionally vague if it both
requires a judicial assessment of the risk based on an ordinary
case, the categorical approach, and the level of risk necessary
to be a violent felony was not clear. Id. at 1214. The Court
concluded that a categorical approach was required to apply the
definition of a crime of violence in § 16(b) and that the
statute left uncertainty as to the “threshold level of risk.”.3
3 Thecategorial approach for determining whether a crime qualifies as a crime of violence requires the court to “compare the statutory elements of the crime,” without considering the specific facts or conduct involved in committing the crime, with the statute’s “definition of the type of crime that may serve as a predicate offense.” United States v. Fields, 823 F.3d 20, 33 (1st Cir. 2016) (internal quotation marks omitted); see also Dimaya, 138 S. Ct. at 1211 (categorical approach “turns on the ‘nature of the offense’ generally speaking” and “requires a court to ask whether the ordinary case of an offense poses the requisite risk”) (internal quotation marks omitted).
3 Id. Other courts have subsequently concluded that the analysis
in Dimaya applies to § 924(c)(3)(B), rendering that statute
unconstitutionally vague.4 See United States v. Eshetu, --- F.3d
---, 2018 WL 3673907, at *1-*2 (D.C. Cir. Aug. 3, 2018); United
States v. Salas, 889 F.3d 681, 686 (10th Cir. 2018); United
States v. Tinh Huy Nguyen, 2018 WL 3972271, at *9-*16 (N.D. Cal.
Aug. 20, 2018); Rosetti, 2018 WL 3748161, at *3.
The government acknowledges the effect of Dimaya but argues
that to avoid an unnecessary constitutional issue, §
924(c)(3)(B) can be interpreted not to require a categorical
approach and instead to allow a specific conduct approach for
determining whether a charged crime is a crime of violence. The
same argument has been presented in other courts with very
limited success.5 Compare, e.g., Eshetu, 2018 WL 3673907, at *2;
Rosetti, 2018 WL 3748161, at *3; and Tinh Huy Nguyen, 2018 WL
4 Beforethe Dimaya decision, the First Circuit noted that the validity of § 924(c)(3)(B) was unsettled in the circuits and did not decide the question. United States v. Ponzo, 853 F.3d 558, 585 (1st Cir. 2017). To date, the First Circuit has not addressed the impact of Dimaya on the application of § 924(c)(3)(B).
5TheFirst Circuit has not decided whether the categorial approach is required in applying § 924(c)(3)(B). In prosecuting cases under § 924(c)(3)(B), the government has previously advocated that the categorical approach was required, and the district courts also have assumed that to be true. See Rosetti, 2018 WL 3748161, at *2.
4 3972271, at *10; with Royer v. United States, --- F. Supp. 3d
---, 2018 WL 3676905, at *14 (E.D. Va. Aug. 2, 2018).
In Dimaya, the Court stated that § 16(b) “calls for a court
to identify a crime’s ‘ordinary case’ in order to measure the
crime’s risk.” 138 S. Ct. at 1215. The Court noted that “[t]he
Government explicitly acknowledges that point here.” Id.
While Justice Thomas advocated in his dissent that § 16(b) could
be construed not to require a categorical approach, that
position was rejected by a plurality of the Court. Id. at 2017.
Specifically, the Court stated that § 16(b) “demands a
categorical approach.” Id. at 1217; accord Eshetu, 2018 WL
3673907, at *2.
The government urges this court to avoid a constitutional
issue by interpreting § 924(c)(B)(3) to allow a conduct specific
approach for deciding whether a charged offense is a crime of
violence. Courts are required to construe statutes to avoid
constitutional issues “where an alternative interpretation of
the statute is ‘fairly possible.’” INS v. St. Cyr, 533 U.S.
289, 300 (2001). In Dimaya, the Supreme Court noted that
allowing a conduct specific approach would not avoid a
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
John LiCausi
v. Civil No. 16-cv-279-JD Opinion No. 2018 DNH 172 United States of America
O R D E R
In May of 1997, John LiCausi was convicted on sixteen
counts, which charged, among other things, use of a firearm
during a crime of violence in violation of 18 U.S.C. § 924(c).
He was sentenced to 1,042 months in prison, which included
enhanced sentences as a career offender. LiCausi seeks relief
from his sentence, pursuant to 28 U.S.C. § 2255, on the grounds
that he is not a career offender based on United States v.
Johnson, 135 S. Ct. 2551 (2015), and that his four convictions
under § 924(c) must be vacated and dismissed based on Johnson
and Sessions v. Dimaya, 138 S. Ct. 1204 (2018).
In response, the government agrees that LiCausi is not a
career offender and that his sentence based on career offender
status should be adjusted accordingly. The government also
agrees that § 924(c)(3)(A) requires a categorial approach and
does not argue that LiCausi’s conviction may be upheld under § 924(c)(3)(A).1 Instead, the government focuses on § 924(c)(3)(B)
and argues that LiCausi’s four convictions under § 924(c) are
valid, despite Dimaya, because § 924(c)(3)(B) can be interpreted
not to require the “categorical approach” and instead can be
applied based on a defendant’s actual conduct.2
Discussion
As the issues in the case have been addressed and narrowed,
a single legal question remains: whether § 924(c)(3)(B) is
unconstitutional under the analyses and holdings in Johnson and
Dimaya. If so, LiCausi’s four convictions under § 924(c)(3)
must be vacated. If not, there may be other questions to
resolve with respect to the validity of LiCausi’s convictions.
Section 924(c) provides penalties for crimes of violence
and drug trafficking. Section 924(c)(3)(B) defines “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
1 LiCausiargued at length that he could not be convicted under the force clause, § 924(c)(3)(A), because his Hobbs Act offenses were not crimes of violence. Doc. No. 10 at 18 to 24. The government does not dispute that argument.
2 Thegovernment acknowledges, however, that the case was tried and the jury was charged under the categorical approach but contends that the instructional error is a different claim than the one LiCausi raises here.
2 committing the offense.” Until recently, courts have upheld the
constitutionality of § 924(c)(3)(B), despite the holding in
Johnson. See United States v. Rossetti, 2018 WL 3748161, at *2
(D. Mass. Aug. 7, 2018); O’Halloran v. United States, 2018 WL
3653166, at *2 (D.N.H. July 31, 2018).
In April of this year, the Supreme Court decided that 18
U.S.C. § 16(b), which defines “crime of violence” for purposes
of the Immigration and Nationality Act, was unconstitutionally
vague under a “straightforward application” of Johnson. Dimaya,
138 S. Ct. at 1213-16. The Court applied the rule established
in Johnson that a statute is unconstitutionally vague if it both
requires a judicial assessment of the risk based on an ordinary
case, the categorical approach, and the level of risk necessary
to be a violent felony was not clear. Id. at 1214. The Court
concluded that a categorical approach was required to apply the
definition of a crime of violence in § 16(b) and that the
statute left uncertainty as to the “threshold level of risk.”.3
3 Thecategorial approach for determining whether a crime qualifies as a crime of violence requires the court to “compare the statutory elements of the crime,” without considering the specific facts or conduct involved in committing the crime, with the statute’s “definition of the type of crime that may serve as a predicate offense.” United States v. Fields, 823 F.3d 20, 33 (1st Cir. 2016) (internal quotation marks omitted); see also Dimaya, 138 S. Ct. at 1211 (categorical approach “turns on the ‘nature of the offense’ generally speaking” and “requires a court to ask whether the ordinary case of an offense poses the requisite risk”) (internal quotation marks omitted).
3 Id. Other courts have subsequently concluded that the analysis
in Dimaya applies to § 924(c)(3)(B), rendering that statute
unconstitutionally vague.4 See United States v. Eshetu, --- F.3d
---, 2018 WL 3673907, at *1-*2 (D.C. Cir. Aug. 3, 2018); United
States v. Salas, 889 F.3d 681, 686 (10th Cir. 2018); United
States v. Tinh Huy Nguyen, 2018 WL 3972271, at *9-*16 (N.D. Cal.
Aug. 20, 2018); Rosetti, 2018 WL 3748161, at *3.
The government acknowledges the effect of Dimaya but argues
that to avoid an unnecessary constitutional issue, §
924(c)(3)(B) can be interpreted not to require a categorical
approach and instead to allow a specific conduct approach for
determining whether a charged crime is a crime of violence. The
same argument has been presented in other courts with very
limited success.5 Compare, e.g., Eshetu, 2018 WL 3673907, at *2;
Rosetti, 2018 WL 3748161, at *3; and Tinh Huy Nguyen, 2018 WL
4 Beforethe Dimaya decision, the First Circuit noted that the validity of § 924(c)(3)(B) was unsettled in the circuits and did not decide the question. United States v. Ponzo, 853 F.3d 558, 585 (1st Cir. 2017). To date, the First Circuit has not addressed the impact of Dimaya on the application of § 924(c)(3)(B).
5TheFirst Circuit has not decided whether the categorial approach is required in applying § 924(c)(3)(B). In prosecuting cases under § 924(c)(3)(B), the government has previously advocated that the categorical approach was required, and the district courts also have assumed that to be true. See Rosetti, 2018 WL 3748161, at *2.
4 3972271, at *10; with Royer v. United States, --- F. Supp. 3d
---, 2018 WL 3676905, at *14 (E.D. Va. Aug. 2, 2018).
In Dimaya, the Court stated that § 16(b) “calls for a court
to identify a crime’s ‘ordinary case’ in order to measure the
crime’s risk.” 138 S. Ct. at 1215. The Court noted that “[t]he
Government explicitly acknowledges that point here.” Id.
While Justice Thomas advocated in his dissent that § 16(b) could
be construed not to require a categorical approach, that
position was rejected by a plurality of the Court. Id. at 2017.
Specifically, the Court stated that § 16(b) “demands a
categorical approach.” Id. at 1217; accord Eshetu, 2018 WL
3673907, at *2.
The government urges this court to avoid a constitutional
issue by interpreting § 924(c)(B)(3) to allow a conduct specific
approach for deciding whether a charged offense is a crime of
violence. Courts are required to construe statutes to avoid
constitutional issues “where an alternative interpretation of
the statute is ‘fairly possible.’” INS v. St. Cyr, 533 U.S.
289, 300 (2001). In Dimaya, the Supreme Court noted that
allowing a conduct specific approach would not avoid a
constitutional issue for purposes of § 16(b) but instead would
present different Sixth Amendment problems. 138 S. Ct. at 1217-
18. Even if the Sixth Amendment issues would not apply in the
5 context of § 924(c)(3)(B), see Royer, 2018 WL 3676905, at *14,
so that the constitutional avoidance canon would apply, the
court concludes that an alternative interpretation of §
924(c)(3)(B), to allow a conduct specific approach, is not
fairly possible.
The wording of § 16(b) and § 924(c)(3)(B) is “materially
identical.”6 Eshetu, 2018 WL 3673907, at *1; United States v.
Williams, 897 F.3d 660, 661 (5th Cir. 2018); Salas, 889 F.3d at
686; Tinh Huy Nguyen, 2018 WL 3972271 at *9; Rossetti, 2018 WL
3748161, at *2; United States v. Pomerleau, 2016 WL 6471202, at
*2 (D. Me. Nov. 1, 2016). As is noted above, the Supreme Court
concluded, albeit arguably in dicta, that § 16(b) demands the
categorical approach. While perhaps not binding, that
interpretation is highly persuasive.
The Eastern District of Virginia is the only court to have
found a fairly possible interpretation of § 924(c)(3)(B) that
6 “Theterm ‘crime of violence’ means--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.” 18 U.S.C. § 16.
“[T]the term ‘crime of violence’ means 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. § 924.
6 would allow the specific conduct approach. Royer, 2018 WL
3676905, at *13-*14. The analysis in that case focuses on
whether “offense” may refer to the specific conduct of the
charged crime while minimizing the effect of the phrase “by its
nature.” Id. The court also emphasizes the lack of Sixth
Amendment concerns, citing Justice Thomas’s dissent in Dimaya.
Id.
That interpretation, however, is contrary to the
interpretation of § 16(b) in Dimaya and the great weight of
authority interpreting § 924(c)(3)(B). Rossetti, 2018 WL
3748161, at *3. As such, Royer does not provide a persuasive
ground to interpret § 924(c)(3)(B) in a contrary manner.
Instead, “the best (and only plausible) reading of the Supreme
Court’s decision in Dimaya is one that requires application of
the categorical approach to § 924(c)’s residual clause [§
924(c)(3)(B)].” Rossetti, 2018 WL 3748161, at *3.
As a result, § 924(c)(3)(B) is unconstitutionally vague.
LiCausi’s four convictions under § 924(c) cannot stand. The
parties also agree that LiCausi is not a career offender and
that his sentence must be adjusted accordingly.
Conclusion
For the foregoing reasons, LiCausi’s amended habeas corpus
petition (document no. 10) is granted. The convictions on
7 Counts 12, 15, 19, and 22 are vacated and dismissed. The career
offender sentences on other counts are also vacated.
A hearing will be scheduled for resentencing.
SO ORDERED.
Joseph A. DiClerico, Jr. United States District Judge
August 23, 2018
cc: Seth R. Aframe, Esq. Bjorn R. Lange, Esq.