The Sixth Circuit has extended the rationale of the United States Supreme Court holding in Johnson v. United States, 135 S.Ct. 2551 (2015) to invalidate the “residual clause” definition of “crime of violence” in the immigration context and in the context of the federal sentencing guidelines.
In United States v. Pawlak, 822 F.3d 902 (6th Cir. 2016), the Sixth Circuit has held that Johnson applies equally to the “crime of violence” definition in the sentencing guidelines. Pawlak specifically held that the residual clause in the career offender guideline definition of a “crime of violence,” U.S.S.G..§ 4B1.2, is unconstitutional. Even more recently, the Sixth Circuit held that Johnson likewise applies to the “crime of violence” definition in the immigration code. Shuti v. Lynch, No. 15-3835, 2016 WL 3622539 (6th Cir. July 7, 2016).
This will have an effect on those removable from the United States based on conviction for an “aggravated felony” because what constitutes an “aggravated felony” has been narrowed by Johnson, at least in the Sixth Circuit. Not all circuits are following the Shuti or Pawlak rationales, however.
This expansion of Johnson in the Sixth Circuit to apply equally to the use of the unconstitutional residual clause in multiple contexts may benefit many people, including those subject to removal proceedings due to conviction for an “aggravated felony” and those subject to sentencing guideline enhancements for prior “crime of violence” convictions.