USA v. Yahya Bilal

Filing

OPINION filed : We VACATE Bilal s sentence and REMAND the case to the district court for resentencing in light of Johnson, decision not for publication. Richard F. Suhrheinrich and Richard Allen Griffin, Circuit Judges: and William H. Stafford (Authoring), U.S. District Judge.

Case: 14-4190

Document: 27-1

Filed: 07/29/2015

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0533n.06
No. 14-4190
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

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Plaintiff-Appellee,
v.
YAHYA BILAL,
Defendant-Appellant.

FILED
Jul 29, 2015
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE NORTHERN
DISTRICT OF OHIO
OPINION

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BEFORE: SUHRHEINRICH and GRIFFIN, Circuit Judges; STAFFORD, District Judge.*
STAFFORD, District Judge. Yahya Bilal appeals the sentence imposed by the district
court following his guilty plea to two counts of being a felon in possession of a firearm in violation
of 18 U.S.C. § 922(g)(1). Bilal was sentenced to a mandatory minimum sentence of fifteen years
under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii). Bilal contends that
the district court improperly counted—as one of three violent felonies under the ACCA—a 1995
Ohio conviction for attempted aggravated robbery with firearm specification and, therefore, erred
in sentencing him as an armed career offender.
The ACCA imposes a mandatory minimum sentence of fifteen years’ imprisonment upon
any individual who violates § 922(g)(1) and has three previous convictions for a “violent felony.”

*

The Honorable William H. Stafford, Jr., Senior United States District Judge for the
Northern District of Florida, sitting by designation.

Case: 14-4190

Document: 27-1

Filed: 07/29/2015

Page: 2

No. 14-4190, United States v. Bilal
18 U.S.C. § 924(e)(1). “Violent felony” is defined in the ACCA as
any crime punishable by imprisonment for a term exceeding one year . . . that—
(I) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of
physical injury to another.
Id. § 924(e)(2)(B) (emphasis added). The language italicized above is known as the ACCA’s
residual clause.
Bilal’s 1995 offense did not include “as an element the use, attempted use, or threatened use
of physical force against the person of another” and so could not qualify as a “violent felony” under
§ 924(e)(2)(B)(I). It was also not one of the enumerated crimes listed in § 924(e)(2)(B)(ii), namely
burglary, arson, extortion, or a crime involving the use of explosives. Consequently, to qualify as
a “violent felony” under the ACCA, Bilal’s 1995 conviction for attempted aggravated robbery had
to do so under the ACCA’s residual clause.
In Johnson v. United States, No. 13–7120, 2015 WL 2473450 (June 26, 2015), the Supreme
Court held that the ACCA’s residual clause violates the Constitution’s guarantee of due process
because it is unconstitutionally vague. Id. at *11. We are required to apply Johnson to Bilal’s case.
See Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (holding that “a new rule for the conduct of
criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct
review or not yet final”). Under Johnson, Bilal’s 1995 conviction does not qualify as a predicate
offense under the ACCA. We accordingly VACATE Bilal’s sentence and REMAND the case to the
district court for resentencing in light of Johnson.
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