The two crime of violence definitions under 18 U.S.C. § 16(a) and 16(b) have different requirements regarding whether an offense must be a felony to be a crime of violence.  For an offense to be a crime of violence under 18 U.S.C. § 16(b), it must be a felony, rather than a misdemeanor or other more minor offense.[447]  Thus, if the court of conviction designates the conviction as a misdemeanor or other lesser offense, or later reduces it to a non-felony, the conviction cannot be considered a “crime of violence” under this second prong of the crime of violence aggravated felony definition.  See § § 7.19, 7.21, supra.

[447] 18 U.S.C. § 16(b) specifies that the offense must be “any other offense that is a felony. . . .”  For example, a federal district court has held that a California conviction for possession of a dangerous weapon cannot constitute a crime of violence under 18 U.S.C. § 16(b) because it encompasses misdemeanors.  United States v. Villanueva-Gaxiola, 119 F. Supp.2d 1185, 1190 (D. Kansas 2000).

Eighth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - FELONY - CHARGING PAPER IS NOT DISPOSITIVE AS TO WHETHER CALIFORNIA WOBBLER, ALSO KNOWN AS ALTERNATIVE FELONY-MISDEMEANOR, IS A FELONY, SINCE THE COURT AT SENTENCE MAY REDUCE IT TO A MISDEMEANOR FOR ALL PURPOSES
United States v. Viezcas-Soto, 562 F.3d 903 (8th Cir. Apr. 10, 2009) (in California, the information filed as a felony is not dispositive of the felony-misdemeanor inquiry - i.e. whether the maximum punishment is in excess of one year; a California "wobbler" becomes a felony or misdemeanor only after the court enters judgment imposing a punishment), citing Cal.Penal Code 17(b)(1); see United States v. Brown, 33 F.3d 1014, 1018 (8th Cir.1994); United States v. Gomez-Hernandez, 300 F.3d 974, 978 (8th Cir.2002); United States v. Robinson, 967 F.2d 287, 293 (9th Cir.1992)).

Ninth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 U.S.C. 16(B) - FELONY DEFINITION
Ortega-Mendez v. Gonzales, ___ F.3d ___, 2006 WL 1642755 (9th Cir. Jun. 15, 2006) (Ninth Circuit leaves as an open question whether the term "felony" for purposes of 18 U.S.C. 16(b) is defined by state label or term of imprisonment exceeding one year). See Francis v. Reno, 269 F.3d 162, 166-71 (3d Cir.2001); Doe v. Hartz, 134 F.3d 1339, 1342-43 (8th Cir.1998).

On August 30, 2006, the government filed a petition for rehearing in Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006).