In Leocal v. Ashcroft, [448] the Supreme Court reaffirmed the necessity to analyze the elements of the offense of conviction, rather than look to the facts of the conduct involved:  “This language requires us to look to the elements and the nature of the offense of conviction, rather than to the particular facts relating to petitioner’s crime.”[449]  It applied this rule to the analysis of whether a conviction for driving under the influence fell within either of the two crime of violence definitions contained in 18 U.S.C. § 16(a) or (b).  It therefore held that the language “by its nature” requires the immigration and federal courts to analyze the elements of the offense, rather than the facts of the offense, to determine whether it falls within § 16(b).[450]

[448] Leocal v. Ashcroft, ___ U.S. ___, 125 S.Ct. 377 (Nov. 9, 2004).

[449] Id. at 381.

[450] See also United States v. Martinez-Mata, 393 F.3d 625 (5th Cir. Dec. 10, 2004) (Texas conviction of retaliation under Texas Penal Code § 36.06 is not a crime of violence for sentencing purposes since it does not have, as an element, the use, attempted use, or threatened use of physical force).

Third Circuit

CRIME OF VIOLENCE - SEXUAL ASSAULT - ILLEGAL REENTRY
United States v. Remoi, __ F.3d __, 2005 WL 845884 (3d Cir. April 13, 2005) (sexual contact with a helpless victim, in violation of New Jersey Statute section 2C:14-2c(2), requiring that victim of "penetration" have been "physically helpless" or "mentally defective or incapacitated" is a "crime of violence" for illegal reentry sentencing purposes; although statute does not require physical force, it may be satisfied by proof that the contact occurred through exploitation of the victim's helplessness, thus qualifying as a "forcible sex offense (including sexual abuse of a minor)" under U.S.S.G. 2L1.2, app. n.1(B)(ii)).