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Document 671
Filed 06/10/16
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3:16-cr-00051-BR
ORDER GRANTING MOTION
(#465) TO DISMISS AND
DISMISSING COUNT
THREE OF THE SUPERSEDING
INDICTMENT
Defendants.
Case 3:16-cr-00051-BR
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BROWN, Judge.
BACKGROUND
Defendants
knowingly and willfully conspire[d) and agree[d)
together and with each other and with persons known and
unknown to the Grand Jury to prevent by force,
intimidation, and threats, officers and employees of
the United States Fish and Wildlife Service and the
Bureau of Land Management, agencies within the United
States Department of the Interior, from discharging the
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DISCUSSION
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I.
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Standard
See also
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An offense
at 2287).
Nevertheless, a court may employ a modified categorical
approach in a "narrow range of cases" to look "beyond the
statutory elements to 'the charging paper and jury instructions'
used in a case" in order to determine whether the crime charged
qualifies as a "crime of violence."
2283-84
The modified
categorical approach, however, does not provide any basis for the
court to look at the conduct of the defendant beyond the elements
within the statute.
See id.
Case 3:16-cr-00051-BR
2014).
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Id. at 1084-85.
See, e.g.,
But
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See Woodley,
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'a broader
violence" under the force clause, 18 U.S.C. 924 (c) (3) (A),
because a "threat" does not always implicate the "threatened use
of physical force against the person or property of another."
For example, because the express terms of 372 do not limit a
"threat" to the threat of "physical force against the person or
property of another," a "threat" under 372 could be a threat to
blackmail a federal officer for the purpose of preventing the
officer from discharging his or her duties, which is a kind of
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See 18 U.S.C.
452
See
See Dominguez-Maroyoqui,
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Indeed,
372 as a
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18 U.S.C.
135
In Johnson the
The
. that .
is
18 U.S.C.
Johnson,
Id. at 2557
(2007)).
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Johnson, 135 S.
Id. at 2558.
Id.
(2008)).
143
"By combining
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tolerates."
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Id. at 2558,
Id. at 2560.
Moreover,
Defendants point out that since Johnson the Ninth Circuit has
held another statute, 18 U.S.C. 16(b), incorporated into the
Immigration and Nationality Act, 8 U.S.C. llOl(a) (43) (F), is
also void for vagueness on similar grounds.
18 U.S.C. 16(b).
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Defendants,
therefore, contend the residual clause of 924 (c) (3) (B) is void
for vagueness because it is materially indistinguishable from
16 (b) .
On the other hand, the government emphasizes the Dimaya
Dimaya,
See Johnson,
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and Dimaya, several district courts within the Ninth Circuit have
concluded 924(c) (3) (B) is unconstitutionally vague.
See United
in all material
2016) .
Unlike the Sixth Circuit in Taylor, this Court is not
empowered to decline to follow Dimaya.
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noted, " 16 (b) appears identical to 924 (c) (3) (B) in all
material respects."
Id.
by Dimaya, the Court must conclude 924(c) (3) (B) is void for
vagueness.
CONCLUSION
ANNA J. BROWN
United States District Judge