Welcome Back, Supreme Court… Seems Like Last Year – Update for October 2, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


In our October 3, 2016, newsletter – an entire year ago minus a dat – we wrote about Lynch v. Dimaya, a case on which the Supreme Court had just granted review. Dimaya was nominally about immigration law, but was expected to address whether Johnson v. United States’ constitutional ban on the “residual clause” might apply to other statutes and guidelines using the same language to define a crime of violence, especially 18 USC 16(b).

berra171002Now, a year later, it’s déjà vu all over again. The Supreme Court will open its October Term 2017 (which lasts until the end of next June) with oral argument on the case, now named Sessions v. Dimaya (because Loretta Lynch is gone as Attorney General, replaced by Jefferson Beauregard Sessions III, the only Attorney General in modern history who has been acknowledged to be an idiot by his boss, the President).

The issue in Dimaya is whether, and if so how, the Constitution applies to judicial review of the Immigration and Nationality Act. A noncitizen who is convicted of an “aggravated felony” is subject to mandatory removal. The INA defines “aggravated felonies” to include 18 USC 16(b) crimes of violence, which includes (you guessed it) a “residual clause.”

In 2015, while Dimaya’s appeal was pending, the court held in Johnson v. United States that the Armed Career Criminal Act’s residual clause was so vague as to violate due process. Relying on Johnson, the 9th Circuit found that Sec. 16(b) was unconstitutionally vague and vacated Dimaya’s removal order.

The government contends the Circuit erred in applying the due process clause’s prohibition of vagueness in criminal statutes to a civil immigration law. Dimaya counters that Johnson compels a finding that Sec.16(b) is unconstitutionally vague.

vaguenes160516Divisions among the justices emerged in the initial argument of the case. However, no justice seemed interested in holding that removal provisions are subject to due process vagueness standards, and they appeared divided on whether Dimaya is distinguishable from Johnson and thus whether the statute is void for vagueness. Short-handed after Justice Antonin Scalia’s death, the court ordered reargument.

In other Supreme Court news, the Court agreed in last week’s “long conference” to hear five new criminal cases. It has not yet released what is expected to be a very long list of denied petitions for cert resulting from the meeting. The new cases are:

City of Hays, Kansas v. Vogt, where the justices will consider whether the 5th Amendment is violated when a defendant’s non-Mirandized statements are used at a probable cause hearing but not at a criminal trial;

Collins v. Virginia, where the justices will clarify whether the “automobile exception” to the warrant requirement applies to a car parked on private property close to a home;

Byrd v. United States, where the justices will consider expectations of privacy in a rental car for someone who is not an authorized driver;

Rosales-Mireles v. United States, where the justices will consider whether the 5th Amendment has set an impermissibly high standard for the court of appeals to correct a plain error; and

McCoy v. Louisiana, where the justices will decide whether it is unconstitutional for defense counsel to concede a defendant’s guilt over the defendant’s objection.

Sessions v. Dimaya, Case No. 15-1498 (Supreme Court, to be reargued Oct. 2, 2017)

– Thomas L. Root


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