The first prong of the aggravated felony crime of violence definition includes “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another . . . .”[371]  This definition therefore has the following elements:

 

            (a) the essential elements of the offense.  See § 7.45, infra.

            (b) must require the use, or attempted or threatened use.  See § 7.46, infra.

            (c) of physical force.  See § 7.47, infra.

            (d) against the person or property of another.  See § 7.48, infra.

            (e) with an intentional mental element.  See § 7.49, infra.

 

Unless each of these elements is present, the conviction does not constitute a crime of violence aggravated felony under the first statutory definition.

            Therefore, a conviction that exhibits the absence of one or more of these essential elements constitutes a partial safe haven with respect to this portion of the crime of violence definition.

[371] 18 U.S.C. § 16(a).

Fifth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " CRIMINAL THREATS
United States v. Cruz-Rodriguez, 625 F.3d 274, 277 (5th Cir. Nov. 2, 2010) (per curiam) (California conviction of criminal threats, in violation of Penal Code 422, did not constitute a crime of violence under U.S.S.G. 2L1.2(b)(1)(A)(ii), for purposes of imposing a 16-level enhancement to the offense level for illegal reentry sentence: On the other hand, with respect to the offense of making a criminal threat, we previously held in an unpublished opinion that the use, attempted use, or threatened use of physical force against the person of another is not an element of California Penal Code 2L1.2(b)(1)(A)(ii) because it is possible under [California] law for the State to obtain a conviction under ... the terroristic threats statute without proof of the threatened use of physical force against another person .... United States v. De La Rosa-Hernandez, 264 Fed.Appx. 446, 447-49 (5th Cir.2008) (unpublished) (internal quotation marks and citations omitted) (alteration in original). We likewise find this reasoning persuasive. In addition, this court reached the same conclusion with respect to a similar Pennsylvania statute, holding that the generic terroristic-threat offense at issue in that case is not a crime of violence. United States v. Ortiz-Gomez, 562 F.3d 683, 684-86 (5th Cir.2009). Therefore, we hold that the offense of making a criminal threat is not a crime of violence for the purpose of sentencing adjustments under U.S.S.G. 2L1.2(b)(1)(A)(ii).).