Chief Judge Gloria Navarro Will Decide

Magistrate Judge Peggy A. Leen has recommended that the District of Nevada DENY motions from Pete Santilli and Ryan Payne to dismiss counts 3, 6, 9, and 15 (“Use and Carry of a Firearm During a Crime of Violence”) who aregued that portions of 18 USC 924(c) are “void for vagueness” similar to recent rulings on similarly worded and applied statutes. The US Supreme Court (SCOTUS) recently ruled in Johnson v. United States, 135 S.Ct. 2551 (2015) that portions of the Armed Career Criminal Act (ACCA) were unconstitutionally vague. That ruling was the basis for a split decision in the 9th Circuit in Dimaya vs Lynch where decisions on the process for determining if a felony was “violent” were determined to be unconstitutionally vague as well. Dimaya was decided in the context of immigration, but the language of the statute and applicability is nearly identical to the standard usage of 18 USC 924(c). Leen issued a recommendation that the motions be denied, leaving the ultimate decision to Navarro.

The Government Doubled Down On Its Position

The US Attorneys argued on behalf of the government that Johnson and Dimaya provided no direct legal implications on the standard applicability of 924(c). Despite lengthy, compelling arguments from public defenders, they argued that circuit courts were split on the Dimaya issue and that other district court rulings should not impact current practice as it relates to applying the clause in question. The 924(c) charges, which allege that a predicate offense constitutes a crime of violence, in this case, because the defendants were lawfully armed, all but guarantees an effective life sentence upon conviction.

“Justice” Isn’t A Factor

It is clear that the US Attorneys intend to pursue a grossly egregious penalty that far outweighs appropriate punishment for the ~alleged~ crimes. Judges in the 9th Circuit have ruled that Dimaya would, in fact, be binding precedent IF this were a case involving 18 USC 16(b) – (which is identical in wording to 924(c)) – and the charges would then have to be weighed in a purely Taylor categorical approach (which would cause most, if not all of them, to fall off). If Dimaya isn’t binding, then the District of Nevada has the ability to decide if these charges should stand for trial. Leen has postured the court toward a degree of rigidity that outright denies the merits of the arguments of public defenders. She states on page 25 of her ruling:

A number of well-reasoned district court decisions in this circuit have held that Johnson II and Dimaya compel the conclusion that the residual clause of § 924(c)(3)(B) is constitutionally vague.

She also points out that the circuit courts are split and that the 9th Circuit hasn’t ruled outside of an immigration context. On page 26:

The court will take the Ninth Circuit at its word and will avoid deciding the constitutionality of § 924(c)(3)(B)’s residual clause in a pretrial motion to dismiss based on the well settled principle of constitutional avoidance.

Rather than examine the possibility that the Government has unleashed an avalanche of excessive litigation by levying “enhancement” statutes, Leen is recommending that the court avoid the issue altogether, even though she admits that other districts in the circuit have not.

This equates to a pursuit of vengeance rather than a quest for justice. This is our judiciary, the legal puppet of an out-of-control government drunk on its relentless blood lust for the acquisition of rural western land.

Someone Is Wrong…

Leen’s insistence that Dimaya is not applicable in the case before the Court stands in direct contradiction to numerous other rulings in the 9th Circuit.

• Northern District of California, District Judge Edward Chen: United
  States v. Baires-Reyes June 2016

Applying the reasoning of Dimaya, the Court finds that Section 924(c)’s residual clause is unconstitutionally vague. Although Dimaya concerned Section 16(b), Section 16(b)’s residual clause contains the same exact language as Section 924(c)’s residual clause, and Dimaya’s analysis of whether Section 16(b)’s residual clause is unconstitutionally vague under Johnson is equally applicable to Section 924(c)’s residual clause. Like the ACCA, Section 942(c) requires the application of a categorical approach, which requires the Court to determine what an “ordinary case” of the crime involves without providing any “reliable way to choose between these competing accounts of what a crime looks like in the ordinary case.”

• Eastern District of California, District Judge William Shubb: United
  States v. Lattanaphom Feb 2016

The only binding authority in the Ninth Circuit compels this court to find § 924(c) void for vagueness. The Dimaya court extended Johnson to a statute with identical language as that in the § 924(c) residual clause and cannot be distinguished.

•  Northern District California, District Judge William Orrick: United States v. Bell Jan 2016

While the Ninth Circuit made clear that this holding (Dimaya) does not extend beyond the scope of the facts before it, that does not mean that the reasoning from the decision cannot be applied elsewhere. Here, as in Dimaya, the “minor distinctions between the text of the [ACCA residual clause] and that of the [section 924(c)(3) residual clause]” fail to “undermine the applicability of [Johnson II’s] fundamental holding to this case.”

• District of Oregon, District Judge Anna Brown: United States v. Bundy June 2016

Unlike the Sixth Circuit in Taylor, this Court is not empowered to decline to follow Dimaya. As the Taylor court noted, “§ 16 (b) appears identical to § 924 (c) (3) (B) in all material respects.” Id. Accordingly, because the Court is bound by Dimaya, the Court must conclude§ 924(c) (3) (B) is void for vagueness. As a result, the Court cannot rely on the residual
clause in § 924 (c) (3) (B) to conclude that § 372 is a crime of violence.

• Eastern District of California, Chief Judge Lawrence O’Neill: United States v. Rubio Nov 2016

Nevertheless, because Dimaya is binding upon this Court, and the language Dimaya held to be unconstitutionally vague is exactly the same as what is contained in the § 924(c)(3) residual clause, the Court finds it cannot escape the conclusion that the § 924(c)(3) residual clause is unconstitutionally vague.

• Eastern District Washington, District Judge WM Nielsen: United States v. Sutton Apr 2016

The residual clause of § 924(c) defines a crime of violence as a felony “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 Ninth Circuit examined an identical residual clause found in the immigration code and deter-mined that it “requires courts to inquire whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a substantial risk of force” just as prohibited by Johnson. Accordingly, the Ninth Circuit invalidated the unconstitutionally vague definition of crime of violence “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. § 16(b). Thus, despite the several differences the Government notes between § 924(e) and § 924(c), there is an extremely high likelihood, perhaps even a certainty, that the Ninth Circuit will eventually determine that § 924(c)(3) is unconstitutionally vague.

• District of Nevada, District Judge Jennifer Dorsey May 2016

I find no basis to distinguish 18 U.S.C. § 16(b) from § 924(c)’s residual clause or Dimaya from this case. Though many districts outside of the Ninth Circuit have declined to extend Johnson to § 924(c)’s residual clause, none of those courts are bound by the Ninth Circuit’s decision in Dimaya invalidating the INA’s identically worded residual provision. The binding authority in this circuit thus compels me to conclude that 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague. I therefore grant defendants’ motion in part and dismiss count two of the indictment because it can only be based on § 924(c)’s residual clause, which I find void for vagueness.