Earlier this month, the Solicitor General filed a petition for certiorari in United States v. Jackson, No. 17-651 (filed Nov. 2, 2017), on the question “[w]hether the definition of ‘crime of violence’ in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague.” The government’s petition asks the Court to hold the petition pending the Court’s decision in Sessions v. Dimaya, 15-1498 (reargued Oct. 2, 2017), involving the question “[w]hether 18 U.S.C. § 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien's removal from the United States, is unconstitutionally vague.”
In Jackson, the government’s petition acknowledges a five to one circuit split on whether § 924(c)(3)(B) is unconstitutional since the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015) (holding the residual clause of the Armed Career Criminal Act of 1984, which defines “violent felony” as an offense that otherwise involves conduct that presents a serious potential risk of physical injury to another,” 18 U.S.C. § (924)(e)(2)(B)(ii), is unconstitutionally vague), with only the Seventh Circuit below holding that § 924(c)(3)(B)’s “crime of violence” definition is unconstitutional. See United States v. Jackson, 865 F.3d 946, 954 (7th Cir. 2017) (“[U]nless we hear differently from the Supreme Court in Dimaya, stare decisis and our recent precedents compel the conclusion that § 924(c)(3)(B) is unconstitutionally vague.”); id. at 952 (“[W]e have extended Johnson to conclude that § 924(c)(3)(B) is unconstitutionally vague.” (citing United States v. Cardena, 842 F.3d 959, 996 (7th Cir. 2016), cert. denied, No. 17-5321, 2017 WL 3184728 (Oct. 2, 2017)). The government has filed a similar petition for certiorari in United States v. Jenkins, No. 17-97 (filed July 19, 2017).
The Second, Sixth, Eighth, Eleventh, and District of Columbia Circuit Courts have held that § 924(c)(3)(B) is not unconstitutional. United States v. Eshetu, 863 F.3d 946, 953–955 (D.C. Cir. 2017); Ovalles v. United States, 861 F.3d 1257, 1265 (11th Cir. 2017); United States v. Prickett, 839 F.3d 697, 699–700 (8th Cir. 2016) (per curiam), petition for cert. pending, No. 16-7373 (filed Dec. 28, 2016); United States v. Hill, 832 F.3d 135, 145–149 (2d Cir. 2016); United States v. Taylor, 814 F.3d 340, 375–379 (6th Cir. 2016), petition for cert. pending, No. 16-6392 (filed Oct. 6, 2016). To date, the Supreme Court has not acted on the petitions filed in Pickett and Taylor, although they were filed about one year ago.
The Training Division provides in-depth sentencing resources to counsel challenging sentencing enhancements in the Predicate Convictions and Illegal entry and Illegal Rentry sections of the Specific Guideline/Statutory Sentencing Issues here.