United States District Court, D. New Hampshire
R. Aframe, Esq. Bjorn R. Lange, Esq.
A. DiClerico, Jr. United States District Judge.
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.
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). 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
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
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).
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.”. Id.
Other courts have subsequently concluded that the analysis in
Dimaya applies to § 924(c)(3)(B), rendering that statute
unconstitutionally vague. 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.
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. 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).
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.
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.
wording of § 16(b) and § 924(c)(3)(B) is
“materially identical.” 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.
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.
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 ...