United States v. Salas , 889 F.3d 681 ( 2018 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS May 4, 2018
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-2170
CLIFFORD RAYMOND SALAS,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 2:12-CR-03183-RB-3)
_________________________________
Howard Pincus, Assistant Federal Public Defender (and Virginia L. Grady, Federal
Public Defender, with him on the briefs), Denver, Colorado, for Defendant-Appellant.
Aaron Jordan, Assistant United States Attorney (and James D. Tierney, Acting United
States Attorney, with him on the brief), Las Cruces, New Mexico, for Plaintiff-Appellee.
_________________________________
Before HOLMES, KELLY, and BACHARACH, Circuit Judges.
_________________________________
KELLY, Circuit Judge.
_________________________________
Defendant-Appellant Clifford Raymond Salas was found guilty of various
arson-related offenses, and he now appeals from his conviction and sentence under
18 U.S.C. § 924(c)(1) for using a destructive device in furtherance of a crime of
violence. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and
we remand to the district court with instructions to vacate Mr. Salas’s § 924(c)(1)
conviction and resentence him because § 924(c)(3)(B), the provision defining a
“crime of violence” for the purposes of his conviction, is unconstitutionally vague.
Background
After using a Molotov cocktail to firebomb a tattoo parlor, Mr. Salas was
convicted under 18 U.S.C. § 844(n) for conspiracy to commit arson (count 1), 18
U.S.C. §§ 2 and 844(i) for aiding and abetting the commission of arson (count 2), and
18 U.S.C. § 842(i) for being a felon in possession of an explosive (count 4). 1 Rawle 5–
7, 82–83. He was also convicted under 18 U.S.C. § 924(c)(1) for using a destructive
device in furtherance of a crime of violence (count 3) — the “destructive device”
being a Molotov cocktail,1 and the “crime of violence” being arson. Id. For his
offenses, Mr. Salas was sentenced to a total of 35 years’ imprisonment: 5 years for
counts 1, 2, and 4 and, pursuant to § 924(c)(1)(B)(ii)’s mandatory minimum sentence,
30 years for count 3. Id. at 84; 5 Rawle 13–14. He was also sentenced to 3 years’
supervised release. 1 Rawle 85.
Section 924(c)(3) defines the term “crime of violence” as either a felony that
“has as an element the use, attempted use, or threatened use of physical force against
the person or property of another” or a felony “that by its nature, involves a
substantial risk that physical force against the person or property of another may be
1
A Molotov cocktail qualifies as a “destructive device” for the purposes of
§ 924(c)(1)(B)(ii) and as an “explosive” for the purposes of § 844(i). E.g., United
States v. Gillespie, 452 F.3d 1183, 1185 (10th Cir. 2006).
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used in the course of committing the offense.” Both parties agree that the first
definition, known as the “elements clause,” does not apply here because § 844(i)
arson does not require, as an element, the use of force against the property “of
another”; for example, § 844(i) may apply to a person who destroys his or her own
property. See 18 U.S.C. § 844(i) (2012) (prohibiting damaging or destroying “any
building, vehicle, or other real or personal property” used or affecting interstate or
foreign commerce (emphasis added)); see also Torres v. Lynch, 136 S. Ct. 1619,
1629–30 (2016) (noting that a similar “crime of violence” provision would not apply
to definitions of arson that include the destruction of one’s own property).
Consequently, Mr. Salas could have been convicted only under the second definition,
known as § 924(c)(3)’s “residual clause.”
At trial, Mr. Salas did not argue that § 844(i) arson does not satisfy
§ 924(c)(3)’s crime-of-violence definition, and he did not object when the district
court determined that arson is a crime of violence and instructed the jury to that
effect. On appeal, Mr. Salas argues that § 924(c)(3)’s residual clause is
unconstitutionally vague.
Discussion
Because Mr. Salas raises this issue for the first time on appeal, we review for
plain error. See United States v. Avery, 295 F.3d 1158, 1181–82 (10th Cir. 2002).
“Plain error occurs when there is (1) error, (2) that is plain, which (3) affects
substantial rights, and which (4) seriously affects the fairness, integrity, or public
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reputation of judicial proceedings.” United States v. Price, 265 F.3d 1097, 1107
(10th Cir. 2001). “However, we apply this rule less rigidly when reviewing a
potential constitutional error.” United States v. James, 257 F.3d 1173, 1182 (10th
Cir. 2001); accord United States v. Benford, 875 F.3d 1007, 1016 (10th Cir. 2017).
The government concedes that if Mr. Salas can prove the first two elements, the third
and fourth would be satisfied, too. Aplee. Br. at 12 n.11. The issues, then, are
whether there was error — that is, whether § 924(c)(3)(B) is unconstitutionally vague
— and, if so, whether that error was plain.
A. Section 924(c)(3)(B) Is Unconstitutionally Vague
In Sessions v. Dimaya, No. 15-1498, 2018 WL 1800371 (U.S. Apr. 17, 2018),
the Supreme Court held that 18 U.S.C. § 16(b)’s definition of a “crime of violence” is
unconstitutionally vague in light of its reasoning in Johnson v. United States, 135 S.
Ct. 2551 (2015), which invalidated the similarly worded residual definition of a
“violent felony” in the Armed Career Criminal Act (ACCA). 2018 WL 1800371, at
*4; see also Golicov v. Lynch, 837 F.3d 1065, 1072 (10th Cir. 2016) (ruling that
§ 16(b) “must be deemed unconstitutionally vague in light of Johnson”). The
Dimaya Court explained that the same two features rendered the clauses
unconstitutionally vague: they “‘require[] a court to picture the kind of conduct that
the crime involves in “the ordinary case,” and to judge whether that abstraction
presents’ some not-well-specified-yet-sufficiently-large degree of risk.” Dimaya,
2018 WL 1800371, at *9 (quoting Johnson, 135 S. Ct. at 2557). The Court also
rejected several reasons for distinguishing § 16(b) from the ACCA, namely that
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§ 16(b) requires a risk that force be used in the course of committing the offense,
focuses on the use of physical force rather than physical injury, does not contain a
confusing list of enumerated crimes, and does not share the ACCA’s history of
interpretive failures. Id. at *12–16.
Mr. Salas argues that § 924(c)(3)(B)’s definition of a “crime of violence,”
which is identical to § 16(b)’s,2 is likewise unconstitutionally vague. Indeed, we
have previously noted the similarity between the two provisions and consequently
held that “cases interpreting [§ 16(b)] inform our analysis” when interpreting
§ 924(c)(3)(B). United States v. Serafin, 562 F.3d 1105, 1108 & n.4 (10th Cir.
2009). Other circuits interpret § 16(b) and § 924(c)(3)(B) similarly, as well. See In
re Hubbard, 825 F.3d 225, 230 n.3 (4th Cir. 2016) (“[T]he language of § 16(b) is
identical to that in § 924(c)(3)(B), and we have previously treated precedent
respecting one as controlling analysis of the other.”). In fact, the Seventh Circuit has
faced the same scenario that we face now: it ruled that § 16(b) was unconstitutionally
vague in United States v. Vivas-Ceja, 808 F.3d 719 (7th Cir. 2015), and then
addressed the constitutionality of § 924(c)(3)(B) in United States v. Cardena, 842
2
For the sake of comparison, § 16 provides:
The term “crime of violence” means . . . (b) 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.
And § 924(c)(3) provides:
For purposes of this subsection the term “crime of violence” means an offense
that is a felony and . . . (B) 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.
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F.3d 959 (7th Cir. 2016). In Cardena, the Seventh Circuit ruled that § 924(c)(3)’s
residual clause was “the same residual clause contained in [§ 16(b)]” and accordingly
held that “§ 924(c)(3)(B) is also unconstitutionally vague.” Cardena, 842 F.3d at
996.
In support of § 924(c)(3)(B)’s constitutionality, the government “submits that
§ 924(c)(3)(B) is distinguishable from the ACCA’s residual clause for the same
reasons it argued that § 16(b) was distinguishable.” Aplee. Br. at 7. That is,
§ 924(c)(3)(B) requires the risk that force be used in the course of committing the
offense, which the ACCA does not; § 924(c)(3)(B) focuses on the use of physical
force rather than physical injury; § 924(c)(3)(B) does not contain the confusing list of
enumerated crimes that the ACCA does; and, unlike the ACCA, § 924(c)(3)(B) does
not have a history of interpretive failures. Dimaya, however, explicitly rejected all of
these arguments. 2018 WL 1800371, at *12–16.
The only way the government distinguishes § 924(c)(3)(B) from § 16(b) is by
noting that, pursuant to § 924(c)(1)(A), the former requires a sufficient nexus to a
firearm, which narrows the class of offenses that could qualify as crimes of violence.
See Ovalles v. United States, 861 F.3d 1257, 1265–66 (11th Cir. 2017) (“The
required ‘nexus’ between the § 924(c) firearm offense and the predicate crime of
violence makes the crime of violence determination more precise and more
predictable.”). But this firearm requirement simply means that the statute will apply
in fewer instances, not that it is any less vague. The required nexus does not change
the fact that § 924(c)(3)(B) possesses the same two features that rendered the
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ACCA’s residual clause and § 16(b) unconstitutionally vague: “an ordinary-case
requirement and an ill-defined risk threshold,” Dimaya, 2018 WL 1800371, at *16.
Requiring a sufficient nexus to a firearm does not remedy those two flaws.
Other circuits have upheld § 924(c)(3)(B)’s constitutionality, but they were not
faced, as we are here, with binding authority holding § 16(b) unconstitutional. See
United States v. Garcia, 857 F.3d 708, 711 (5th Cir. 2017); United States v. Eshetu,
863 F.3d 946, 955 (D.C. Cir. 2017); Ovalles, 861 F.3d at 1265 (11th Cir.); United
States v. Prickett, 839 F.3d 697, 699 (8th Cir. 2016); United States v. Hill, 832 F.3d
135, 150 (2d Cir. 2016); United States v. Taylor, 814 F.3d 340, 379 (6th Cir. 2016).
For the most part, the grounds for their decisions apply equally to § 16(b) and mirror
the distinctions between the ACCA’s residual clause and § 16(b) that were rejected in
Dimaya.
Notably, only the Sixth Circuit has held that § 924(c)(3)(B) is constitutional
while § 16(b) is not. See Shuti v. Lynch, 828 F.3d 440, 446 (6th Cir. 2016) (ruling
that § 16(b) is unconstitutionally vague); Taylor, 814 F.3d at 375–76 (rejecting a
void-for-vagueness challenge to § 924(c)(3)(B)). The Sixth Circuit stated that the
provisions differed because, in contrast to § 16(b), “§ 924(c) is a criminal offense and
‘creation of risk is an element of the crime,’” which “requires an ultimate
determination of guilt beyond a reasonable doubt — by a jury, in the same
proceeding.” Shuti, 828 F.3d at 449 (quoting Johnson, 135 S. Ct. at 2557). It further
noted that courts evaluate this risk based on the defendant’s actual conduct. Id.
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This is a distinction without a difference, though, and is incorrect to the extent
it suggests that whether an offense is a crime of violence depends on the defendant’s
specific conduct. As an initial matter, a law can be unconstitutionally vague even if
it is a criminal offense that requires a determination of guilt beyond a reasonable
doubt. E.g., Papachristou v. City of Jacksonville, 405 U.S. 156, 171 (1972)
(invalidating a vagrancy ordinance). Additionally, “[w]hether a crime fits the
§ 924(c) definition of a ‘crime of violence’ is a question of law,” United States v.
Morgan, 748 F.3d 1024, 1034 (10th Cir. 2014), and we employ the categorical
approach to § 924(c)(3)(B), meaning we determine whether an offense is a crime of
violence “without inquiring into the specific conduct of this particular offender,”
Serafin, 562 F.3d at 1107–08 (quoting United States v. West, 550 F.3d 952, 957
(10th Cir. 2008)). Consequently, § 924(c)(3)(B), like § 16(b), “requires a court to
ask whether ‘the ordinary case’ of an offense poses the requisite risk.” Dimaya, 2018
WL 1800371, at *5 (quoting James v. United States, 550 U.S. 192, 208 (2007),
overruled on other grounds by Johnson, 135 S. Ct. 2551). Regardless of whether a
jury must find the defendant guilty of § 924(c) beyond a reasonable doubt, then, this
“ordinary-case requirement and an ill-defined risk threshold” combines “in the same
constitutionally problematic way” as § 16(b) and “necessarily ‘devolv[es] into
guesswork and intuition,’ invit[es] arbitrary enforcement, and fail[s] to provide fair
notice.” Id. at *7, *16 (quoting Johnson, 135 S. Ct. at 2559).
Ultimately, § 924(c)(3)(B) possesses the same features as the ACCA’s residual
clause and § 16(b) that combine to produce “more unpredictability and arbitrariness
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than the Due Process Clause tolerates,” Id. at *16 (quoting Johnson, 135 S. Ct. at
2558), and Dimaya’s reasoning for invalidating § 16(b) applies equally to
§ 924(c)(3)(B). Section 924(c)(3)(B) is likewise unconstitutionally vague.
B. Mr. Salas’s Conviction Constitutes Plain Error
Even though Mr. Salas’s conviction and sentence under 18 U.S.C. § 924(c)(1)
was erroneous because § 924(c)(3)(B) is unconstitutionally vague, we can grant him
relief only if the error was “plain” because Mr. Salas did not raise that argument at
the district court level. See United States v. Ruiz-Gea, 340 F.3d 1181, 1187 (10th
Cir. 2003). An error is plain if it is “clear or obvious at the time of the appeal.”
United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005); see also
Henderson v. United States, 568 U.S. 266, 276 (2013) (“[A]n appellate court must
apply the law in effect at the time it renders its decision.” (quoting Thorpe v. Hous.
Auth., 393 U.S. 268, 281 (1969))). In turn, “[a]n error is clear and obvious when it is
contrary to well-settled law.” United States v. Whitney, 229 F.3d 1296, 1309 (10th
Cir. 2000). “In general, for an error to be contrary to well-settled law, either the
Supreme Court or this court must have addressed the issue. The absence of such
precedent will not, however, prevent a finding of plain error if the district court’s
interpretation was ‘clearly erroneous.’” Ruiz-Gea, 340 F.3d at 1187 (citation
omitted). In the absence of Supreme Court or circuit precedent directly addressing a
particular issue, “a circuit split on that issue weighs against a finding of plain error.”
United States v. Wolfname, 835 F.3d 1214, 1221 (10th Cir. 2016). But disagreement
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among the circuits will not prevent a finding of plain error if the law is well settled in
the Tenth Circuit itself. See id. at 1221–22.
We have found plain error where a holding was “implicit” in a previous case
but have declined to find plain error where a previous case addressed the relevant
issue merely in dicta. Compare id. at 1218, with Whitney, 229 F.3d at 1309. Here,
although neither the Supreme Court nor this circuit has explicitly addressed the
constitutionality of § 924(c)(3)(B), both have directly ruled on the constitutionality of
identical language in § 16(b). See Dimaya, 2018 WL 1800371, at *4; Golicov, 837
F.3d at 1072. The identical wording of § 16(b) and § 924(c)(3)(B) means that the
provisions contain the same two features of the ACCA’s residual clause that
“conspire[d] to make it unconstitutionally vague.” Dimaya, 2018 WL 1800371, at
*16 (alteration in original) (quoting Johnson, 135 S. Ct. at 2557). Accordingly,
Dimaya compels the conclusion that § 924(c)(3)(B) is unconstitutional, too.
There is ostensibly a circuit split on the issue of § 924(c)(3)(B)’s
constitutionality, which ordinarily weighs against a finding of plain error. See
Wolfname, 835 F.3d at 1221. But Dimaya has since abrogated the reasoning of those
cases. Moreover, we do not view a circuit split as persuasive evidence that an error
was not plain if the other circuits were “writing on a clean slate,” while we have
relevant precedent to consider. Id. at 1221 n.3.
The government makes two additional points for why error, if found, would
not be plain. The first is that this circuit has repeatedly upheld § 924(c) convictions
that were based on § 844(i) predicates. All of those cases, though, were pre-Dimaya
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(and pre-Johnson, for that matter), and none of them addressed a void-for-vagueness
challenge. The second additional point is that the Eleventh Circuit found no plain
error regarding a challenge to § 924(c)(3)(B)’s constitutionality in United States v.
Langston, 662 F. App’x 787, 794 (11th Cir. 2016), cert. denied, 137 S. Ct. 1583
(2017). When that case was decided, however, neither the Supreme Court nor the
Eleventh Circuit had ruled that § 16(b) was unconstitutionally vague, which
distinguishes Langston from the current appeal.
In sum, the reasons why § 16(b) is unconstitutionally vague apply equally to
§ 924(c)(3)(B). Because they are identically worded, we interpret § 16(b) and
§ 924(c)(3)(B) similarly and apply caselaw interpreting the former to the latter.
Serafin, 562 F.3d at 1108 & n.4. Additionally, we apply the plain error rule “less
rigidly when reviewing a potential constitutional error.” James, 257 F.3d at 1182.
As a result, Mr. Salas’s conviction under § 924(c)(1) was clearly erroneous under
Supreme Court and Tenth Circuit precedent and constitutes plain error.
REMANDED for resentencing, with instructions to the district court to vacate
count 3 of Mr. Salas’s conviction.
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