First of all the link to the text of the Quinteros ruling is here.What I am going to focus on in this article is the effect that Quinteros had in deciding how to properly apply the categorical approach (if you are unfamiliar with the categorical approach click the news link above in the header and read the article title “What is the Categorical Approach”). There are two potential ways to apply the categorical approach to decide if a crime is categorically overly broad.
- The first way is to compare the predicate crime to the model penal code definition of the crime.The second way is to survey the state and federal law and see how a majority of states and the federal government define a crime.
The question that was answered in Quinteros is whether a conspiracy requires an overt act to be considered a conspiracy under the Immigration and Nationalities Act (INA). The Quinteros court decided that the second way, that is to survey the states and federal law and see how a majority of states and the federal government define a crime controls the proper application of the categorical approach. This ruling is in line with the Supreme Court’s decision in Taylor v. United States, 495 U.S. 575 (1990), which actually established the categorical approach, and I believe this to be the correct ruling and I believe that Quinterios will survive any challenge to the Supreme Court. This ruling is a big deal for people who have been ordered removed from the United States due to a conspiracy conviction. Because the categorical approach ignores your actual conduct it does not matter if you were accused and convicted of committing an overt act, what matters is whether the law requires an overt act. The reason why it is such a big deal is that the majority of states and the federal government require that an overt act be committed for a conspiracy conviction, this means that if you have been convicted of a conspiracy and that conviction did not require the government to prove that you committed an overt act you are not removable from the United States.
If you go to the my cases link above and look at the case of Shariful Mintu, that case demonstrates the power of Quinteros. In Mintu, he was convicted of conspiracy to commit federal bank fraud under 18 U.S.C. § 1349, the text is as follows:
- Any person who attempts or conspires to commit any offense under this chapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.
As you will notice there is NO requirement for an overt act! In the case of Mintu, he was actually deported to Bangladesh and his case was final, but due to Quinteros, it was shown that the Immigration Judge did not properly apply that categorical approach to Mintu’s case, and the Board of Immigration Appeals reopened Mintu’s case and remanded it back to the Immigration Judge. The Immigration Judge then terminated Mintu’s proceedings and Mintu regained his legal permanent status.
Now it is very important to note that Quinteros is a Third Circuit decision, and is binding only in the Third Circuit, but this decision in line with the Ninth and Tenth Circuits, the Fourth Circuit is a little weird on the issue because they held in the context of career offender that a conspiracy does require an overt act, but in the context of the INA a conspiracy does not require an overt act. The Fourth Circuits ruling is based on the difference between the sentencing guidelines and the INA and the different body that wrote them, which am not going to go detail over, because frankly I do not agree with them and I believe that eventually, it will be overruled in favor of the pure categorical approach in line with Taylor.
So long story short on how Quinteros affects you if you have a career offender or armed career offender designation or have been ordered removed from the United States and you have a predicate conspiracy conviction, you need to check and see if the conspiracy REQUIRES that you committed an overt act. If it does not require an overt act, whether you admitted an overt act or not you need to challenge the validity of that predicate under Quinteros.
One more part of Quinteros that bears mentioning is that the Third Circuit also held that Quintero’s conviction for 18 U.S. Code § 1959(a)(6) – Violent crimes in aid of racketeering activity (VICAR) that is:
- (6) for attempting or conspiring to commit a crime involving maiming, assault with a dangerous weapon, or assault resulting in serious bodily injury, by imprisonment for not more than three years or a fine of under this title, or both.
is not categorically a crime of violence that is that it does not have “an element the use, attempted use, or threatened use of physical force against the person or property of another” as defined by 18 U.S.C. § 16(a). As far as I am aware this is the first decision made by the Third Circuit after the Supreme Court decided SESSIONS, ATTORNEY GENERAL v. DIMAYA, No. 15–1498 (2018) (Read the case here) where the Court held that the residual clause of 18 U.S.C. § 16, specifically 18 U.S.C. § 16(b) was void for vagueness under the INA. The text of § 16(b) is as follows:
- (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.
As you can see this does not give a reasonable person a warning of what conduct is prohibited. Under this residual clause, courts have held that shotgun possession, walk-away escapes, and fleeing and eluding police in a motor vehicle were all crimes of violence. So the Third Circuit in Quinteros decided that conspiracy to commit VICAR does not categorically involve the “use, attempted use, or threatened use of physical force against the person or property of another”, while ignoring the residual clause in § 16(b). This is again a big deal! This decision dramatically limits the type of convictions that can be considered removable violent crimes. As shown above, there are circuit splits dealing with some of the issues in Quinteros, and some issues are destined to go to the Supreme Court, but I believe in this case the court got it right, Quinteros is a well written and thoughtful opinion that I believe will survive appellate review.
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