from the United States District Court for the District of New
Mexico (D.C. No. 2:12-CR-03183-RB-3)
Pincus, Assistant Federal Public Defender (and Virginia L.
Grady, Federal Public Defender, with him on the briefs),
Denver, Colorado, for Defendant-Appellant.
Jordan, Assistant United States Attorney (and James D.
Tierney, Acting United States Attorney, with him on the
brief), Las Cruces, New Mexico, for Plaintiff-Appellee.
HOLMES, KELLY, and BACHARACH, Circuit Judges.
Clifford Raymond Salas was found guilty of various
arson-related offenses, and he now appeals from his
conviction and sentence under 18 U.S.C. § 924(c)(1) for
using a destructive device in furtherance of a crime of
violence. We have jurisdiction under 18 U.S.C. § 3742(a)
and 28 U.S.C. § 1291, and we remand to the district
court with instructions to vacate Mr. Salas's §
924(c)(1) conviction and resentence him because §
924(c)(3)(B), the provision defining a "crime of
violence" for the purposes of his conviction, is
using a Molotov cocktail to firebomb a tattoo parlor, Mr.
Salas was convicted under 18 U.S.C. § 844(n) for
conspiracy to commit arson (count 1), 18 U.S.C. §§
2 and 844(i) for aiding and abetting the commission of arson
(count 2), and 18 U.S.C. § 842(i) for being a felon in
possession of an explosive (count 4). 1 R. 5- 7, 82-83. He
was also convicted under 18 U.S.C. § 924(c)(1) for using
a destructive device in furtherance of a crime of violence
(count 3) - the "destructive device" being a
Molotov cocktail,  and the "crime of violence"
being arson. Id. For his offenses, Mr. Salas was
sentenced to a total of 35 years' imprisonment: 5 years
for counts 1, 2, and 4 and, pursuant to §
924(c)(1)(B)(ii)'s mandatory minimum sentence, 30 years
for count 3. Id. at 84; 5 R. 13-14. He was also
sentenced to 3 years' supervised release. 1 R. 85.
924(c)(3) defines the term "crime of violence" as
either a felony that "has as an element the use,
attempted use, or threatened use of physical force against
the person or property of another" or 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." Both
parties agree that the first definition, known as the
"elements clause, " does not apply here because
§ 844(i) arson does not require, as an element, the use
of force against the property "of another"; for
example, § 844(i) may apply to a person who destroys his
or her own property. See 18 U.S.C. § 844(i)
(2012) (prohibiting damaging or destroying "any
building, vehicle, or other real or personal property"
used or affecting interstate or foreign commerce (emphasis
added)); see also Torres v. Lynch, 136 S.Ct. 1619,
1629-30 (2016) (noting that a similar "crime of
violence" provision would not apply to definitions of
arson that include the destruction of one's own
property). Consequently, Mr. Salas could have been convicted
only under the second definition, known as §
924(c)(3)'s "residual clause."
trial, Mr. Salas did not argue that § 844(i) arson does
not satisfy § 924(c)(3)'s crime-of-violence
definition, and he did not object when the district court
determined that arson is a crime of violence and instructed
the jury to that effect. On appeal, Mr. Salas argues that
§ 924(c)(3)'s residual clause is unconstitutionally
Mr. Salas raises this issue for the first time on appeal, we
review for plain error. See United States v. Avery,
295 F.3d 1158, 1181-82 (10th Cir. 2002). "Plain error
occurs when there is (1) error, (2) that is plain, which (3)
affects substantial rights, and which (4) seriously affects
the fairness, integrity, or public reputation of judicial
proceedings." United States v. Price, 265 F.3d
1097, 1107 (10th Cir. 2001). "However, we apply this
rule less rigidly when reviewing a potential constitutional
error." United States v. James, 257 F.3d 1173,
1182 (10th Cir. 2001); accord United States v.
Benford, 875 F.3d 1007, 1016 (10th Cir. 2017). The
government concedes that if Mr. Salas can prove the first two
elements, the third and fourth would be satisfied, too.
Aplee. Br. at 12 n.11. The issues, then, are whether there
was error - that is, whether § 924(c)(3)(B) is
unconstitutionally vague - and, if so, whether that error was
Section 924(c)(3)(B) Is Unconstitutionally Vague
Sessions v. Dimaya, No. 15-1498, 2018 WL 1800371
(U.S. Apr. 17, 2018), the Supreme Court held that 18 U.S.C.
§ 16(b)'s definition of a "crime of
violence" is unconstitutionally vague in light of its
reasoning in Johnson v. United States, 135 S.Ct.
2551 (2015), which invalidated the similarly worded residual
definition of a "violent felony" in the Armed
Career Criminal Act (ACCA). 2018 WL 1800371, at *4; see
also Golicov v. Lynch, 837 F.3d 1065, 1072 (10th Cir.
2016) (ruling that § 16(b) "must be deemed
unconstitutionally vague in light of Johnson").
The Dimaya Court explained that the same two
features rendered the clauses unconstitutionally vague: they
"'require a court to picture the kind of conduct
that the crime involves in "the ordinary case, "
and to judge whether that abstraction presents' some
not-well-specified-yet-sufficiently-large degree of
risk." Dimaya, 2018 WL 1800371, at *9 (quoting
Johnson, 135 S.Ct. at 2557). The Court also rejected
several reasons for distinguishing § 16(b) from the
ACCA, namely that § 16(b) requires a risk that force be