United States Court of Appeals, District of Columbia Circuit
Petition for Panel Rehearing in Nos. 15-3021 and 15-3023
Before: Henderson, Kavanaugh [*] and Millett, Circuit Judges.
convicted defendants Pablo Lovo and Joel Sorto of conspiring
to interfere with interstate commerce by robbery, 18 U.S.C.
§ 1951, and using, carrying or possessing a firearm
during a crime of violence, 18 U.S.C. § 924(c). Lovo and
Sorto appealed their convictions. United States v.
Eshetu, 863 F.3d 946 (D.C. Cir. 2017). In the main, we
rejected their claims, id. at 951-58 & n.9,
remanding only for further consideration of two
ineffective-assistance challenges, id. at 957-58. As
relevant here, we rejected their claim that the
"residual clause" "of the statutory
crime-of-violence definition that affects them-set forth in
18 U.S.C. § 924(c)(3)(B)-is unconstitutionally
vague." Id. at 952; see id. at 952-56.
we issued our decision, the United States Supreme Court held
that 18 U.S.C. § 16(b)-the "residual clause"
of section 16's crime-of-violence definition-is
unconstitutionally vague. Sessions v. Dimaya, 138
S.Ct. 1204, 1210 (2018). With the support of the Federal
Public Defender as amicus curiae, Lovo and Sorto now seek
rehearing. They argue that Dimaya dictates
vacatur of their section 924(c) convictions. We agree.
the residual clause that Dimaya struck down,
"[t]he term 'crime of violence' means" an
"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." 18 U.S.C. § 16(b). Under
the residual clause at issue here, "the term 'crime
of violence' means an 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." 18 U.S.C.
§ 924(c)(3)(B). To borrow a phrase, the two statutes are
"materially identical." Gov't's Br. 12,
Sessions v. Dimaya, S.Ct. No. 15-1498 (Nov. 14,
2016); see Dimaya, 138 S.Ct. at 1241 (Roberts, C.J.,
dissenting) ("§ 16 is replicated in . . . §
924(c)"). We therefore discern no basis for a different
result here from the one in Dimaya. Accord
United States v. Salas, 889 F.3d 681, 684-86 (10th Cir.
2018) (invalidating section 924(c)(3)(B) and explaining why
its textual similarity with section 16(b) is dispositive). In
short, section 924(c)(3)(B) is void for vagueness.
Dimaya requires us to abjure our earlier anlaysis to
government concedes "that the panel should grant
rehearing in order to address the impact of
Dimaya." Appellee's Suppl. Br. 3. But it
urges us to "construe § 924(c)(3)(B) to require a
case-specific approach that considers appellants' own
conduct, rather than the 'ordinary case' of the
crime." Id. at 8. In the government's
telling, this construction is a necessary means of avoiding
"the constitutional concerns that [a categorical]
interpretation would create following Dimaya."
Id. Whatever the clean-slate merits of the
government's construction, we as a panel are not at
liberty to adopt it: circuit precedent demands a categorical
approach to section 924(c)(3)(B), see United States v.
Kennedy, 133 F.3d 53, 56 (D.C. Cir. 1998), and one panel
cannot overrule another, see LaShawn A. v. Barry, 87
F.3d 1389, 1395 (D.C. Cir. 1996) (en banc) ("That power
may be exercised only by the full court, either through an
in banc decision . . . or pursuant to the more
informal practice adopted in Irons v. Diamond, 670
F.2d 265, 268 n.11 (D.C. Cir. 1981).").
government says this "panel is not bound by
Kennedy" because Dimaya, "an
intervening Supreme Court decision," "casts
doubt" on it. Appellee's Suppl. Br. 24 (internal
quotation omitted). We disagree. Dimaya nowise calls
into question Kennedy's requirement of a
categorical approach. To the contrary, a plurality of the
High Court concluded that section 16(b)-which, again, is
textually parallel with section 924(c)(3)(B)-is "[b]est
read" to "demand a categorical approach"
"even if that approach [cannot] in the end
satisfy constitutional standards." Dimaya, 138
S.Ct. at 1217 (plurality opinion) (emphasis added). If
anything, that analysis reinforces Kennedy's
precedential viability. Granted, "Dimaya did
not include any holding by a majority of the Court
that § 16(b) requires a categorical approach, and it
leaves open the same question for § 924(c)(3)(B)."
Appellee's Suppl. Br. 8 (emphasis added). But the fact
that Dimaya did not definitively resolve the matter
only underscores our point: Dimaya cannot be read to
mean that Kennedy "is clearly an incorrect
statement of current law." United States v.
Dorcely, 454 F.3d 366, 373 n.4 (D.C. Cir. 2006) (noting
this criterion for overruling circuit precedent, with full
court's endorsement, via panel decision) (internal
quotation omitted); see Policy Statement on En
Banc Endorsement of Panel Decisions 1 (Jan. 17, 1996),
we grant rehearing for the limited purpose of vacating
Lovo's and Sorto's section 924(c) convictions in
light of Dimaya. We do not otherwise reconsider or
disturb our decision in Eshetu. We remand to the
district court for further proceedings consistent with this
opinion and the unaffected portions of Eshetu.
[*]Judge Kavanaugh did not
participate in this disposition.
 More precisely, Lovo petitions for
rehearing and Sorto moves to adopt his and amicus's
arguments. See Fed. R. App. P. 28(i). We grant
Sorto's motions, which the government does not
 In vacating the section 924(c)
convictions, we express no view-because the government
advances no argument-about whether conspiracy in violation of
18 U.S.C. § 1951 is a crime of violence under the
"elements clause" in section 924(c)(3)(A).
Appellee's Suppl. Br. 2 n.2 (conceding that ...