Dimaya, Oh Dimaya … Where Art Thou?

If you are a federal sentencing fan like me, then you are also likely waiting for the Supreme Court’s decision in Sessions v. Dimaya, No. 15-1498 (yes, it’s now Sessions since AG Lynch is no longer there). At issue in Dimaya is whether 18 U.S.C. 16(b) is unconstitutional in light of the Supreme Court’s 2015 Johnson decision. Johnson declared the residual clause of the Armed Career Criminal Act unconstitutionally vague.

Section 16 of title 18 provides a generic definition for the term “crime of violence.” Where other provisions of the code do not define “crime of violence,” section 16 controls. There two parts of section 16:

(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, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

Section 16(a) is known as the “force clause.” That provision is not at issue in Dimaya. If something qualifies as a “crime of violence” under the force clause, courts generally will not reach whether 16(b) also applies. Section 16(b) is known as the “residual clause.” It is very similar to the “residual clause” that was declared unconstitutional in Johnson.

Dimaya is not a criminal case. Rather, it is an immigration case. It is unclear whether this is going to matter to the Supreme Court’s analysis of the issue. There was discussion of this during oral argument back in January 2017.

When will Dimaya be decided? Most likely by the end of the Court’s term, which is late this month. We could see a decision this week. I will be checking each day for a decision in Dimaya and post as soon as it is out.