No 18 428 In The Supreme Court Of The United States-Books Pdf

No 18 428 In the Supreme Court of the United States
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QUESTION PRESENTED, Whether the subsection specific definition of crime. of violence in 18 U S C 924 c 3 B which applies only. in the limited context of a federal criminal prosecution. for possessing using or carrying a firearm in connec. tion with acts comprising such a crime is unconstitu. tionally vague, TABLE OF CONTENTS, Opinions below 1. Jurisdiction 1, Constitutional and statutory provisions involved 2. Statement 2, Reasons for granting the petition 7, Conclusion 8. Appendix A Court of appeals opinion May 4 2018 1a, Appendix B Court of appeals order denying rehearing.
May 23 2018 12a, Appendix C Constitutional and statutory provisions 13a. TABLE OF AUTHORITIES, Johnson v United States 135 S Ct 2551 2015 4 6 7. Sessions v Dimaya 138 S Ct 1204 2018 5 6 7, Armed Career Criminal Act of 1984 18 U S C. 924 e 2 B ii 4 19a, Immigration and Nationality Act 8 U S C 1101. 18 U S C 2 2 3, 18 U S C 16 b 5 6 13a, 18 U S C 842 i 2 3 14a.
18 U S C 844 a 2 3, 18 U S C 844 i 2 3 6 14a, 18 U S C 844 n 2 3 15a. 18 U S C 921 a 3 3, 18 U S C 924 c 2 3 4 6, 18 U S C 924 c 1 A 2 3 15a. Statutes Continued Page, 18 U S C 924 c 1 B ii 2 3 4 16a. 18 U S C 924 c 3 4 17a, 18 U S C 924 c 3 A 4 6 17a. 18 U S C 924 c 3 B 4 5 6 7 17a, In the Supreme Court of the United States.
UNITED STATES OF AMERICA PETITIONER, CLIFFORD RAYMOND SALAS. ON PETITION FOR A WRIT OF CERTIORARI, TO THE UNITED STATES COURT OF APPEALS. FOR THE TENTH CIRCUIT, PETITION FOR A WRIT OF CERTIORARI. The Solicitor General on behalf of the United States. respectfully petitions for a writ of certiorari to review. the judgment of the United States Court of Appeals for. the Tenth Circuit in this case, OPINIONS BELOW, The opinion of the court of appeals App infra 1a 11a. is reported at 889 F 3d 681, JURISDICTION, The judgment of the court of appeals was entered on.
May 4 2018 A petition for rehearing was denied on, May 23 2018 App infra 12a On August 10 2018. Justice Sotomayor extended the time within which to. file a petition for a writ of certiorari to and including. September 20 2018 On September 7 2018 Justice So, tomayor further extended the time to October 19 2018. The jurisdiction of this Court is invoked under 28 U S C. CONSTITUTIONAL AND STATUTORY, PROVISIONS INVOLVED, The pertinent constitutional and statutory provisions. are reproduced in the appendix to this petition See App. infra 13a 20a, Following a jury trial in the United States District. Court for the District of New Mexico respondent was. convicted of conspiracy to commit arson in violation of. 18 U S C 844 n arson in violation of 18 U S C 844 i. and 2 using carrying or possessing a destructive de. vice in furtherance of a crime of violence in violation of. 18 U S C 924 c 1 A and B ii and possession of an, explosive by a felon in violation of 18 U S C 842 i and.
844 a Judgment 1 2 The district court sentenced re. spondent to 420 months of imprisonment to be followed. by three years of supervised release Id at 3 4 The. court of appeals vacated his Section 924 c conviction. and remanded App infra 1a 11a, 1 In the early morning hours of August 31 2012 re. spondent used two homemade Molotov cocktails to fire. bomb a tattoo parlor in Las Cruces New Mexico App, infra 2a see Gov t C A Br 1 3. Respondent committed the firebombing at the insti, gation of Conrad Salazar a fellow member of a violent. New Mexico prison gang called the Syndicate 3 9 15 Tr. 95 96 98 120 121 Salazar was angry that his tattoo. business had failed and believed that his former busi. ness associates who had left him to open their own tattoo. parlor had stolen from him Id at 103 104 Salazar had. warned his former associates that if they opened their. own tattoo shop he was going to burn it down Id at. 107 108 Salazar made two Molotov cocktails by filling. empty 40 ounce beer bottles with gasoline and shoving. rags into the tops of the bottles Id 113 115 But be. cause Salazar was wearing a monitoring device on his. ankle at the time he did not want to firebomb the shop. himself Id at 104 105, Respondent volunteered to firebomb the tattoo par. lor for Salazar using the two Molotov cocktails Salazar. had already made 3 9 15 Tr 119 121 127 Salazar s, brother drove respondent to the tattoo parlor located.
in a strip mall at around 2 a m Id at 11 31 32 134. 135 When they arrived respondent pulled a mask over. his face exited the car and used a metal bar to hammer. the tattoo parlor s glass window until it shattered Id. at 136 137 He then retrieved one of the Molotov cock. tails from the car lit the rag sticking out of the top and. threw it into the parlor where it exploded Id at 137. Respondent ran back to the car grabbed the second, Molotov cocktail lit it and tossed it into the tattoo par. lor as well Id at 137 138 The business was completely. destroyed 3 10 15 Tr 179, 2 A federal grand jury in the District of New Mexico. indicted respondent on charges of conspiracy to commit. arson in violation of 18 U S C 844 n arson in violation. of 18 U S C 844 i and 2 using carrying or possessing. a destructive device in furtherance of a crime of vio. lence in violation of 18 U S C 924 c 1 A and B ii, and possession of an explosive by a felon in violation of. 18 U S C 842 i and 844 a Third Superseding Indict, Section 924 c makes it a crime to possess a fire. arm defined to include a destructive device 18 U S C. 921 a 3 in furtherance of any federal crime of vio. lence or drug trafficking crime 18 U S C 924 c 1 A. The statute contains its own specific definition of crime. of violence which is applicable only f or purposes of. this subsection 18 U S C 924 c 3 and which has two. subparagraphs A and B Section 924 c 3 A specifies, that the term crime of violence includes any offense.
that is a felony and has as an element the use attempted. use or threatened use of physical force against the person. or property of another 18 U S C 924 c 3 A Section, 924 c 3 B specifies that the term crime of violence. also includes any offense that is 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 18 U S C, 924 c 3 B The indictment alleged that the crime of. violence for respondent s Section 924 c count was ar. son Third Superseding Indictment 2, The jury found respondent guilty on all counts Ver. dict 1 The district court sentenced him to 30 years of. imprisonment on the Section 924 c count see 18 U S C. 924 c 1 B ii to be served consecutively to concur, rent terms of 60 months of imprisonment on the other. counts for a total sentence of 420 months Judgment 3 4. 3 On appeal respondent argued for the first time, that arson does not qualify as a crime of violence under.
18 U S C 924 c 3 App infra 3a Respondent con, tended that arson does not satisfy Section 923 c 3 A. and that Section 924 c 3 B is unconstitutionally, vague in light of this Court s decision in Johnson v. United States 135 S Ct 2551 2015 In Johnson the, Court invalidated on vagueness grounds the residual. clause in the sentence enhancement provisions of the. Armed Career Criminal Act of 1984 ACCA 18 U S C, 924 e 2 B ii which classifies an offense underlying a. prior conviction as a violent felony if that prior offense. otherwise involves conduct that presents a serious po. tential risk of physical injury to another, While respondent s appeal was pending this Court.
decided Sessions v Dimaya 138 S Ct 1204 2018 In, Dimaya the Court held unconstitutionally vague the. definition of crime of violence in 18 U S C 16 b as. incorporated into the removability provisions of the Im. migration and Nationality Act INA 8 U S C 1101 et, seq See 138 S Ct at 1210 1213 Section 16 b which. defines a crime of violence to include any other of. fense 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 is linguisti, cally nearly identical to Section 924 c 3 B But unlike. Section 924 c 3 B and like the ACCA s residual clause. it applies in circumstances that include the classification. of prior convictions as in Dimaya itself where an al. ien s state conviction had led to federal removal pro. ceedings See 138 S Ct at 1212 1213, The Court explained that Section 16 b as incorpo. rated into the INA suffered from the same two fea, tures combined in the same constitutionally problem.
atic way that had led the Court to find the ACCA s. residual clause unconstitutionally vague in Johnson. Dimaya 138 S Ct at 1213 The first feature was a cat. egorical approach to the crime of violence inquiry un. der which a court would seek to identify a crime s or. dinary case and to assess whether the crime in that. idealized ordinary case poses a substantial risk that. physical force will be used Id at 1215 Second the stat. ute left uncertainty about the level of risk that makes a. crime violent Ibid The Court emphasized in Di, maya as it had in Johnson that it d id not doubt the. constitutionality of applying a substantial risk stand. ard like Section 16 b s to real world conduct rather. than a judge imagined abstraction Id at 1215 1216, quoting Johnson 135 S Ct at 2558 2561. 4 The court of appeals held that the definition of. crime of violence in Section 924 c 3 B is unconstitu. tionally vague and vacated respondent s Section 924 c. conviction App infra 1a 11a, The court of appeals first noted that the parties agreed. that arson in violation of 18 U S C 844 i does not cat. egorically qualify as a crime of violence under Section. 924 c 3 A because it does not require as an element. the use of force against the property of another App. infra 2a F or example 844 i may apply to a person, who destroys his or her own property Id at 2a 3a. The court of appeals then concluded that Dimaya s, reasoning for invalidating 16 b applies equally to.
924 c 3 B App infra 8a The court declined to, construe Section 924 c 3 B to incorporate a case. specific approach to the crime of violence inquiry that. would avoid constitutional concerns Id at 7a The, court stated that its precedent required an ordinary. case categorical approach to Section 924 c 3 B of the. sort ascribed to Section 16 b in Dimaya and that the. statute was unconstitutional under that interpretation. Id at 7a 8a And the court held that petitioner was en. titled to reversal of his Section 924 c conviction even. under the plain error standard of review Id at 9a 11a. 5 The government petitioned for rehearing en banc, In its petition the government acknowledged that it had. previously taken the position that Section 924 c 3 B. requires a categorical approach Gov t C A Pet for, Reh g 4 The government observed however that such. an interpretation would raise constitutional concerns. in light of Dimaya Ibid It thus urged the court of. appeals to construe Section 924 c 3 B to employ a, case specific approach under which a jury would de.
termine whether a defendant s own conduct as proved. at trial satisfied the statutory definition Id at 8. The court of appeals denied rehearing en banc App, REASONS FOR GRANTING THE PETITION. For reasons explained in the government s petition. for a writ of certiorari in United States v Davis which. is being filed in conjunction with this petition the court. of appeals holding that the definition of a crime of. violence in 18 U S C 924 c 3 B is unconstitutionally. vague is wrong and warrants this Court s review See. Pet at 12 26 Davis supra Davis Pet That holding, rests on a construction of Section 924 c 3 B that em. ploys a categorical ordinary case approach to deter. mine whether an offense qualifies as a crime of violence. under Section 924 c 3 B Although the government, and courts of appeals construed the statute that way be. fore Sessions v Dimaya 138 S Ct 1204 2018 it is now. clear that such a construction raises serious questions. about the statute s constitutionality Accordingly as. explained in the government s petition in Davis courts. should construe Section 924 c 3 B which unlike the. provision at issue in Dimaya is used solely to categorize. a defendant s current offense not any prior conviction. to require a case specific approach that considers. the defendant s own conduct rather than an idealized. ordinary case See Davis Pet 12 Such a construction. is a natural reading of the provision s text and is. unquestionably constitutional See id at 12 16 Dimaya. 138 S Ct at 1215 Johnson v United States 135 S Ct, 2551 2561 2015. Davis provides the best vehicle for addressing the. question presented See Davis Pet at 25 26 Although. this case shares many of Davis s optimal features, disposition by trial direct review and conduct that.
would plainly constitute a crime of violence under a. case specific approach then Judge Gorsuch s partici. pation on a motions panel at an earlier stage of this case. may preclude it from being heard by the full Court See. 8 24 16 Order 1 3 substituting federal public defender. for petitioner s previous appointed counsel The Court. should accordingly grant the petition for a writ of certi. orari in Davis hold the petition in this case pending its. Court invalidated on vagueness grounds the residual clause in the sentence enhancement provisions of the Armed Career Criminal Act of 1984 ACCA 18 U S C 924 e 2 B ii which classifies an offense underlying a prior conviction as a violent felony if that prior offense otherwise involves conduct that presents a serious po

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