In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 15-1770

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RAUL VIVAS-CEJA,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 3:14CR00055-001 — William M. Conley, Chief Judge.

____________________

ARGUED DECEMBER 2, 2015 — DECIDED DECEMBER 22, 2015

____________________

Before KANNE and SYKES, Circuit Judges, and GILBERT, 

District Judge.*

SYKES, Circuit Judge. Raul Vivas-Ceja pleaded guilty to 

illegally reentering the United States after removal, the 

maximum sentence for which is raised to 20 years if the 

defendant has been convicted of an “aggravated felony” 

 * Of the Southern District of Illinois, sitting by designation.
2 No. 15-1770

prior to removal. See 8 U.S.C. § 1326(b)(2). As relevant here,

the definition of “aggravated felony” is supplied by the 

definition of “crime of violence” in 18 U.S.C. § 16(b), which 

includes “any ... 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.”

The district court concluded that Vivas-Ceja’s Wisconsin 

conviction for fleeing an officer was a crime of violence 

under § 16(b), raising the maximum sentence to 20 years. 

The court imposed a sentence of 21 months. Vivas-Ceja

appeals, arguing that § 16(b)’s definition of “crime of violence” is unconstitutionally vague in light of Johnson v. 

United States, 135 S. Ct. 2551 (2015). 

The Fifth Amendment’s Due Process Clause prohibits the 

government from depriving a person of liberty under a 

statute “so vague that it fails to give ordinary people fair 

notice ... or so standardless that it invites arbitrary enforcement.” Id. at 2556. In Johnson the Supreme Court held that 

sentencing a defendant under the so-called “residual clause”

of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. 

§ 924(e)(2)(B)(ii), violates this prohibition. Section 16(b) is 

materially indistinguishable from the ACCA’s residual 

clause. We hold that it too is unconstitutionally vague 

according to the reasoning of Johnson. We therefore vacate 

Vivas-Ceja’s sentence and remand for resentencing.

I. Background

Raul Vivas-Ceja is a citizen of Mexico and has been removed from the United States on three occasions. On September 22, 2013, he was arrested at an airport in Madison,
No. 15-1770 3

Wisconsin, for illegally reentering the country. He pleaded 

guilty to illegal reentry after removal in violation of 8 U.S.C. 

§ 1326.

The maximum sentence for a violation of § 1326 depends 

on the defendant’s criminal history prior to removal. A 

defendant with no criminal history can be imprisoned for up 

to two years, a defendant with convictions for three specified 

misdemeanors or a felony can be imprisoned for up to 10 

years, and a defendant with a prior conviction for an aggravated felony can be imprisoned for up to 20 years. See

§ 1326(a)–(b). The definition of “aggravated felony” is found 

in 8 U.S.C. § 1101(a)(43)(F), which incorporates by crossreference the definition of “crime of violence” in 18 U.S.C. 

§ 16. Section 16 defines “crime of violence” as:

(a) an offense that has as an element the use, attempted use, or threatened use of physical 

force against the person or property of another, 

or

(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.

(Emphasis added.)

Vivas-Ceja has numerous convictions of varying severity—e.g., driving with a revoked license, disorderly conduct, 

and driving while intoxicated. He also has a felony conviction for fleeing an officer in violation of section 346.04(3) of 

the Wisconsin Statutes. The district court concluded that this

conviction is a crime of violence under § 16(b). Vivas-Ceja

objected that § 16(b) is unconstitutionally vague, but the 
4 No. 15-1770

district court rejected this argument. Classifying the fleeing 

conviction as a crime of violence elevated the statutory 

maximum sentence to 20 years. The court imposed a sentence of 21 months.

Vivas-Ceja appealed, renewing his argument that § 16(b) 

is unconstitutionally vague. We held the appeal for Johnson

and heard oral argument after the Court issued its opinion.

We now proceed to decision.

II. Discussion

The Due Process Clause prohibits the government from 

depriving a person of life, liberty, or property “under a 

criminal law so vague that it fails to give ordinary people 

fair notice of the conduct it punishes, or so standardless that 

it invites arbitrary enforcement.” Johnson, 135 S. Ct. at 2556.

This prohibition applies “not only to statutes defining 

elements of crimes, but also to statutes fixing sentences.” Id.

at 2557.

Johnson dealt with the ACCA, which enhances the sentence of a felon who unlawfully possesses a firearm after 

three prior convictions “for a violent felony or a serious drug 

offense.” 18 U.S.C. § 924(e)(1). For purposes of the ACCA, 

“violent felony” is defined as:

any crime punishable by imprisonment for a 

term exceeding one year ... that—

(i) has as an element the use, attempted use, or 

threatened use of physical force against the 

person of another; or

(ii) is burglary, arson, or extortion, involves use 

of explosives, or otherwise involves conduct 
No. 15-1770 5

that presents a serious potential risk of physical 

injury to another ... .

Id. § 924(e)(2)(B) (emphasis added). The emphasized portion 

of the statute is known as the ACCA’s residual clause. The 

defendant in Johnson was sentenced under the ACCA after

one of his prior convictions—for unlawful possession of a 

short-barreled shotgun—was classified as a crime of violence 

under the residual clause. 135 S. Ct. at 2556. When his case 

reached the Supreme Court, the Justices asked the parties to 

address whether the residual clause is unconstitutionally 

vague. Id.

The Court began its analysis of the vagueness question 

by noting that the residual clause mandates the use of a twostep framework, known as the categorical approach, to 

determine whether a crime is a violent felony. Id. at 2557, 

2562. In the first step, the court must determine “the kind of 

conduct that the crime involves in ‘the ordinary case’” as 

opposed to the facts on the ground in the defendant’s prior 

case. Id. at 2557. This inquiry stems from the statutory 

phrase “any crime [that] ... otherwise involves conduct.” Id. 

In the second step, the court must gauge whether that

ordinary case of the crime “presents a serious potential risk 

of physical injury.” Id.

The Court then held that the two parts of the residual 

clause’s categorical approach combine to render the clause 

unconstitutionally vague. Id. The first part gives courts no 

guidance to determine what constitutes the “ordinary case” 

of a crime. Id. (“How does one go about deciding what kind 

of conduct the ‘ordinary case’ of a crime involves? ‘A statistical analysis of the state reporter? A survey? Expert evidence? Google? Gut instinct?’” (quoting United States v. 
6 No. 15-1770

Mayer, 560 F.3d 948, 952 (9th Cir. 2009) (Kozinski, C.J., 

dissenting from denial of rehearing en banc))). The second 

part “leaves uncertainty about how much risk it takes” 

before a court can conclude that the “ordinary case” of a 

crime is serious enough to be a violent felony. Id. at 2558.

This combination of indeterminacy with indeterminacy, the 

Court held, “produces more unpredictability and arbitrariness than the Due Process Clause tolerates.” Id.

Vivas-Ceja was sentenced under § 16(b), which like the 

residual clause is a sentencing statute susceptible to challenge for vagueness.1 Recall that § 16(b) defines “crime of 

violence” as “any ... 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.” This language, though not 

identical to the residual clause, is materially the same. See

Jimenez-Gonzalez v. Mukasey, 548 F.3d 557, 562 (7th Cir. 2008);

Ortiz v. Lynch, 796 F.3d 932, 935 (8th Cir. 2015). Indeed the 

residual clause’s two-step categorical approach is also found 

in § 16(b). See Dimaya v. Lynch, 803 F.3d 1110, 1119 (9th Cir. 

2015) (concluding, in the civil-removal context, that § 16(b) is 

unconstitutionally vague after Johnson).

Regarding the first step of the categorical approach,

§ 16(b) substitutes the phrase “by its nature” for the residual 

 

1 Other post-Johnson cases currently before this court—United States v. 

Rollins, No. 13-1731 (7th Cir. argued Dec. 2, 2015); United States v. 

Hurlburt, No. 14-3611 (7th Cir. argued Dec. 2, 2015); United States v. 

Gillespie, No. 15-1686 (7th Cir. argued Dec. 2, 2015)—involve vagueness 

challenges to the residual clause in the Sentencing Guidelines, U.S.S.G. 

§ 4B1.2(a)(2), which present additional complications not present in 

Vivas-Ceja’s case.
No. 15-1770 7

clause’s “otherwise involves conduct.” That these two 

phrases are synonymous was confirmed by the Supreme 

Court in Leocal v. Ashcroft, 543 U.S. 1 (2004), decided more 

than a decade before Johnson. There the Court stated that 

§ 16(b) directs courts to consider whether an offense would 

“naturally involve a person acting in disregard of the risk 

that physical force might be used against another.” Id. at 10. 

This requires an evaluation of “the elements and the nature 

of the offense of conviction,” not “the particular facts relating to [a defendant’s] crime.” Id. at 7. Leocal’s interpretation 

of § 16(b) is indistinguishable from Johnson’s interpretation 

of the residual clause.

Regarding the second step of the categorical approach—

assessing the level of risk in the “ordinary case” of the 

crime—§ 16(b) substitutes “substantial risk” for the residual 

clause’s “serious potential risk.” Any difference between 

these two phrases is superficial. Just like the residual clause, 

§ 16(b) offers courts no guidance to determine when the risk 

involved in the ordinary case of a crime qualifies as “substantial.”

Johnson concluded that the indeterminacy of both parts of 

the residual clause’s categorical approach—the “ordinary

case” inquiry and the “risk” inquiry—rendered the clause

unconstitutionally vague. Because § 16(b) requires the 

identical indeterminate two-step approach, it too is unconstitutionally vague.

The government insists that Johnson doesn’t compel this 

conclusion because the Court placed special emphasis on the 

confusion created by the list of enumerated crimes preceding 

the residual clause, see Johnson, 135 S. Ct. at 2558–60, a feature not present in § 16(b). The government overreads this 
8 No. 15-1770

part of the Court’s analysis. As we’ve explained, the heart of 

the Court’s opinion demonstrates why the two aspects of the 

residual clause’s categorical approach—the ordinary-case 

determination and the risk assessment—“conspire” to make 

the clause unconstitutionally vague. Id. at 2557. Only later 

did the Court observe that the residual clause also “forces 

courts to interpret serious potential risk in light of the four 

enumerated crimes,” which are “far from clear in respect to 

the degree of risk each poses.” Id. at 2558 (quotation marks 

omitted). In other words, the enumeration of specific crimes 

did nothing to clarify the quality or quantity of risk necessary to classify offenses under the statute. The list itself 

wasn’t one of the “two features” that combined to make the 

clause unconstitutionally vague. Id. at 2557.

The government also points to the Court’s discussion of 

its own “repeated failures to craft a principled and objective 

standard out of the residual clause,” id. at 2558, and its 

reference to the “pervasive disagreement” among lower 

courts about how to apply the clause, id. at 2560. Section

16(b), on the other hand, hasn’t produced a shifting and 

irreconcilable body of caselaw, so the government thinks it’s 

unnecessary to throw in the towel and declare the statute 

unconstitutionally vague. This argument, too, overstates the 

Court’s point. That the residual clause had persistently 

“eluded stable construction,” United States v. Jones, 689 F.3d 

696, 699 (7th Cir. 2012), was additional evidence that served 

to “confirm its hopeless indeterminacy,” Johnson, 135 S. Ct. at 

2558. The chaotic state of the caselaw was not a necessary 

condition to the Court’s vagueness determination. 

Applying Johnson’s reasoning here, we conclude that 

§ 16(b) is unconstitutionally vague. The government doesn’t 
No. 15-1770 9

urge us to affirm based on harmless-error analysis. Accordingly, we VACATE Vivas-Ceja’s sentence and REMAND for 

resentencing.