United States District Court, S.D. Alabama, Southern Division
V. S. GRANADE, SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant's Motion to
Dismiss the Indictment for a due process violation (Doc. 26)
and the United States' Response (Doc.28).
Lopez-Candelaria was named in an indictment charging Illegal
Entry after Deportation in violation of Title 8, United
States Code, Section 1326(a) and (b)(2).
8, United States Code, Section 1326(a) provides:
(a) In general Subject to subsection (b),
any alien who--
(1) has been denied admission, excluded,
deported, or removed or has departed the United States while
an order of exclusion, deportation, or removal is
outstanding, and thereafter
(2) enters, attempts to enter, or is at any
time found in, the United States, unless (A) prior to his
reembarkation at a place outside the United States or his
application for admission from foreign contiguous territory,
the Attorney General has expressly consented to such
alien's reapplying for admission; or (B) with respect to
an alien previously denied admission and removed, unless such
alien shall establish that he was not required to obtain such
advance consent under this chapter or any prior Act,
shall be fined under Title 18, or imprisoned not more than 2
years, or both.
Indictment further alleges the penalty to be governed by
Notwithstanding subsection (a), in the case of any alien
described in such subsection- (2) whose
removal was subsequent to a conviction for commission of an
aggravated felony, such alien shall be fined under such
title, imprisoned not more than 20 years, or both.
Title 8, U.S.C. § 1101(a)(43)(F) defines the term
“aggravated felony” as . . . a crime of violence
(as defined in section 16 of Title 18, but not including a
purely political offense) for which the term of imprisonment
[is] at least one year.” 18 U.S.C. § 16 defines
“crime of violence” as
(a) An offense that has as an element the use, attempted use
or threatened use of physical force against the person or
property of another, or
(b) Any other offense that is a felony and that, by its
nature, involved a substantial risk that physical force
against the person or property of another may be used in the
course of committing the offense.
argues that the Indictment violates his rights under the Due
Process Clause of the Fifth Amendment to the Constitution
because the sentencing portion of the statute charged is void
for vagueness, citing Johnson v. United States, 135
S.Ct. 2551, 2557 (2015). In Johnson, the Supreme
Court held that imposing an increased sentence under the
residual clause of the Armed Career Criminal Act (ACCA)
violates the Constitution's guarantee of due process.
Although an analogy can be drawn between the ACCA's
residual clause and 18 U.S.C. § 16(b) -- which might
call into question any sentence imposed that relies on an
application of an enhancement grounded in §
16(b) in this case the applicable section
defining crime of violence is § 16(a), not § 16(b).
This is so because the prior conviction that potentially
qualifies this defendant for the enhancement is a misdemeanor
conviction out of Georgia for the offense of “battery
of a pregnant woman.” Because that offense is a
misdemeanor, it cannot be considered a crime of violence
under the residual clause, § 16(b), as that section
requires that the offense be a felony to ...