### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 15

- 1770
U NITED S TATES OF A MERICA , Plaintiff

- Appellee ,

v.

R AUL V IVAS

- C EJA , Defendant

- Appellant

.

____________________ Appeal from the Unit ed States District Court for the Western District of Wisconsin

. No. 3: 14 CR000 55

- 001

— William M. Conley , Chief Judge

.

____________________
A RGUED D ECEMBER 2 , 2015

— D ECIDED D ECEMBER 22, 2015

____________________

Before K ANNE and S YKES , Circuit Judges , and G ILBERT , District Judge

. *
S YKES , 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

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prior to removal. See 8 U.S.C. § 1326(b)(2). As r elevant 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.”

T he district court concluded that Vivas

- Ceja’s Wisconsin conviction for fl eeing an officer was a crime of violence under § 16(b), raising t h e maximum sentence to 20 years. The court imposed a sen tence of 21 months. Vivas

- Ceja appeals , arguing that § 16(b)’s definition of “ crime of vi olence” is unconstitutionally vague in light o f 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 ordi nary people fair notice

... or so standardless that it invites arbitrary enforc ement.” 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), violate s this prohibition

. Section 16(b) is materially indistinguishable from the ACCA’s residual clause . W e 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 r emoved from the United States on three occasions. On Se ptember 22, 2013, he was arrested at an airport in Madison,No. 15

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Wisconsin , for illegally re entering the country. He pleaded guilty to illegal reentry after r emoval 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 fo r three specified misdemeanors or a felony can b e imprisoned for up to 10 years, and a defendant with a prior conviction for an aggr avated 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 cross

reference 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, a ttempted use, or threatened use of physical fo rce 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 sever ity

— e.g. , driving with a revoked license, disorderly conduct, and driving while intoxicated. H e also has a felony convi ction for fleeing an officer in violation of section 346.04(3) of the Wisconsin Statutes . The district court concluded that this conviction i s a crime of violence under § 16(b)

. Vivas

- Ceja object ed that § 16(b) i s unconstitutionally vague , but the4 No. 15

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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 se ntence of 21 month s

. Viv as

- Ceja appeal ed , renewing his argument that § 16(b) is unconstitutionally vague. We held the appea l for Johnson and heard oral argument aft er 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 i t 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 se ntence of a felon who unlawfully possesses a firearm after three prior convi ctions “ 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 o ne year

... that

— (i) has as an element the use, attempted use, o r threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conductNo. 15

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that presents a serious potential risk of physical injury to another

... . Id. § 924(e)(2)(B) (em phasis added ). The emphasized portion of the statute is known as the ACCA’s residual clause. The defendant in Johnson was sentence d under the ACCA after one of his prior conviction s

— for unlawful possess ion 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 i s unconstitutionally vague. Id.
The Court began its analysis of the vaguenes s question by noting that the residual clause mandates the use of a two

step framework , known as the categorical approach , to determine whether a crime is a violent felony

. Id. at 2557 , 2562

. In the f irst 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 s econd 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 ap proach combine to render the clause unconstitutionally vague. Id

. The f irst part gives courts no guidance to determine what constitute s 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 stati stical analysis of the state reporter? A survey? Expert ev idence? Google? Gut instinct? ’ ” (quoting United States v.6 No. 15

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Mayer , 560 F.3d 948, 952 (9th Cir. 2009) (Kozinski, C.J., dissenting from denial of rehearing en banc) ) )

. T he second part “leaves uncer tainty about how much risk it takes” before a co urt can conclude that the “ordinary case” of a crime is serious enough to be a violent felony. Id. at 2558. T his combination of indeterminacy with indeterminacy , the Court held, “produces more unpredictability and arbitrar iness 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 cha llenge for vagueness. 1 Recall that § 16(b) defin es “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 i de ntical 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) ( conclud ing , in the civil

- rem oval context , that § 16(b) is unconstitutionally vague after Johnson ).

R egard ing the first step of the categorical approach , § 16(b) substitutes the phrase “by its nature” for the residual

1 Other post

-Johnson ca ses currently before this c ourt

— 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 S entencing G uidelines, U.S.S.G. § 4B1.2(a)(2), which present additional complications not present in Vivas

- Ceja’s case.No. 15

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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 court s 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

. T h is requires an evaluation of “the elements and the nature of the offense of conviction, ” not “ the particular facts rela ting to [a defendant’s] crime.” Id. at 7. Leocal ’s interpretation of § 16(b) is indistinguishable from Johnson ’s interpretation of the residual clause

. R egard ing 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

. ” A ny difference between the se two phrases is superficial

. J ust like the residual clause, § 16(b) offer s courts no guidance to dete rmine when the risk involved in the ordinary case of a crime qualifies as “su bstantial.” Johnson concluded that the indeterminacy of both parts of the r esidual clause’s cat egorical approach

— the “ ordinary

case ” inquiry and the “ risk ” inquiry

— render ed the clause unconstitutional ly vague. Because § 16(b) requires the identical indeterminate two

- step approach , it too is unconst itutionally 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 fe at ure not present in § 16(b). The government overreads this8 No. 15

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part of the Court’s analysis

. As we’ve explained, t he 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. On ly later did t he Court obs erve 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 enumer ation of specific crimes did nothing to clarify the quality or quantity of risk nece ssary to classify offenses under the statute

. T he list itself wasn’t one of the “two features” that combined to make t he 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 d isagreement” 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

un necessary to throw in the towel and declare the sta tute unconstitutionally vague. This argument, too, overstates the Court’s point. That t he resid ual clause ha d persistently

“ eluded stable construction ,” United States v. Jones , 689 F.3d 696, 699 (7th Cir. 2012) , wa s additional evidence that served
to “conf irm its hopeless indeterminacy , ” Johnson , 135 S. Ct. at 2558

. The c haotic state of the caselaw was not a necessary condition to the Court’s vagueness determination.
A pplying Johnson ’s reason ing here , we conclude that § 16(b) is unconstitutionally vague. The government doesn’tNo. 15

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urge us to affirm based on harmless

- error analysis

. Accor dingly, w e V ACATE Vivas

- Ceja’s sentence and R EMAND for resentencing.