After Recent Supreme Court Ruling, Crime of Violence Definition Too Vague in Immigration Law

The definition of “crime of violence”  in the Immigration and Nationality Act is deemed to be unconstitutional because it is too broad and leaves it up to interpretation by a court

Golicov v. Lynch, 2016 BL 307286, 10th Cir., No. 16-9530, 9/19/16.

The Tenth Circuit joined a circuit split in holding that “crime of violence” is unconstitutionally too broad in the Immigration and Nationality Act (INA). The court relied on reasoning supplied by the Supreme Court in its decision of Johnson v. United States, where it held that “violent felony” was too vague under the Armed Career Criminal Act. Under the INA, an immigrant may be removed if convicted of an aggravated felony, also described as a “crime of violence.” The act’s definition for “crime of violence” is a felony that “involves a substantial risk that physical force against the person or property or another may be used in the course of committing the offense.” The court found that this definition is similar to the provision invalidated by the Supreme Court because it required a judicial official to estimate the risk posed by a crime, leaving uncertainty about how much risk it takes for a crime to qualify as a violent felony.

In this decision, the Tenth Circuit joins the Sixth, Seventh, and Ninth Circuits that “crime of violence” is too vague. The government has filed a petition for certiorari in the Ninth Circuit case.

https://www.bloomberglaw.com/public/desktop/document/Golicov_v_Lynch_No_169530_2016_BL_303072_10th_Cir_Sept_19_2016_Co?1475772138

nder New York Law, Robbery Not Necessarily “Crime of Violence” for Career Criminal Enhancements

After reviewing the New York statute on first-degree robbery, a federal circuit court held that language in the statute prevents it from being an inherent “crime of violence” for federal sentencing guidelines

United States v. Jones, 2016 BL 233942, 2d Cir., No. 15-1518-cr, 7/21/16.

The Second Circuit held that robbery is not necessarily a “crime of violence” for purpose of the career-offender enhancement under federal sentencing guidelines. While the facts of the actual robbery were not considered by the court, it examined what constituted a robbery under the New York statute, concluding that a person can commit robbery without taking any “violent” actions. Some actions, such as possessing a weapon without ever brandishing it during the crime, were especially significant to the court in making this decision.

The Second Circuit relied on the U.S. Supreme Court decision, United States v. Jones, where the court held that a violent felony under the Armed Career Criminal Act requires an element of “violent force.” The court looking at the New York statute and found that “a robber's possession of a concealed and unmentioned weapon while he commits a robbery can support a first-degree robbery conviction under [New York law] but such possession cannot turn what is otherwise less-than-violent force into violent force.”

As of August 1, the U.S. Sentencing Commission’s will release a new set of sentencing guidelines regarding what constitutes a "crime of violence."

http://www.bloomberglaw.com/public/document/United_States_v_Jones_No_151518cr_2016_BL_233942_2d_Cir_July_21_2.

Vague Law Prevents Removal of Albanian Immigrant that Committed Robbery

A provision under the Immigration and Nationality Act is void because of vagueness, preventing removal of an immigrant that committed a non-armed robbery

Shuti v. Lynch, 2016 BL 217913, 6th Cir., No. 15-3835, 7/7/16.

   The Sixth Circuit joined the Seventh and Ninth Circuits in voiding a provision from the Immigration and Nationality Act (INA) for being too vague using precedent from Johnson v. United States. Under Johnson, the Supreme Court held that “violent felony” was unconstitutionally vague in the Armed Criminal Career Act (ACCA). In making this decision, the court ruled that the precedent set in Johnson could be “mixed and matched” with other statutes, making it applicable to other acts with similar language. The court held that the definition of “crime of violence” shares a resemblance to the ACCA’s “violent felony” definition, which was eventually invalidated. The order was vacated ad the case was remanded.

https://www.bloomberglaw.com/public/desktop/document/Shuti_v_Lynch_No_153835_2016_BL_217913_6th_Cir_July_07_2016_Court?1469141588

Broad Definition of "Violent Felony" Deemed Unconstitutional

The definition of "violent felony" in the Armed Career Criminal Act is unconstitutionally vague.

Johnson v. United States, 2015 BL 204915, U.S., No. 13-7120

 

     The Supreme Court looked to the history of "repeated failure[s] to craft a principled standard out of" the definition of "violent felony" in the ACCA. The Court indicated that "nine years' experience trying to derive meaning from the residual clause convinces  us that we have embarked upon a failed enterprise."

 

     The wording of the Act was vague and the Court said that "invoking so shapeless a provision to condemn someone to prison for 15 years to life does not comport with the Constitution's guarantee of due process."

 

     In this case, the defendant was convicted for being a felon in possession of a firearm. This conviction was enhanced inder the ACCA. He argued, as many others before, that his particular state offense did not qualify as a "violent felony."

 

     The old standard was a categorical approach, given in Taylor v. United States, 495 U.S. 575 (1990), and required sentencing courts to assess the crime "in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion."

 

    Justice Scalia, writing for the court, said that "the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges." Thus, increasing a defendant's sentence under the definition of "violent felony" given in the ACAA denies due process of the law.

 

    The lack of guidance within the clause was integral to the Court's decision. It fails to indicate how to estimate the risk posed by a crime, and how much risk it takes for a crime to qualify as a violent felony.

 

    This decision is a major change in the law that affects a large number of defendents who have been sentenced for firearms offenses.