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Precedential or Non-Precedential: Precedential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, 

(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, 

, 564 (3d Cir. 2003),
vacated on other grounds, 

(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, 

, 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, 

,
602 (1990); 

.

                                 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, 

(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 

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.” 

(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, 

, 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.” 

(emphasis added). The Court
noted that this concept is incorporated into both subsections (a) and
(b) of 18 U.S.C. § 16. 

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, 

, 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 

(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, 

, 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 

. 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, 

, 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.” 

.

        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., 

, 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, 

, 588 n.7 (6th Cir. 2002); Gaylor v.
United States, 

, 217 (10th Cir. 1996); City of Timber
Lake v. Cheyenne River Sioux Tribe, 

, 557 (8th Cir.
1993); Nichol v. Pullman Standard, Inc., 

, 120 n. 8
(7th Cir. 1989); United States v. Bell, 

, 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, 

, 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