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United States v. Salas

United States Court of Appeals, Tenth Circuit

May 4, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
CLIFFORD RAYMOND SALAS, Defendant-Appellant.

          Appeal from the United States District Court for the District of New Mexico (D.C. No. 2:12-CR-03183-RB-3)

          Howard Pincus, Assistant Federal Public Defender (and Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, Colorado, for Defendant-Appellant.

          Aaron 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.

          Before HOLMES, KELLY, and BACHARACH, Circuit Judges.

          KELLY, Circuit Judge.

         Defendant-Appellant 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 unconstitutionally vague.

         Background

         After 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, [1] 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.

         Section 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."

         At 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 vague.

         Discussion

         Because 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 plain.

         A. Section 924(c)(3)(B) Is Unconstitutionally Vague

         In 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 ...


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