Rodriguez v. United States

Whether the ‘risk of force’ clause of 18 U.S.C. §924(c)(3)(B) is void for vagueness.

Petitioner was convicted of conspiracy to commit Hobbs Act robbery, conspiracy to distribute narcotics, and brandishing a firearm in furtherance of a crime of violence. Prior to sentencing, Petitioner argued a statute of limitations defense. After a co-defendant succeeded getting the gun count dismissed on statute of limitations grounds (before a different judge), the court denied Petitioner’s argument asserting that justice required the court to paralleling the other ruling. The Second Circuit found that Petitioner did not timely assert his statute of limitations defense. Prior to the Second Circuits rehearing denial, the Supreme Court decided Sessions v. Dimaya, 138 S.Ct. 1204 (2018), holding that the ‘risk of force’ clause in 18 U.S.C. §16(b) was unconstitutionally vague. The decision was brought to the attention of the court but it was not addressed. In Dimaya, the Court held that the ‘risk of force' clause in 18 U.S.C. §16(b) —identical to §924(c)(3) — as unconstitutionally vague. Petitioner argues that both statutes involve the inability to measure the risk posed by a crime with the inability to determine how much risk qualifies a crime as a violent felony. Petitioner argues that the Court has recently GVR’d several similar §924(c)(3)(B) cases in light of Dimaya. The Court vacated the judgment and remanded for further consideration in light of United States v. Davis, 588 U.S. ____ (2019). VACATED and REMANDED.