Sunday, May 6, 2018

Section 924(c)(3)'s residual clause held unconstitutionally vague

There are no qualms about it in the Tenth Circuit: 924(c)(3)’s residual clause is unconstitutionally vague. 
In United States v. Salas, the Tenth Circuit held that section 924(c)(3)(B), which defines a “crime of violence” that may enhance a sentence for a conviction under that section, “possesses the same features as the ACCA’s residual clause and [section] 16(b) that combine to produce more unpredictability and arbitrariness than the Due Process Clause tolerates[.]” As such, the Supreme Court’s reasoning in Johnson v. United States invalidating the ACCA’s residual clause, and the Court’s reasoning last month in Sessions v. Dimaya invalidating 18 USC § 16(b)—the criminal code’s general definition of a “crime of violence”—applies equally here. “Vague laws invite arbitrary power,” Justice Gorsuch aptly noted in his concurrence in Dimaya. Through Salas the Tenth Circuit has thus made certain—and on plain-error review at that—that a sentencing court may not rely on section 924(c)(3)’s residual clause to enhance a defendant’s sentence.

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