United States of America v. J.r.

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued March 30, 2018
Decided March 30, 2018
Before
FRANK H. EASTERBROOK, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
J. PHIL GILBERT, District Judge*
No. 17-2855
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
J.R.,
Defendant-Appellant.
Appeal from the United
States District Court for the
Southern District of Indiana,
Indianapolis Division.
No. 1:17-cr-00098-SEB-MJD
Sarah Evans Barker, Judge.
Order
In this prosecution of a juvenile, the United States asked the district court to treat J.R.
as an adult under 18 U.S.C. §5032 ¶¶ 1(3), 4, because he has been accused of a crime of
violence. The crime in question is conspiracy to violate the Racketeer Influenced and
Corrupt Organizations Act, and the United States labels this as a crime of violence un-
der 18 U.S.C. §16(b). The district court granted the motion and transferred the case to
the adult docket. J.R. has appealed, as he is entitled to do. United States v. Juvenile Male,
* Of the Southern District of Illinois, sitting by designation.

-- 1 of 2 --

No. 17-2855 Page 2
855 F.3d 769, 771 (7th Cir. 2017). For the time being, his identity remains confidential. 18
U.S.C. §5038(e).
The problem with reliance on §16(b) is that this court has found it to be unconstitu-
tionally vague. See United States v. Vivas-Ceja, 808 F.3d 719, 723 (7th Cir. 2015). The Unit-
ed States believes that Vivas-Ceja is incorrect and that the Supreme Court will hold so—
if not in Sessions v. Dimaya, No. 15–1498 (argued January 17, 2017; reargued October 2,
2017), then in some successor, such as United States v. Jackson, petition for certiorari
pending, No. 17–651. But the law in this circuit currently prohibits the use of §16(b) to
classify RICO conspiracy as a crime of violence. The United States concedes that, unless
the Supreme Court ultimately disapproves Vivas-Ceja, J.R. cannot be prosecuted in fed-
eral court under §5032.
J.R. was charged after the release of Vivas-Ceja. He has been in federal custody for
more than nine months on the basis of a certification under §5032 that the prosecutor
concedes is incompatible with the law of this circuit.
The judgment of the district court is reversed, and the case is remanded with in-
structions to dismiss the papers certifying that J.R. is prosecutable as an adult. He is en-
titled to be released from federal custody, and we trust that the prosecutor and district
court will ensure that this happens forthwith (and without waiting for the district
court’s receipt of our mandate). If the United States seeks rehearing, we will defer action
pending the decision in Dimaya (or, perhaps, some other case if Dimaya does not finally
resolve the issue). But J.R. cannot be held in indefinite custody just because of uncer-
tainty about when and how the Supreme Court will resolve a legal question.

-- 2 of 2 --