United States v. Yonas Eshetu , 898 F.3d 36 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided August 3, 2018
No. 15-3020
UNITED STATES OF AMERICA,
APPELLEE
v.
YONAS ESHETU, ALSO KNOWN AS YONAS SEBSIBE,
APPELLANT
Consolidated with 15-3021, 15-3023
On Petition for Panel Rehearing in
Nos. 15-3021 and 15-3023
Before: HENDERSON, KAVANAUGH * and MILLETT, Circuit
Judges.
Opinion for the Court filed PER CURIAM.
PER CURIAM: A jury convicted defendants Pablo Lovo and
Joel Sorto of conspiring to interfere with interstate commerce
by robbery, 18 U.S.C. § 1951, and using, carrying or possessing
a firearm during a crime of violence, 18 U.S.C. § 924(c).
*
Judge Kavanaugh did not participate in this disposition.
2
Lovo and Sorto appealed their convictions. United States v.
Eshetu, 863 F.3d 946 (D.C. Cir. 2017). In the main, we
rejected their claims, id. at 951-58 & n.9, remanding only for
further consideration of two ineffective-assistance challenges,
id. at 957-58. As relevant here, we rejected their claim that
the “residual clause” “of the statutory crime-of-violence
definition that affects them—set forth in 18 U.S.C.
§ 924(c)(3)(B)—is unconstitutionally vague.” Id. at 952; see
id. at 952-56.
After we issued our decision, the United States Supreme
Court held that 18 U.S.C. § 16(b)—the “residual clause” of
section 16’s crime-of-violence definition—is
unconstitutionally vague. Sessions v. Dimaya, 138 S. Ct.
1204, 1210 (2018). With the support of the Federal Public
Defender as amicus curiae, Lovo and Sorto now seek
rehearing. 1 They argue that Dimaya dictates vacatur of their
section 924(c) convictions. We agree.
Under the residual clause that Dimaya struck down, “[t]he
term ‘crime of violence’ means” 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).
Under the residual clause at issue here, “the term ‘crime of
violence’ means 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. § 924(c)(3)(B). To
borrow a phrase, the two statutes are “materially identical.”
1
More precisely, Lovo petitions for rehearing and Sorto
moves to adopt his and amicus’s arguments. See FED. R. APP. P.
28(i). We grant Sorto’s motions, which the government does not
oppose.
3
Gov’t’s Br. 12, Sessions v. Dimaya, S. Ct. No. 15-1498 (Nov.
14, 2016); see Dimaya, 138 S. Ct. at 1241 (Roberts, C.J.,
dissenting) (“§ 16 is replicated in . . . § 924(c)”). We therefore
discern no basis for a different result here from the one in
Dimaya. Accord United States v. Salas, 889 F.3d 681, 684-86
(10th Cir. 2018) (invalidating section 924(c)(3)(B) and
explaining why its textual similarity with section 16(b) is
dispositive). In short, section 924(c)(3)(B) is void for
vagueness. Dimaya requires us to abjure our earlier anlaysis
to the contrary.
The government concedes “that the panel should grant
rehearing in order to address the impact of Dimaya.”
Appellee’s Suppl. Br. 3. But it urges us to “construe
§ 924(c)(3)(B) to require a case-specific approach that
considers appellants’ own conduct, rather than the ‘ordinary
case’ of the crime.” Id. at 8. In the government’s telling, this
construction is a necessary means of avoiding “the
constitutional concerns that [a categorical] interpretation
would create following Dimaya.” Id. Whatever the clean-
slate merits of the government’s construction, we as a panel are
not at liberty to adopt it: circuit precedent demands a
categorical approach to section 924(c)(3)(B), see United States
v. Kennedy, 133 F.3d 53, 56 (D.C. Cir. 1998), and one panel
cannot overrule another, see LaShawn A. v. Barry, 87 F.3d
1389, 1395 (D.C. Cir. 1996) (en banc) (“That power may be
exercised only by the full court, either through an in banc
decision . . . or pursuant to the more informal practice adopted
in Irons v. Diamond, 670 F.2d 265, 268 n.11 (D.C. Cir.
1981).”).
The government says this “panel is not bound by Kennedy”
because Dimaya, “an intervening Supreme Court decision,”
“casts doubt” on it. Appellee’s Suppl. Br. 24 (internal
quotation omitted). We disagree. Dimaya nowise calls into
4
question Kennedy’s requirement of a categorical approach.
To the contrary, a plurality of the High Court concluded that
section 16(b)—which, again, is textually parallel with section
924(c)(3)(B)—is “[b]est read” to “demand[] a categorical
approach” “even if that approach [cannot] in the end satisfy
constitutional standards.” Dimaya, 138 S. Ct. at 1217
(plurality opinion) (emphasis added). If anything, that
analysis reinforces Kennedy’s precedential viability. Granted,
“Dimaya did not include any holding by a majority of the Court
that § 16(b) requires a categorical approach, and it leaves open
the same question for § 924(c)(3)(B).” Appellee’s Suppl. Br.
8 (emphasis added). But the fact that Dimaya did not
definitively resolve the matter only underscores our point:
Dimaya cannot be read to mean that Kennedy “is clearly an
incorrect statement of current law.” United States v. Dorcely,
454 F.3d 366, 373 n.4 (D.C. Cir. 2006) (noting this criterion
for overruling circuit precedent, with full court’s endorsement,
via panel decision) (internal quotation omitted); see Policy
Statement on En Banc Endorsement of Panel Decisions 1 (Jan.
17, 1996), perma.cc/9FGD-C265.
Accordingly, we grant rehearing for the limited purpose of
vacating Lovo’s and Sorto’s section 924(c) convictions in light
of Dimaya. 2 We do not otherwise reconsider or disturb our
decision in Eshetu. We remand to the district court for further
proceedings consistent with this opinion and the unaffected
portions of Eshetu.
2
In vacating the section 924(c) convictions, we express no
view—because the government advances no argument—about
whether conspiracy in violation of 18 U.S.C. § 1951 is a crime of
violence under the “elements clause” in section 924(c)(3)(A).
Appellee’s Suppl. Br. 2 n.2 (conceding that “[o]nly the [residual]
clause is at issue here”).