United States v. Yonas Eshetu
Opinion
A jury convicted defendants Pablo Lovo and Joel Sorto of conspiring to interfere with interstate commerce by robbery,
*37
After we issued our decision, the United States Supreme Court held that
Under the residual clause that
Dimaya
struck down, "[t]he term 'crime of violence' means" an "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."
The government concedes "that the panel should grant rehearing in order to address the impact of
Dimaya
." Appellee's Suppl. Br. 3. But it urges us to "construe § 924(c)(3)(B) to require a case-specific approach that considers appellants' own conduct, rather than the 'ordinary case' of the crime."
Id
. at 8. In the government's telling, this construction is a necessary means of avoiding "the constitutional concerns that [a categorical] interpretation would create following
Dimaya
."
Id
. Whatever the clean-slate merits of the government's construction, we as a panel are not at liberty to adopt it: circuit precedent demands a categorical approach to section 924(c)(3)(B),
see
United States v. Kennedy
,
The government says this "panel is not bound by
Kennedy
" because
Dimaya
, "an intervening Supreme Court decision," "casts doubt" on it. Appellee's Suppl. Br. 24 (internal quotation omitted). We disagree.
Dimaya
nowise calls into question
Kennedy
's requirement of a categorical approach. To the contrary, a plurality of the High Court concluded that section 16(b) -which, again, is textually parallel with section 924(c)(3)(B) -is "[b]est read" to "demand[ ] a categorical approach" "
even if
that approach [cannot] in the end satisfy constitutional standards."
Dimaya
,
Accordingly, we grant rehearing for the limited purpose of vacating Lovo's and Sorto's section 924(c) convictions in light of Dimaya . 2 We do not otherwise reconsider or disturb our decision in Eshetu . We remand to the district court for further proceedings consistent with this opinion and the unaffected portions of Eshetu .
More precisely, Lovo petitions for rehearing and Sorto moves to adopt his and amicus's arguments. See Fed. R. App. P. 28(i). We grant Sorto's motions, which the government does not oppose.
In vacating the section 924(c) convictions, we express no view-because the government advances no argument-about whether conspiracy in violation of
Reference
- Full Case Name
- UNITED STATES of America, Appellee v. Yonas ESHETU, Also Known as Yonas Sebsibe, Appellant
- Cited By
- 48 cases
- Status
- Published