Sami v. Rodriguez, et al
ORDER on Motion to Dismiss 9 . Defendants' Motion to Dismiss 9 is DENIED WITH LEAVE TO REFILE on or before April 15, 2016. Should Defendants refile their motion, the parties should thoroughly and specifically address the impact of Johnson and the progenic courts of appeal cases referred to herein on 18 U.S.C. § 16(b) and on this case. Signed by Judge John L. Kane on 03/14/16.(jhawk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00746-JLK
LEON RODRIGUEZ, Director, U.S. Citizenship and Immigration Services, and
ANDREW LAMBRECHT, Field Office Director, U.S. Citizenship and Immigration Services,
ORDER ON MOTION TO DISMISS
Before me is Defendant’s Motion to Dismiss (Doc. 9). The only issue presented by this
motion is whether Plaintiff’s conviction of felonious restraint under Wyoming law qualifies as a
“crime of violence” under 18 U.S.C. § 16(b). Doc. 9-1 at 1; Doc. 11 at 2. Less than two weeks
before the motion was filed, the Supreme Court held in Johnson v. United States that the residual
clause of 18 U.S.C. § 924(e)(2)(B), which is similar to 18 U.S.C. § 16(b), is unconstitutionally
vague. 135 S. Ct. 2551, 2563 (2015). Defendants devote a brief footnote to discussing Johnson,
Doc. 9-1 at 5 n.2, but Plaintiff’s brief does not address Johnson at all.
Since the motion was fully briefed, several courts of appeal have held that 18 U.S.C. §
16(b) is also unconstitutionally vague after Johnson. See United States v. Vivas-Ceja, 808 F.3d
719, 723 (7th Cir. 2015); Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th Cir. 2015); United States v.
Gonzalez-Longoria, No. 15-40041, 2016 WL 537612, at *9 (5th Cir. Feb. 10, 2016), ordered
reheard en banc by 2016 WL 766980 (5th Cir. Feb. 26, 2016); but see United States v. Taylor,
No. 09-5517, 2016 WL 537444, at *32-35 (6th Cir. Feb. 11, 2016). In addition, the parties’
briefs analyze the question of whether felonious restraint is a crime of violence at least in part
using analysis and case law that has been superseded by Johnson. See, e.g., Doc. 12 at 3 (citing
James v. United States, 550 U.S. 192, 208 (2007)); Johnson, 135 S.Ct. at 2563 (overruling
James). Accordingly, Defendants’ Motion to Dismiss (Doc. 9) is DENIED WITH LEAVE TO
REFILE on or before April 15, 2016. Should Defendants refile their motion, the parties should
thoroughly and specifically address the impact of Johnson and the progenic courts of appeal
cases referred to herein on 18 U.S.C. § 16(b) and on this case.
Dated: March 14, 2016
s/ John L. Kane
Senior U.S. District Judge
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