Oyebanji v. Atty Gen USA ( 2005 )


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  •                                                                                                                            Opinions of the United
    2005 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    8-11-2005
    Oyebanji v. Atty Gen USA
    Precedential or Non-Precedential: Precedential
    Docket No. 03-4143
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    PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ____________
    No. 03-4143
    ____________
    LARRY OLOLADE OYEBANJI,
    Appellant
    v.
    *ALBERTO GONZALES, ATTORNEY GENERAL
    OF THE UNITED STATES OF AMERICA;
    MR. CATHEL; THE ATTORNEY GENERAL
    OF THE STATE OF NEW JERSEY
    *(Amended pursuant to Rule 43(c), Fed. R. App. Pro.)
    ____________________
    ON APPEAL FROM THE UNITED STATES DISTRICT
    COURT
    FOR THE DISTRICT OF NEW JERSEY
    District Court Judge: Honorable Jerome B. Simandle
    (D.C. No. 01-cv-02126)
    ___________________
    Argued: June 18, 2004
    Before: ALITO, SMITH, and WALLACE,* Circuit Judges
    (Opinion Filed: August 11, 2005 )
    *
    Honorable J. Clifford Wallace, Senior Judge of the United
    States Court of Appeals for the Ninth Circuit, sitting by
    designation.
    RICHARD COUGHLIN (argued)
    JULIE A. McGRAIN
    Office of the Federal Public Defender
    800-840 Cooper Street, Suite 350
    Camden, N.J. 08102
    Counsel for Appellant
    MICHAEL A. CHAGARES (argued)
    THOMAS R. CALCAGNI
    Office of the United States Attorney
    970 Broad Street, Suite 700
    Newark, N.J. 07102
    Counsel for Appellee
    OPINION OF THE COURT
    ALITO, Circuit Judge:
    Larry Ololade Oyebanji appeals from the District Court’s
    order denying his petition for a writ of habeas corpus. Oyebanji
    challenges a decision of the Board of Immigration Appeals
    (“BIA”) holding that his conviction for vehicular homicide under
    New Jersey law was a “crime of violence” as defined by 
    18 U.S.C. § 16
     and was thus a ground for removal. In light of the Supreme
    Court’s recent decision in Leocal v. Ashcroft, 
    125 S.Ct. 377
    (2004), we conclude that we must reverse the decision of the
    District Court, which was issued before Leocal was handed down.
    I.
    Oyebanji is a citizen of Nigeria and has been a lawful
    permanent resident of the United States since 1997. A lawful
    permanent resident is subject to removal if he or she commits an
    “aggravated felony.”      See 
    8 U.S.C. § 1227
    (a)(2)(A)(iii).
    Aggravated felonies include any offense that is punishable by at
    2
    least one year of imprisonment and that is “a crime of violence” as
    defined in 
    18 U.S.C. § 16
     (and is not a “purely political” offense).
    
    8 U.S.C. § 1101
    (a)(43)(F).
    In February 1998, Oyebanji was arrested in East Orange,
    New Jersey, after causing a car accident that killed another person.
    Oyebanji pled guilty to vehicular homicide, in violation of N.J.
    S TAT. A NN. § 2C:11-5(b)(1), driving under the influence of an
    intoxicating drug (“DUI”), in violation of N.J. S TAT. A NN. § 39:4-
    50, and reckless driving, in violation of N.J. S TAT. A NN. § 39:4-96.
    The New Jersey state court sentenced Oyebanji to six years’
    imprisonment.
    In June 2000, an Immigration Judge (“IJ”) held that
    Oyebanji’s conviction for vehicular homicide was an “aggravated
    felony” under the Immigration and Nationality Act (INA), 
    8 U.S.C. §1101
    (a)(43)(F), because it was a felony for which the term of
    imprisonment is at least one year and a crime of violence as defined
    in 
    18 U.S.C. § 16
    (b). 2 The IJ also found that Oyebanji was
    ineligible for any form of relief from removal and therefore ordered
    that he be removed to Nigeria. The BIA affirmed the IJ’s decision
    and dismissed Oyebanji’s appeal.
    Oyebanji filed a petition for a writ of habeas corpus in the
    United States District Court for the District of New Jersey, seeking
    relief from the order of removal. The District Court denied
    Oyebanji’s petition because it found that his offense was a crime
    of violence. Oyebanji then took the appeal that is now before us.
    After hearing oral argument, we held this appeal c.a.v.
    because the Supreme Court had granted certiorari in Leocal, a case
    addressing a similar issue. Following the Supreme Court’s
    decision in that case, we invited the parties to file supplemental
    briefs addressing its application to the case at hand.
    2
    Oyebanji does not contest that vehicular homicide under
    N.J. S TAT. A NN. § 2C:11-5(b)(1) is a felony for which the term of
    imprisonment is at least one year.
    3
    II.
    Where the underlying facts of a habeas petition are
    undisputed, we exercise plenary review over a district court’s
    decision. See Sierra v. Romaine, 
    347 F.3d 559
    , 564 (3d Cir. 2003),
    vacated on other grounds, 
    125 S. Ct. 962
     (2005).3 Because the BIA
    is not charged with administering 
    18 U.S.C. § 16
     and has no special
    expertise regarding the interpretation of that criminal statute, we do
    not defer to the BIA’s interpretation of that provision. See Francis
    v. Reno, 
    269 F.3d 162
    , 168 (3d Cir. 2001). To determine if a
    person was convicted of a crime of violence within the meaning of
    
    18 U.S.C. § 16
    , we use the “categorical” approach. In a case
    where, as here, the petitioner pled guilty, we look only to the fact
    of conviction and the statutory definition of the offense, not the
    person’s actual conduct. Taylor v. United States, 
    495 U.S. 575
    ,
    602 (1990); Francis, 
    269 F.3d at 171-72
    .
    III.
    Section 16 defines a crime of violence as follows:
    (a) an offense that has as an element the use,
    attempted use, or threatened use of physical force
    against the person or property of another, or
    (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
    3
    Following enactment of the Real ID Act of 2005, Pub. L.
    109-13, 
    119 Stat. 231
    , all habeas petitions brought by aliens
    challenging removal that were pending before the district courts
    were converted to petitions for review and transferred to the
    appropriate courts of appeals. We held in Bonhometre v. Gonzales,
    - - - F.3d - - -, No. 04-2037, 
    2005 WL 1653641
     (3d Cir. July 15,
    2005), that this command applied also to habeas appeals pending
    before this Court. Bonhometre at *2. As such, Oyebanji’s appeal
    of the District Court’s order denying his habeas petition is now
    properly converted into a petition for review.            See 
    id.
    Nevertheless, the standard of review regarding questions of law is
    the same for petitions for review as it was for habeas appeals.
    4
    used in the course of committing the offense.
    
    18 U.S.C. § 16
    .
    In Leocal, the Supreme Court held that a criminal DUI
    offense that either lacks a mens rea component or requires only a
    showing of negligence in the operation of a vehicle is not a crime
    of violence under Section 16. The Court noted, however, that
    Leocal did not present “the question whether a state or federal
    offense that requires proof of the reckless use of force against a
    person or property of another qualifies as a crime of violence under
    
    18 U.S.C. § 16
    .” Leocal, 
    125 S. Ct. at 384
     (emphasis in original).
    In the present case, both Oyebanji and the government agree
    that Subsection 16(a) does not apply, and both frame the issue here
    as whether Oyebanji’s felony conviction for vehicular homicide
    under New Jersey law constitutes a crime of violence under
    Subsection 16(b), meaning a felony 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.”
    Under New Jersey law, vehicular homicide requires proof of
    recklessness. N.J. S TAT. A NN. § 2C:11-5(a) (“Criminal homicide
    constitutes vehicular homicide when it is caused by driving a
    vehicle or vessel recklessly.”); State v. Stanton, 
    176 N.J. 75
    , 83-85
    (2003).4 We are therefore required to decide the very question that
    4
    N.J. S TAT. A NN. § 2C:2-2(3) defines “recklessly” as
    follows:
    (3) Recklessly. A person acts recklessly with respect to a
    material element of an offense when he consciously disregards a
    substantial and unjustifiable risk that the material element exists or
    will result from his conduct. The risk must be of such a nature and
    degree that, considering the nature and purpose of the actor’s
    conduct and the circumstances known to him, its disregard involves
    a gross deviation from the standard of conduct that a reasonable
    person would observe in the actor’s situation. “Recklessness,”
    “with recklessness” or equivalent terms have the same meaning.
    5
    the Leocal Court did not reach.
    IV.
    Although Leocal did not decide the question presented here,
    the Leocal opinion suggests that Oyebanji’s crime was not a crime
    of violence as the Supreme Court understands that term. The
    cornerstone of the Leocal Court’s reasoning was that the concept
    of the use of physical force against the person or property of
    another “requires active employment” and “naturally suggests a
    higher degree of intent than negligent or merely accidental
    conduct.” Leocal, 
    125 S.Ct. at 382
     (emphasis added). The Court
    noted that this concept is incorporated into both subsections (a) and
    (b) of 
    18 U.S.C. § 16
    . 
    Id. at 382-83
    . The Court elaborated:
    In construing both parts of § 16, we cannot forget
    that we ultimately are determining the meaning of
    the term “crime of violence.” The ordinary meaning
    of this term, combined with § 16’s emphasis on the
    use of physical force against another person (or the
    risk of having to use such force in committing a
    crime), suggest a category of violent, active crimes
    that cannot be said naturally to include DUI offenses.
    Cf. United States v. Doe, 
    960 F.2d 221
    , 225 (C.A.1
    1992) (Breyer, C.J.) (observing that the term “violent
    felony” in 
    18 U.S.C. § 924
    (e) (2000 ed. and Supp. II)
    “calls to mind a tradition of crimes that involve the
    possibility of more closely related, active violence”).
    Interpreting § 16 to encompass accidental or
    negligent conduct would blur the distinction between
    the “violent” crimes Congress sought to distinguish
    for heightened punishment and other crimes.
    
    125 S.Ct. at 383
     (emphasis added).
    The Court’s reliance on the ordinary meaning of the term
    “violent” crime and the Court’s repeated reference to “accidental”
    conduct as falling outside the reach of 
    18 U.S.C. § 16
     have
    implications for the present case. The quintessential violent crimes
    – murder, assault, battery, rape, etc. – involve the intentional use of
    6
    actual or threatened force against another’s person, and the term
    “accidental” is most often used to describe events that did not
    “occur[] as a result of anyone’s purposeful act.” Black’s Law
    Dictionary 16 (8th ed. 1999). Oyebanji’s crime, although plainly
    regarded by New Jersey as involving a substantial degree of moral
    culpability, did not involve the intentional use of force but instead
    required only recklessness. Particularly because the issue of the
    application of 
    18 U.S.C. § 16
     to crimes of recklessness was on the
    Court’s mind, see 
    125 S.Ct. at 384
    , we cannot overlook the Court’s
    repeated statement that “accidental” conduct (which would seem
    to include reckless conduct) is not enough to qualify as a crime of
    violence.5
    Another feature of Leocal points in the same direction.
    After concluding that a crime of violence as defined in Section 16
    must consist of more than negligence, the Supreme Court stated
    that its construction of Section 16 was “reinforced” by the way
    another federal statute uses Section 16. See Leocal, 
    125 S. Ct. at 384
    . Section 101(h) of the INA defines the term “serious criminal
    offense” as:
    (1) any felony;
    (2) any crime of violence, as defined in Section 16 of
    Title 18; or
    (3) any crime of reckless driving or of driving while
    intoxicated or under the influence of alcohol or of
    prohibited substances if such crime involves
    personal injury to another.
    5
    See Bejarano-Urrutia v. Gonzales, — F.3d —, No. 04-
    2270, 
    2005 WL 1554805
    , at *2 (4th Cir. July 5, 2005) (“[T]he
    conclusion of the Leocal Court that ‘[i]n no ‘ordinary or natural’
    sense can it be said that a person risks having to ‘use’ physical
    force against another person in the course of operating a vehicle
    while intoxicated and causing injury,’ [125 S. Ct.] at 383, strongly
    indicates that the result in Leocal would have been the same even
    had a violation of the statute there at issue required recklessness
    rather than mere negligence.”).
    7
    
    8 U.S.C. § 1101
    (h). The Supreme Court reasoned that the separate
    listing of “any crime of violence” and “any” injury-causing DUI
    crime “bolster[ed]” its conclusion that the term crime of violence
    does not embrace DUI crimes, because interpreting the term “crime
    of violence” to include DUI crimes would render 101(h)(3)
    “practically devoid of significance.” Leocal, 
    125 S. Ct. at 384
    .
    Following this reasoning, we cannot ignore that Section
    101(h) also lists “any crime of violence” separately from “any
    crime of reckless driving.” We must instead interpret that separate
    listing as suggesting that injury-causing reckless driving offenses
    in particular are excluded from the category of crimes of violence.
    Since vehicular homicide under New Jersey law is a form of
    reckless driving that causes death, Leocal’s reasoning seems to
    suggest that Oyebanji’s offense is excluded from the category of
    crimes of violence.
    We recognize that there are plausible grounds for
    distinguishing Leocal and that reasonable arguments can be made
    in support of the proposition that Oyebanji’s offense of conviction
    should be viewed as a crime of violence. But as a lower federal
    court, we are advised to follow the Supreme Court’s “considered
    dicta.” See McCoy v. Mass. Inst. of Tech., 
    950 F.2d 13
    , 19 (1st
    Cir. 1991) (“[F]ederal appellate courts are bound by the Supreme
    Court’s considered dicta almost as firmly as by the Court’s outright
    holdings, particularly when, as here, a dictum is of recent vintage
    and not enfeebled by any subsequent statement.”); see also United
    States v. Marlow, 
    278 F.3d 581
    , 588 n.7 (6th Cir. 2002); Gaylor v.
    United States, 
    74 F.3d 214
    , 217 (10th Cir. 1996); City of Timber
    Lake v. Cheyenne River Sioux Tribe, 
    10 F.3d 554
    , 557 (8th Cir.
    1993); Nichol v. Pullman Standard, Inc., 
    889 F.2d 115
    , 120 n. 8
    (7th Cir. 1989); United States v. Bell, 
    524 F.2d 202
    , 206 (2d Cir.
    1975). In view of the opinion in Leocal, we hold that Oyebanji’s
    offense was not a crime of violence in the relevant sense. While
    we appreciate the force of the government’s arguments to the
    contrary, we believe that those arguments must be directed to the
    Supreme Court or Congress.
    Finally, we note that in a case concerning the Pennsylania
    crime of reckless burning or exploding, this Court “conclude[d]
    8
    that § 16 (b) crimes are those raising a substantial risk that the actor
    will intentionally use force in the furtherance of the offense.” Tran
    v. Gonzales, —F.3d —, No. 02-3879, 
    2005 WL 1620320
    , at *5 (3d
    Cir. July 12, 2005) (emphasis in original).
    V.
    For the reasons set out above, we reverse the decision of the
    District Court.
    9