Courts & Litigation Criminal Justice & the Rule of Law

How Dimaya v. Sessions Has Affected Sentencing for Terrorism Convictions

Stephanie Zable
Thursday, October 25, 2018, 10:00 AM

In August, two convicted terrorists were released from prison unexpectedly early. The two originally received enhanced sentences under a statute that established mandatory minimum sentence extensions for the use of a firearm in conjunction with a violent felony, but the judge who released them held that the statute was unconstitutional under Sessions v. Dimaya, a case the Supreme Court decided in April.

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In August, two convicted terrorists were released from prison unexpectedly early. The two originally received enhanced sentences under a statute that established mandatory minimum sentence extensions for the use of a firearm in conjunction with a violent felony, but the judge who released them held that the statute was unconstitutional under Sessions v. Dimaya, a case the Supreme Court decided in April. Dimaya has already had significant repercussions in criminal sentencing, and it is likely to affect how terrorists—and other felons—are prosecuted in the future.


In Dimaya, the Supreme Court held that 18 U.S.C. §16(b)—a provision of the Immigration and Nationality Act that virtually assured deportation for immigrants convicted of certain crimes—was unconstitutionally vague in identifying predicate offenses that qualified to trigger the statute. The decision followed from the Supreme Court’s 2015 ruling Johnson v. U.S., in which the court held that the “residual clause” of the Armed Career Criminal Act (ACCA) was similarly unconstitutionally vague. 18 U.S.C. §16(b) reads:

The term "crime of violence" means—

(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.

The statute has traditionally been applied using the “ordinary case” framework, under which the judge assesses whether there is a “substantial risk of physical force” in an “ordinary” instance of the predicate offense, as opposed to the specific instance of the defendant’s crime. The Dimaya court held that 18 U.S.C. §16(b), as applied under this framework, contained the same two characteristics that made the ACCA’s residual clause unconstitutional in Johnson: (1) an ordinary-case requirement and (2) an “ill-defined risk threshold,” under which a judge must determine whether there is a “substantial risk” of physical force in a theoretical ordinary case of the crime. (Justice Neil Gorsuch, in his concurrence, described this as a “judge-imagined abstraction.”) According to Dimaya and Johnson, the combination of the two inexact formulations is simply a bridge too far for a defendant to reasonably anticipate. (For more, see Eliot Kim’s discussion of Dimaya).

When Dimaya was issued, many noted its potentially broad implications. In the intervening months, the decision has been brought to bear in a significant way in numerous cases, among them one particular class of cases: sentencing enhancements for use of a firearm in conjunction with terrorism felonies, under 18 U.S.C. §924(c).

The Statute

18 U.S.C. §924(c) enhances sentences for violent crimes involving a firearm. It begins:

[A]ny person who, during and in relation to any crime of violence or drug trafficking crime … for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime—

(i) be sentenced to a term of imprisonment of not less than 5 years;

(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

Section 924(c)(3) further provides:

[T]he term "crime of violence" means an offense that is a felony and—

(A) has as an element the use, attempted 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 another may be used in the course of committing the offense

The part of the statute at issue is Section 924(c)(3)(B), the residual clause. The language in this clause is virtually identical to the language ruled unconstitutional in Dimaya, Section 16(b). And like that provision, Section 924(c) has traditionally been applied using the “ordinary case” framework. It therefore contains the two elements that the Supreme Court found made Section16(b)’s residual clause unconstitutionally vague: the requirement that courts determine what a theoretical “ordinary case” of the offense charged looks like and an “ill-defined risk threshold.”

Section 924(c) is a common sentence-enhancer; it applies to any potentially violent felony that involves a firearm. It is frequently used to increase sentences for robbery and similar offenses. While the Supreme Court did not specifically hold Section 924(c)(3)(B) unconstitutional, in the wake of Dimaya it has vacated and remanded several cases that center on the provision. Every appellate court that has ruled on Section 924(c)(3)(B) has agreed that under Dimaya, the residual clause is unconstitutionally vague if the ordinary-case approach is used.

Several circuit courts have noted, however, that the statute can also be interpreted under the conduct-specific approach, which would require that a “crime of violence” under Section 924(c)(3)(B) be determined by examining the defendant's actual conduct in a given case. Justice Clarence Thomas initially suggested this reinterpretation in his dissent in Johnson and reiterated it in his dissent in Dimaya. As this approach considers the specific circumstances of the case rather than a theoretical ordinary case, there is no vagueness and thus no constitutional difficulties under Dimaya. Courts have traditionally used the ordinary-case framework on the grounds that the phrase “by its nature” suggests that framework. But these courts have held that the statutory language does not completely exclude the specific-case approach. As a result, these courts have determined that the constitutional avoidance canon—which says that courts should if at all possible interpret a statute to avoid constitutional problems, rather than simply invalidating the statute—requires the use of this approach.

But this approach is not universal. The Seventh Circuit refused to apply the conduct-specific framework, noting that Justice Thomas’s Dimaya opinion was joined by only two other justices and that no other justice joined his Johnson dissent. The circuit court held that since the Supreme Court had not established that the conduct-specific framework could be used—and Justice Gorsuch’s concurrence had specifically observed that Supreme Court precedent required the ordinary-case framework—the lower court could not use the alternate approach.

The Terrorism Cases So Far: Khan, Royer, Chapman

The first cases to apply the Dimaya ruling in a terrorism context were heard in the Eastern District of Virginia: Khan v. United States, Royer v. United States and Chapman v. United States. All three defendants moved to vacate their convictions under Section 924(c)(3)(B) on the grounds that the statute was unconstitutional. The defendants had all been convicted of a series of offenses in connection with their efforts to train with the Pakistani terrorist group Lashkar-e-Taiba (LET) or join the Taliban in Afghanistan. They were convicted of numerous offenses, including use and possession of firearms in connection with a crime of violence in violation of 18 U.S.C. §924(c). In the three cases, the predicate crimes were several conspiracy counts, based on some assortment of:

  • Traveling to the LET camps in Pakistan
  • Discharging various firearms in military training
  • Participating in various discussions and meetings
  • Procuring items for use in terrorist operations, including an airplane control module, a compatible wireless video system or at least one rifle [1] [2] [3] [4]

All three cases were conducted in the Eastern District of Virginia before Judge Leonie Brinkema, who issued rulings on the vacature motions in late July and early August. Judge Brinkema held that on the substantive question, the statutory language under which the defendants had been convicted was virtually identical to the language that the Supreme Court had held unconstitutional in Dimaya and so the ordinary-case framework was unconstitutional. Under the conduct-specific approach, however, the circumstances of the cases did not qualify as “crime[s] of violence.” As Judge Brinkema stated,

Although all these various activities occurred at the periphery of—and, in some cases, with the intent to support—violent actions undertaken by others, including co-conspirators and LET members, there is insufficient evidence in this record that these actions involved either [the defendant]'s actual use of force or a substantial risk that [the defendant] would use force.


The major hurdle that all three cases faced, and the question on which courts have diverged, is a procedural question: Are the appeals timely under 28 U.S.C. § 2255(f)(3)? This provision requires that a sentencing appeal be filed within one year of the date that the movant's conviction became final, or within one year of “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.”

Courts have disagreed on whether the unconstitutionality of §924(c)(3)(B) is a right “newly recognized by the Supreme Court,” as well as whether that right has been made retroactively applicable. Under Johnson, several courts, including the Fourth, Sixth and Tenth Circuits, ruled that the Supreme Court had not created a new right on which the movants appealing convictions unrelated to the ACCA could rely.

Since Dimaya, some of these courts have changed their stance. For example, in United States v. Nguyen, the Tenth Circuit held that Dimaya was broader than Johnson and thus could be used as the basis for a newly recognized right for appeals under statutes other than the ACCA. Because the court had previously held that Dimaya extended Johnson’s reasoning to §924(c)(3), the Tenth Circuit reasoned, Dimaya had newly recognized a right that the movant could rely on, and thus the appeal under Johnson was timely.

However, other courts have maintained that Dimaya did not newly recognize a right for convictions under Section 924(c)(3)(B). In United States v. Blackstone, the Ninth Circuit determined that because the Supreme Court had not specifically ruled Section 924(c)(3)(B) unconstitutional, it had not newly recognized a right for defendants convicted under that statute. (Blackstone was argued before the Dimaya decision but decided after; the Ninth Circuit referred to pre-Dimaya caselaw from other circuits refusing to recognize a Johnson right for convictions under §924(c)(3)(B).) The Fifth Circuit concurred in United States v. Williams, noting that though the Supreme Court had directed appellate courts to “reconsider” cases under Section 924(c)(3)(B), it had not specifically ruled the statute unconstitutional. The Fifth Circuit observed that it may be likely that the Supreme Court would rule Section 924(c)(3) unconstitutional under the Dimaya reasoning, but since it had not yet done so a motion on the grounds that a new right had been created was untimely: “The one-year clock on § 924(c)(3)(B) has not yet started. So in that sense, his motion is untimely, but because it was filed too early, not too late.”

While the Fourth Circuit has not opined on this issue since Dimaya, Judge Brinkema ruled that under Fourth Circuit precedent, Sections 924(c)(3)(B) and 16(b) have been interpreted identically, and thus Dimaya recognizes a new right under both. She therefore vacated the convictions.

What comes next?

Judge Brinkema had previously indicated that she was unhappy with the sentences she imposed; she considered them far too severe. However, she had no discretion due to the mandatory sentencing enhancements under Section 924(c). After vacating the charges under that statute, Judge Brinkema ordered Khan and Chapman released immediately; Royer was already out of prison on a plea bargain. Khan and Chapman had each served more than the 120 months to which they were sentenced under the convictions that remained.

It is unclear how many defendants have been convicted of crimes related to terrorism under Section 924(c), but the federal courts may see more appeals under Dimaya. Whether these appeals are considered timely is likely to depend on the circuit, unless the Supreme Court decides to step in. In any case, defendants will have only until April 17, 2019—a year from the Dimaya decision—to initiate appeals, so the number of these cases is likely to be fairly limited.

The more significant impact will be on future cases. Dimaya does not affect convictions for terrorist acts. But it mandates that convictions under Section 924(c), whose purpose is exclusively to lengthen a sentence, be tied to the specific circumstances of the crime at issue—requiring that the crime include a substantial risk that the defendant would use physical force in committing the charged offenses. Khan and Chapman’s sentences were cut from life and 780 months, respectively, to 120 months. In the long term, Dimaya will likely result in shorter sentences for terrorist crimes in which the defendant does not personally commit violent acts but, rather, provides other kinds of support to terrorist groups.

Stephanie Zable is a graduate of University of Michigan Law School and Johns Hopkins SAIS concentrating in strategic studies. Prior to law school, she lived in China for four years and spent a year traveling through Europe and Asia. She graduated from Oberlin College with a degree in math and politics.

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