Rehearing En Banc on Whether 18 U.S.C. § 16(b) Is Unconstitutionally Vague

United States v. Gonzalez-Longoria, No. 15-40041, 2016 WL 537612, at *1 (5th Cir. Feb. 10, 2016) (Jolly, Costa; Higginson dissenting)

A divided panel held that 18 U.S.C. § 16(b) is unconstitutionally vague.  After examining the Johnson factors, the majority determined:  

Section 16's standard is imprecise in all the ways that the ACCA's standard was imprecise; in each case, however, it is arguably at least slightly less imprecise. The ACCA's standard referenced a confusing list of examples; § 16's text references no examples at all. The ACCA's standard encompasRehses a broad scope, as it considers post-offense conduct; so does § 16's standard, though its scope may be at least slightly limited by Leocal. The ACCA had occasioned judicial disagreement; so has § 16, though less. Comparing § 16's standard to the ACCA's standard, all we can say with confidence is that § 16's standard is imprecise, although not quite as imprecise as the ACCA's standard. 

Our course forward is clear, however, upon considering that Johnson was not a case at the very margins of vagueness and non-vagueness. Johnson did not hold that the ACCA's standard represents a minimum bar for precision; that is, Johnson did not hold that any standard slightly more precise than the ACCA's is acceptably precise. To the contrary, Johnson held that the ACCA's standard was so imprecise that the Court was justified in departing from stare decisis. Presumably, therefore, a marginally more precise standard could be problematically vague. Section 16's standard is that marginally more precise—yet still imprecise—standard.

Thus, considering each of the arguments and nuances brought to our attention, we hold that § 16 is unconstitutionally vague because, at bottom, § 16 requires courts both to imagine an ordinary/archetypical case and then to judge that imagined case against imprecise standard. Under Johnson, this means that § 16 is unconstitutionally vague, and we so hold.

On the Court’s own motion, a majority of the circuit judges voted to rehear this case en banc.  Oral argument is tentatively scheduled for the week of May 23, 2016.  Stay tuned.