Can a statute that this Court has held to be unconstitutionally void for vagueness nevertheless still be applied when incorporated by reference into the federal Sentencing Guidelines?

QUESTION PRESENTED In Sessions v. Dimaya, 138 S. Ct. 1204 (2018), this Court held that the definition of “crime of violence” found at 18 U.S.C. § 16(b), as incorporated into the definition of “aggravated felony” found at 8 U.S.C. § 1101(a)(43)(F), was unconstitutionally vague. Id. at 1215. The case came before the Court in the context of a challenge to an order of removal issued under the immigration statute. Id. at 1211-12. Previously, in Beckles v. United States, 137 S. Ct. 886, 895 (2017), the Court held that the federal Sentencing Guidelines are not subject to due process vagueness challenges. In United States v. Godoy, 890 F.3d 531, 541-42 (5th Cir. 2018), the Fifth Circuit held that Beckles precluded the application of Sessions _v. Dimaya in the context of the application of the enhancements under the illegal-reentry Sentencing Guideline. That Guideline incorporates by reference the § 16(b) definition declared unconstitutional in Dimaya, and enhances sentences based on that definition. In each of Petitioners’ cases, the Fifth Circuit applied its reasoning in Godoy to deny each Petitioner’s challenge to his sentence. The question presented is: Can a statute that this Court has held to be unconstitutionally void for vagueness nevertheless still be applied when incorporated by reference into the federal Sentencing Guidelines? 1