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LiCausi v. United States

United States District Court, D. New Hampshire

August 23, 2018

John LiCausi
v.
United States of America

          Seth R. Aframe, Esq. Bjorn R. Lange, Esq.

          ORDER

          Joseph A. DiClerico, Jr. United States District Judge.

         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 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] 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 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 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 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 ...


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