United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief Judge.
Court has before it a motion to dismiss the § 2255
Petition filed by David Von Bargen. In his Petition, Von
Bargen asks the Court to set aside his conviction for
violating 18 U.S.C. § 924(c) because the Supreme Court
has recently held that a similar statute is
unconstitutionally vague. The Government objects, and seeks
dismissal of the Petition, on the ground that the Supreme
Court decision is, as a matter of law, not applicable to this
case. The Court agrees with the Government and will grant its
motion for the reasons expressed below.
Bargen was charged with destroying Government property (a
pickup truck and ATV), setting fire to a lumber warehouse,
and possessing stolen firearms. He and a co-defendant used
Molotov Cocktails to set fire to the vehicles and the
warehouse in an attempt to divert police away from their
burglary of a pawnshop in Fruitland.
a jury trial, Von Bargen was convicted on four counts, but
just one of those is at issue here: Count One, alleging that
he violated 18 U.S.C. § 924(c)(1)(A) by using or
carrying a firearm “in relation to any crime of
violence.” The term “crime of violence” is
defined in § 924(c)(3)(B), and 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
language, Von Bargen argues, is unconstitutionally vague, and
he asks the Court to set aside his conviction on Count One.
Setting aside that conviction would have a substantial impact
on Von Bargen's sentence. Of his total sentence of 444
months, 384 months were imposed for the conviction on §
Ninth Circuit has interpreted identical language in a
decision that is presently before the Supreme Court, having
been argued on February 20, 2017. Dimaya v. Lynch,
803 F.3d 1110 (9th Cir. 2015) cert. granted Lynch v.
Dimaya, 139 S.Ct. 31 (Sept. 29, 2016). The Supreme Court
has not yet issued its decision.
Dimaya, a Philippine citizen was convicted of
burglary in California and ordered deported because his crime
was a “crime of violence” under 18 U.S.C. §
16(b). That statute defined “a crime of violence”
as 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.” That definition is
identical to the definition in § 924(c)(3)(B).
divided panel held in Dimaya that this language
suffered from the same vagueness flaws as language struck
down in Johnson v. U.S., 135 S.Ct. 2551(2015). The
Dimaya decision held that under the Johnson
test, § 16(b)'s language (1) “leaves grave
uncertainty about how to estimate the risk posed by a
crime”; and (2) “leaves uncertainty about how
much risk it takes for a crime to qualify as a violent
crime.” Id. at 2557-58.
dissent in Dimaya picked apart this analysis,
relying on three observations. First, there is an obvious
risk that any time a burglar enters a home, he may encounter
the occupant and use physical force - there is no uncertainty
about that risk. Dimaya, 803 F.3d at 1124, 1128.
Second, the statutory language in Johnson contained
four enumerated crimes intended as examples but that only
created further confusion, Johnson, 135 S.Ct. at
2558, while § 16(b) contains no list of confusing
examples. Dimaya, 803 F.3d at 1127. Third,
Johnson expressly limited the effect of its ruling
to the statute before it, holding that “we do not doubt
the constitutionality of laws that call for the application
of a qualitative standard such as ‘substantial
risk' to real-world conduct.” Johnson, 135
S.Ct. at 2561. The “substantial risk” phrase is
precisely the language used in § 16(b), and so it
appears the Supreme Court did not intend to extend
Johnson to the many statutes like § 16(b) that
use such language.
three of these observations apply with equal strength to
§ 924(c)(3)(B). Indeed, the Circuit courts that examined
§ 924(c)(3)(B) have all concluded that it is not
unconstitutionally vague under Johnson. See U.S. v.
Prickett, 839 F.3d 697, 699-700 (8th Cir. 2016)
(“Johnson does not render § 924(c)(3)(B)
unconstitutionally vague”); U.S. v. Hill, 832
F.3d 135, 137, 145-50 (2d Cir. 2016) (“we conclude that
the Supreme Court's explanation for its conclusion in
Johnson renders that case inapplicable to [§
924(c)(3)(B)]”); U.S. v. Taylor, 814 F.3d 340,
375-79 (6th Cir. 2016); U.S. v. Davis, 2017 WL
436037, at *2 (5th Cir. Jan. 31, 2017) (“We join
several other circuits in concluding that Johnson
does not invalidate § 924(c)(3)(B).”). Those
decisions all recognize that the Supreme Court very carefully
limited the precedential scope of Johnson, and that
any attempt to apply it to language like that in §
924(c)(3)(B) would be an improper expansion of its
holding. That may explain why the Supreme Court
granted certiorari in Dimaya.
rate, Dimaya does not compel the result here because
it was based on a different statute. See
Mondragon-Hernandez v. U.S., 2017 WL 1080600 (S.D. Cal.
March 22, 2017) (holding that § 924(c)(3)(B) is not
unconstitutionally vague despite Dimaya). On the
precise question before the Court - whether §
924(c)(3)(B) is unconstitutionally vague - the Court finds
most persuasive those cases ...