govinfo:USCOURTS-azd-2_12-cr-01263-4

1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
 
WO 
 
 
 
 
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF ARIZONA 
 
United States of America, 
 
Plaintiff, 
 
v. 
 
Ahmed Alahmedalabdaloklah, 
 
Defendant.
No. CR-12-01263-PHX-NVW
 
ORDER 
 
Before the Court is Defendant’s Motion to Dismiss Counts Three and Four for 
Failure to State an Offense Due to Absence of a Predicate Crime of Violence (Doc. 177). 
I. LEGAL STANDARD 
The indictment must be “a plain, concis e, and definite writte n statement of the 
essential facts constituting the offense char ged.” Fed. R. Crim. P. 7(c)(1). “An 
indictment should be read in its entirety, construed according to common sense, and 
interpreted to include facts which are nece ssarily implied.” United States v. Berger, 473 
F.3d 1080, 1103 (9th Cir. 2007). 
In ruling on a pretrial motion under Rule 12(b)(3)(B)(v) of th e Federal Rules of 
Criminal Procedure to dismiss an indictment fo r failure to state an offense, the district 
court is bound by the four corners of the indictment. United States v. Boren , 278 F.3d 
911, 914 (9th Cir. 2002). In analyzing whet her a cognizable offense has been charged, 
the court must accept as true the allegations in the indictment. Id. The court should not 
consider evidence not appearing on the face of the indictment. Id. 

 
 
- 2 - 
 
 
 
 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
II. BACKGROUND 
Count Three of the Second Superseding Indictment charges Defendant with 
Possession of a Destructive Device in Furtherance of a Crime of Violence and Aiding and 
Abetting in violation of 18 U. S.C. §§ 924(c)(1)(A), (B)(ii), a nd 2. It alleges that from 
January 2005 to July 2010, Defendant aide d and abetted other pe rsons “to knowingly 
possess a firearm, that is, a de structive device, in furtherance of a crime of violence for 
which they may be prosecuted in a court of th e United States, that is Conspiracy to Use a 
Weapon of Mass Destruction, as set forth in Count One of this Indictment, and 
Conspiracy to Maliciously Da mage or Destroy U.S. Government Property by Means of 
an Explosive, as set forth in Count Two of this Indictment.” (Doc. 232 at 5.) Section 
924(c)(1)(A) imposes an a dditional sentence for a crim e of violence committed by a 
person who uses or carries a fi rearm during and in relation to the crime of violence or 
who possesses a firearm in furt herance of a crime of violen ce. Section 92 4(c)(1)(B)(ii) 
imposes an additional sentence if the firearm is a destructive device. 
Count Four charges Defendant with Conspiracy to Possess a Destructive Device in 
Furtherance of a Crime of Violence in violati on of 18 U.S.C. § 924(o). It alleges that 
from January 2005 to July 2010, Defendant “did knowingly combine, conspire, 
confederate, and agree together with other pe rsons . . . to commit an offense under Title 
18, United States Code, Section 924(c), that is , to possess a firearm, that is, a destructive 
device, in furtherance of a crime of violence for which he may be prosecuted in a court of 
the United States, that is Conspiracy to Use a Weapon of Mass Destruction, as set forth in 
Count One of this Indictment, and Conspiracy to Maliciously Dama ge or Destroy U.S. 
Government Property by Mean s of an Explosive, as set forth in Count Two of this 
Indictment.” ( Id. at 5-6.) Section 9 24(o) makes it illegal to conspire to commit an 
offense under § 924(c) and imposes a ma ximum life sentence if the firearm is a 
destructive device. 

 
 
- 3 - 
 
 
 
 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
Count One charges Defendant with Cons piracy to Use a Weapon of Mass 
Destruction in violation of 18 U.S.C. § 2332a( a)(1) and (3). It alleges that from January 
2005 to July 2010, Defendant knowingly conspired and agreed with other persons, 
without lawful author ity, to use a weapon of mass destruction, i.e., a destructive device, 
against nationals of the United States, while such nationals were outside the United 
States, and against property that was owne d, leased, and used by the United States 
outside the United States. It specifica lly alleges that Defendant designed and 
manufactured parts for wireless initiation sy stems to be used in radio-controlled 
improvised explosive devices and supplied pa rts to an Iraqi in surgent group that 
employed radio-controlled improvised explosiv e devices against United States military 
personnel and vehicles in Iraq. Section 2332a makes it illegal for a person without lawful 
authority to use, threaten, or attempt or co nspire to use a weapon of mass destruction 
against a national of the United States while the national is outside the United States or to 
do so against any property that is owned, leas ed, or used by the United States or by any 
department or agency of the United States, whether the property is within or outside the 
United States. 
Count Two charges Defendant with Conspiracy to Maliciously Damage or Destroy 
U.S. Government Property by Means of an Explosive in viol ation of 18 U.S.C. 
§ 844(f)(1), (2), and (n). It alleges that fro m January 2005 to Ju ly 2010, Defendant 
knowingly conspired and agreed with other persons to “mal iciously damage, destroy, 
attempt to damage, attempt to destroy, vehicl es, used by the United States Military in 
Iraq, in whole and in part owned, or poss essed by the United States Department of 
Defense, a department of the United States, by means of explosives.” Section 844(f)(1) 
sets minimum and maximum sentences for anyone who maliciously damages or destroys, 
or attempts to damage or destroy, by means of an e xplosive, a vehicle owned or 
possessed by the United States. Section 844(f)(2) increases th e sentencing range if the 
conduct penalized by § 844(f)(1) directly or proximately caused personal injury or 
created a substantial risk of injury to any person. Section 844(n) provides that, with 

 
 
- 4 - 
 
 
 
 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
certain exceptions, a person who conspires to commit any offense defi ned in chapter 40 
of Title 18 “shall be subject to the same penaltie s (other than the pena lty of death) as the 
penalties prescribed for the offense the commission of whic h was the object of the 
conspiracy.” 
The definition of “destructive device” in cludes “any explosive, incendiary, or 
poison gas,” including bomb, grenade, mine, and certain rockets and missiles. 18 U.S.C. 
§ 921(a)(4). The term “firearm” includes any destructive device. 18 U.S.C. § 921(a)(3). 
The term “weapon of mass destruction” incl udes any destructive device as defined in 
§ 921. 18 U.S.C. § 2332a(c). 
III. ANALYSIS 
A. Counts Three and Four of the Second Superseding Indictment Are Not 
Time-Barred. 
Defendant’s Motion to Dism iss contended that Counts Three and Four failed to 
state offenses because they alleged possessi on of a destructive device “during and in 
relation to a crime of violence” instead of “in furtherance of a crime of violence” as 
stated in 18 U.S.C. § 924(c)(1)(A). On Ma y 30, 2017, a grand jury returned the Second 
Superseding Indictment (Doc. 232), which am ended the pleading language in Counts 
Three and Four from “during and in relation to a crime of violence” to “in furtherance of 
a crime of violence.” In his reply brief, Defe ndant contends that the five-year statute of 
limitation ceased to toll because the Second Superseding Indict ment broadened or 
substantially amended the original charges. 
Generally, the return of an indictment to lls the statute of limitations as to the 
charges within the indictment. United States v. Liu , 731 F.3d 982, 996 (9th Cir. 2013). 
Tolling continues when a superseding indictme nt on the same charges is returned while 
the previous indictment is pending, but it does not continue for charges in the superseding 
indictment that broaden or substantially amend the charges in the original indictment. Id. 
To determine whether the charges have been broadened or substantially amended, a court 
may consider whether the additional pleadings allege violations of a different statute, 

 
 
- 5 - 
 
 
 
 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
contain different elements, rely on differe nt evidence, or expose the defendant to a 
potentially greater sentence. Id. at 996-97. The primary co nsideration is whether the 
prior indictment gave the defendant notice th at he will be called to account for certain 
activities and should prepare a defense. Id. at 997. 
The Second Superseding Indictment did no t alter the statutes, elements, evidence, 
potential sentences, or trial preparation re quired and/or implicated by the previous 
indictment. It did not broade n or substantially amend any ch arges. Therefore, tolling of 
the statute of limitations continues, and Counts Three and Four are not time-barred. 
B. Section 924(c)(3)(B) Is Not Unconstitutionally Vague. 
The Government violates the Fifth Ame ndment’s Due Process Clause by “taking 
away someone’s life, liberty, or property under a criminal la w so vague that it fails to 
give ordinary pe ople fair notice of the conduct it punishes, or so standardless that it 
invites arbitrary enforcement.” Johnson v. United States , __ U.S. __, 135 S. Ct. 2551, 
2556 (2015). The protection of the Fifth Amendment’s Due Process Clause applies not 
only to statutes defining elements of crimes , but also to statutes fixing sentences. Id. at 
2557. 
Defendant contends that Counts Three an d Four fail to state an offense because 
their predicate offenses rely on an unc onstitutionally vague defi nition of “crime of 
violence.” Both Counts Three and Four alle ge Defendant violated 18 U.S.C. § 924(c), 
which increases the sentence for committing a crime of violence for any person who uses 
or carries a firearm during and in relation to the crime of violence or who possesses a 
firearm in furtherance of a crime of violen ce. For the purposes of § 924, a “crime of 
violence” is a felony that either (A) has as an element the use, attempted use, or 
threatened use of physical force, or (B) “by its nature, involves a substantial risk that 
physical force against the person or property may be used in the course of committing the 
offense.” 18 U.S.C. § 924(c)(3 ). Defendant contends that Counts One and Two do not 
allege conduct to satisfy § 924(c)(3)(A), whic h the Government does not dispute. Thus, 

 
 
- 6 - 
 
 
 
 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
the only question is whet her the definition of crim e of violence provided by 
§ 924(c)(3)(B) is unconstitutionally vague. 
1. Section 924(c)(3)(B) Applies Without Uncertainty in the 
Ordinary Case. 
Section 924(c)(3) defines “crime of viol ence” specifically, and only, for the 
purposes of § 924(c) as follows: 
(3) For purposes of this subsection the term “crime of violence” means an 
offense that is a felony and-- 
(A) has as an element the use, atte mpted use, or threatened use of 
physical force against the person or property of another, or 
(B) that by its nature, involves a substantial risk that physical force 
against the person or property of a nother may be used in the course 
of committing the offense. 
18 U.S.C. § 924(c)(3 ). Subsection (A) is referred to as the “use-of-force clause.” 
Subsection (B) is referred to as the “risk-of-force clause.” Only the “risk-of-force clause” 
is at issue here. 
Conviction for a “crime of violence” is a predicate for application of 
§ 924(c)(1)(A). To determine whether the underlying conviction is a “crime of violence” 
as defined by § 924(c)(3), the Ninth Circuit applies the “categorical approach” laid out in 
Taylor v. United States, 495 U.S. 575, 600 (1990): 
Under this approach, we do not look to the particular facts underlying the 
conviction, but compare the elements of the statute forming the basis of the 
defendant’s conviction with elements of a “crime of violence.” The 
defendant’s crime cannot categorically be a “crime of violence” if the 
statute of conviction punishes any conduct not enco mpassed by the 
statutory definition of a “crime of violence.” 
United States v. Benally, 842 F.3d 350, 352 (9th Cir. 2016) (internal quotation marks and 
citations omitted). “The legi slative history to section 924(c) indicates that Congress 
intended a categorical approach to the ‘crime of violence’ language in subsection (3)(B).” 
United States v. Amparo , 68 F.3d 1222, 1225 (9th Cir. 1995). Under the categorical 

 
 
- 7 - 
 
 
 
 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
approach, deciding whether a cl ause covers a crime “requires a court to picture the kind 
of conduct that the crime involves in ‘the ordinary case.’” Johnson, 135 S. Ct. at 2557. 
Here, two predicate crimes are alleged for Counts Three and Four: Conspiracy to 
Use a Weapon of Mass Destruction in violati on of 18 U.S.C. § 2332a(a)(1) and (3), and 
Conspiracy to Maliciously Da mage or Destroy U.S. Government Property by Means of 
an Explosive in violation of 18 U.S.C. § 844(f)(1), (2), and (n). The categorical approach 
requires determination for each statute wh ether it punishes conduct that is not 
encompassed within the term “crime of vi olence” as defined by the “risk-of-force 
clause.” That is, does the statute punish any conduct that does no t involve “a substantial 
risk that physical force may be used in the course of committing the offense”? 
Section 2332a(a)(1) requires imprisonment of “[a] person who, without lawful 
authority, uses, threatens, or attempts or conspires to use, a weapon of mass destruction—
(1) against a national of the United States while such national is outside the United 
States.” Section 2332a(a)(3) requires imprisonment of “[a] person who, without lawful 
authority, uses, threatens, or attempts or conspires to use, a weapon of mass destruction . . 
. (3) against any property that is owned, leas ed or used by the United States or by any 
department or agency of the United States, whether the property is within or outside the 
United States.” Section 2332 a(c)(2) defines the term “weapon of mass destruction” to 
mean: 
(A) any destructive device as defined in section 921 of this title; 
(B) any weapon that is designed or intended to cause death or serious 
bodily injury through th e release, dissemination, or impact of toxic or 
poisonous chemicals, or their precursors; 
(C) any weapon involving a biological agent, toxin, or vector (as those 
terms are defined in section 178 of this title); or 
(D) any weapon that is designed to re lease radiation or radioactivity at a 
level dangerous to human life. 
“Destructive device” means “any explosive, in cendiary, or poison gas,” “any type of 
weapon . . . which will, or which may be re adily converted to, ex pel a projectile by the 

 
 
- 8 - 
 
 
 
 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
action of an explosive or other propellant, an d which has any barrel with a bore of more 
than one-half inch in diameter,” and “any combination of parts either designed or 
intended for use in converting any device into any destructive device described in 
subparagraph (A) or (B) and from which a destructive device may be readily assembled.” 
18 U.S.C. § 921(a)(4). 
The kind of conduct that a violation of § 2332a(a)(1) and/or (3) involves in the 
ordinary case is the use, attempt to use, or conspiracy to use a weapon of mass 
destruction against a person and/or property. The ordinary case under § 2332a(a)(1) or 
(3) necessarily involves “a subs tantial risk that physical forc e may be used in the course 
of committing the offense.” Therefore, § 23 32a(a)(1) and (3) do no t punish any conduct 
outside of the definition of “crime of violence” under the risk-of-force clause. 
Section 844(f)(1) requires imprisonment of anyone who “maliciously damages or 
destroys, or attempts to damage or destroy, by means of fire or an explosive, any 
building, vehicle, or other personal or real property in whole or in part owned or 
possessed by, or leased to, the United States, or any department or agency thereof, or any 
institution or organization recei ving Federal financial assistance.” Section 844(f)(2) 
increases the term of impris onment for anyone who engages in such conduct and, as a 
result, causes personal injury or creates a substantial risk of injury to any person. Section 
844(n) provides that a person who conspires to commit any such offense shall be subject 
to the same penalties. The ki nd of conduct that a violati on of § 844(f) involves in the 
ordinary case is the actual or attempted malicious damage or destruction of property by 
fire or an explosive. The ordinary case under § 844(f) necessarily involves “a substantial 
risk that physical force may be used in the course of committing the offense.” Therefore, 
§ 844(f)(1), (2), and (n) do not punish any conduct outside of the defi nition of “crime of 
violence” under the risk-of-force clause. 
Under a categorical approach, the term “cri me of violence” as defined by the risk-
of-force clause plainly applies to the crimes alleged as predicates to Counts Three and 
Four. It does not create any uncertainty rega rding how to estimate the amount of risk or 

 
 
- 9 - 
 
 
 
 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
how much risk is “substantial.” If a person uses, attempts to use, or conspires to use a 
weapon of mass destruction or an explosive against a person or property, there certainly 
is a substantial risk that physical force may be used. 
2. Johnson Does Not Require Finding the Risk-of-Force Clause 
Unconstitutionally Vague. 
The Supreme Court held that impos ing an increased sentence under 
§ 924(e)(2)(B)(ii) violates the Constitu tion’s guarantee of due process. Johnson, 135 S. 
Ct. at 2563. Section 922(g) prohibits ce rtain persons from tran sporting or possessing a 
firearm. Section 924(e)(1) enhances the sent ence for a person who violates § 922(g) and 
also has three previous convictions for a violen t felony or serious dr ug offense. Section 
924(e)(2)(B) defines “violent felony” as follows: 
(B) the term “violent felony” means any crime punishable by imprisonment 
for a term exceeding one year, . . ., that-- 
(i) has as an element the use, atte mpted use, or threatened use of 
physical force against the person of another; or 
(ii) is burglary, arson, or extorti on, involves use of explosives, or 
otherwise involves conduct that pr esents a serious potential risk of 
physical injury to another. 
The italicized portion of subsection (B)(ii) is referred to as the “residual clause.” 
In Johnson, the Supreme Court found that the co mbination of two features of the 
residual clause make it unconstitutionally va gue: (1) uncertainty about how to measure 
the potential risk of physical injury posed by a crime and (2) uncertainty about how much 
risk it takes for a crime to qualify as a violen t felony. 135 S. Ct. at 2557. The Supreme 
Court noted that the residual clause links condu ct presenting a “serious potential risk of a 
physical injury” to a confusing list of exampl es including burglary, arson, extortion, and 
use of explosives: “The phr ase ‘shades of red,’ standing alone, does not generate 
confusion or unpredictability; but the phrase ‘fire-engine red, light pink, maroon, navy 
blue, or colors that otherwise involve shades of red’ assuredly does so.” Id. at 2561. 
Johnson is readily distinguished from the present case and has been by the Second, 
Fifth, Sixth, Eighth, and Eleventh Circuits, each of which, after Johnson, held that 

 
 
- 10 - 
 
 
 
 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
§ 924(c)(3)(B) is not unconstitutionally vague. United States v. Hill, 832 F.3d 135, 145-
50 (2d Cir. 2016) (the risk -of-force clause does not involve the double-layered 
uncertainty of the residua l clause as found in Johnson, contains “no mystifying list of 
offenses and no indeterminate ‘otherwise’ phraseology,” and is materially different, 
narrower, and easier to construe than the residual clause); United States v. Garcia , 857 
F.3d 708, 711 (5th Cir. 2017) (holding the risk-of-force clau se is not unconstitutionally 
vague because it is similar to § 16(b), which it had previous ly held not unconstitutionally 
vague); United States v. Taylor , 814 F.3d 340, 375-79 (6th Cir. 2016) (the risk-of-force 
clause is considerably narrower than the residual clause and much of Johnson’s analysis 
does not apply to the risk-of-force clause); United States v. Prickett , 839 F.3d 697, 700 
(8th Cir. 2016) ( Johnson does not render the risk-of-fo rce clause unconstitutionally 
vague); Ovalles v. United States , __ F.3d __, 2017 WL 2829371, at * 1 (11th Cir. June 
30, 2017) ( Johnson does not apply to or invalid ate the risk-of-force clause). But see 
United States v. Cardena , 842 F.3d 959, 996 (7th Cir. 2016) (holding the risk-of-force 
clause is unconstitutionally va gue because it is si milar to § 16(b), which the Seventh 
Circuit had previously held unconstitutionally vague because it is si milar to the residual 
clause, which Johnson held unconstitutionally vague). 
As the Eleventh Circuit explained: 
In concluding that Johnson does not apply to or invalidate § 924(c)(3)(B), 
the Eighth, Second, and Sixth Circuits have found and analyzed significant 
material textual differences between the definition of “crime of violence” in 
§ 924(c)(3)(B) (a contemporaneous felony 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 commit ting the offense”) and the definition of 
“violent felony” in the ACCA’s § 924(e)(2)(B) (a prior remote felony that 
“otherwise involves conduct that presents a serious potential risk of 
physical injury to another”). 
Ovalles, 2017 WL 2829371, at *5. The textual di fferences make the definition of “crime 
of violence” in the risk-of-force clause narrower than the definition of “violent felony” in 
the residual clause. Id. Another difference is the textual link in the residual clause by the 

 
 
- 11 - 
 
 
 
 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
word “otherwise” to four dive rse crimes of burglary, arson, extortion, or crimes that 
involve explosives, which forces courts to inte rpret “serious potential risk” in light of the 
four enumerated crimes. Id. In contrast, the risk-of-fo rce clause does not require 
analogizing the level of risk involved in a defendant’s conduct to burglary, arson, 
extortion, or the use of explosives. Id. Further, the residual clause applies to prior 
convictions; the risk-of-force clause considers the risk that physical force may be used in 
the course of committing the offense. Id. at *6. The Eleventh Circuit agreed with the 
Second Circuit that Johnson focused on the residual clause’s “double-layered 
uncertainty” that required courts to estimate the potential risk of physical injury posed by 
the “ordinary case” and to cons ider how the risk of inju ry compared to the four 
enumerated crimes—neither of which are implicated by the risk-of-force clause. Id. 
For all of these reasons, Johnson does not require finding the risk-of-force clause 
unconstitutionally vague. 
3. Dimaya Does Not Require Findin g the Risk-of-Force Clause 
Unconstitutionally Vague. 
Following Johnson, the Ninth Circuit held that 18 U.S.C. § 16(b) (as incorporated 
in 8 U.S.C. § 1101(a)(43)(F ) of the Immigration and Nationality Act (“INA”)) is 
unconstitutionally vague. Dimaya v. Lynch , 803 F.3d 1110, 11 20 (9th Cir. 2015), cert. 
granted, Lynch v. Dimaya , 137 S. Ct. 31 (Sept. 29, 2016 ). The INA provides for the 
removal of non-citizens who ha ve been convicted of an “a ggravated felony.” 8 U.S.C. 
§ 1227(a)(2)(A)(iii). Section 1101(a)(43)(F) defines the term “aggr avated felony” to 
mean a “crime of violence” as de fined in § 16 for which the te rm of imprisonment is at 
least one year. Section 16 defines the term “crime of violence” to mean: 
(a) an offense that has as an element the use, atte mpted use, or threatened 
use of physical force against the person or property of another, or 
(b) any other offense that is a felo ny 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. 

 
 
- 12 - 
 
 
 
 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
The Ninth Circuit compared § 16(b) to the residual clause declared unconstitutional in 
Johnson and concluded that Ҥ 16(b) is subj ect to identical unpredictability and 
arbitrariness as [the] residual clause.” Dimaya, 803 F.3d at 1115. The court expressly 
limited its holding to the constitutionality of § 16(b) as incorpor ated in 8 U.S.C. 
§ 1101(a)(43)(F). 
Even if Dimaya had not limited its holding to the INA context, the 
constitutionality of § 16(b) do es not necessarily determin e the constitutionality of the 
risk-of-force clause at issue here. As the Eleventh Circuit explained: 
[T]he task in § 16(b) cases is not as precise and predictable as in 
§ 924(c)(3)(B) cases. A § 16 (b) determination involves a recidivist statute 
and whether a defendant, convicted of illegal reentry after removal under 
8 U.S.C. § 1326, has a prior, wholly unrelated felony conviction that 
qualifies as an “aggravated felony.” Section 16(b) requires the federal 
court to look back at prior criminal history and evaluate, often under 
divergent state laws, whether a prior co nviction was an aggravated felony. 
For an illegal-reentry-after-removal crime, a defendant with a prior 
aggravated felony conviction can be imprisoned for up to twenty years, 
rather than up to two years with no criminal history. 
In contrast, as outlined above, in § 924(c)(3)(B) cases, the required 
substantial nexus between the § 924(c) firearm offense and the 
contemporaneous federal predicate crim e of violence makes the crime of 
violence determination more precis e, predictable, and judicially 
administrable. Section 924(c)(3)(B) determinations simply do not suffer 
from the uncertainties found by the Supreme Court in § 924(e) cases in 
Johnson. Because [the Se venth Circuit’s] Cardena relied on [its] § 16(b) 
Viva-Ceja case, Cardena does not convince us about § 924(c)(3)(B) cases. 
Ovalles, 2017 WL 2829371, at *8 (citations and footnote omitted). 
Therefore, the Court finds that the resi dual clause, 18 U.S.C. § 924(c)(3)(B) is not 
unconstitutionally vague. 
/ / / 
/ / / 
/ / / 
/ / / 

 
 
- 13 - 
 
 
 
 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
IT IS THEREFORE ORDERE D that Defendant’s Motio n to Dismiss Counts 
Three and Four for Failure to State an Offense Due to Abse nce of a Predicate Crime of 
Violence (Doc. 177) is denied. 
Dated this 13th day of July, 2017. 
 

Passage view · GavelSight