The second part of the aggravated felony crime of violence definition includes “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”[451]  This requires that the elements of the offense establish a “substantial risk” that the defendant will intentionally use physical force against the person or property of another.  Courts have taken great liberties with this requirement, utterly failing to insist upon any proof — as is normally required for every element of a ground of deportation — by clear, convincing, and unequivocal evidence that this factor is in fact present.

Instead, the courts have speculated about what might happen during the course of the offense, and then labeled it a “substantial risk.”  For example, courts have reasoned that a burglary of an inhabited (though temporarily unoccupied) dwelling presents a substantial risk that the defendant will assault the homeowner if s/he arrives home in flagrante delicto.  The actual chances that the homeowner will in fact arrive home during the burglary are not considered.  Even if the homeowner arrives home, what are the chances the burglar will in fact use force in the commission of the offense?  Certainly many burglars will simply flee.  No statistics are offered by the courts.  If the chances of the former occurring are, say, less than 10%, and the chances of the latter are also less than 10%, then the chances that both will occur in any given burglary would be less than one per cent.  It is hard for any balanced observer to describe something with a less than one per cent chance of occurrence as a “substantial risk.”  Counsel can attempt to offer actual statistics to substantiate this type of fact-based analysis in an effort to persuade a court that a given conviction does not in fact present such a substantial risk, and is therefore not an aggravated felony under this prong of the crime of violence definition.

 

Courts have sometimes held that sex with a minor is a “crime of violence” even though use of force is not an element of the offense.[452]  This is based on the fact that due to the victim’s young age and the nature of the offense, the court concludes that there is a substantial threat that physical force will be used.[453]  These cases have concerned sex with children under 14 years of age.  In particular, a frequently-cited Ninth Circuit case relied upon by the BIA, United States v. Wood, deals specifically with molestation of a very young child (four years old) and should be distinguished from cases involving consensual sex between teenagers.[454]  If the minor is older than age 13, and there is no great age disparity between the defendant and the victim, at least one federal court has found that the offense was not a crime of violence and hence not an aggravated felony.[455]

            In holding a Florida stalking conviction did not constitute a crime of violence under either definition, the Fifth Circuit reasoned that, on its face, the statute, and in turn the elements of the offense, do not require any use, or threatened or attempted use, of physical force, and there are forms of harassment that necessarily do not by their nature involve conduct that presents a serious risk of physical harm.  For example, harassment could be mere repetitive phone calls or suicide threats, and when an indictment is silent as to the offender’s actual conduct, as it is here, the court must proceed under the assumption that the noncitizen’s conduct constituted the “least culpable act satisfying the count of conviction.”[456]

 

            The BIA held that a California conviction of stalking based on harassing conduct in violation of Penal Code § 646.9(b), which proscribes stalking when there is a temporary restraining order, injunction, or any other court order in effect prohibiting the stalking behavior, is a crime of violence[457] and is therefore an aggravated felony[458] for immigration purposes.[459]  This case, many feel, was wrongly decided.  While it may be reasonable to conclude that an offense under this statute involves a substantial risk that harm or even death may occur, there is nothing in the language of the statute indicating that “physical force . . . may be used in the course of committing the offense,” as is required under 18 U.S.C. § 16(b).  The term “safety” in the statute is not limited to physical safety.[460]  The term thus encompasses mental or emotional safety, as well as physical safety.  The statute therefore does not require as an element that violence be used in the commission of the offense, and does not present a substantial risk of that occurrence.  The BIA has recognized that “criminal offenses that have the potential for harm do not always carry a substantial risk that force will be used in their commission.”[461]  This offense may involve a substantial risk of harm, but does not necessarily involve a substantial risk that violence will be used.[462]

[451] 18 U.S.C. § 16 (emphasis supplied).

[452] It has been held to be a crime of violence under 18 U.S.C. § 16(b) as a felony that inherently involves a substantial risk that force will be used.  Matter of B., 21 I. & N. Dec. 287 (BIA 1996) (where Maryland statute prohibits intercourse with child under 14 years, the offense invariably presents “a substantial risk that physical force will be wielded”) (citing United States v. Reyes-Castro, 13 F.3d 377 (10th Cir. 1993)); United States v. Wood, 52 F.3d 272, 275 (9th Cir.), cert. denied, 116 S.Ct. 217 (1995); Zaidi v. Ashcroft, 374 F.3d 357 (5th Cir. June 21, 2004) (Oklahoma conviction for sexual battery [“the intentional touching, mauling or feeling of the body or private parts of any person sixteen (16) years of age or older, in a lewd and lascivious manner and without the consent of that other person . . . .”], in violation of Okla. Stat. Ann. tit. 21, § 1123(B) (West 2002), constituted a “crime of violence,” as defined in 18 U.S.C. § 16(b), and thus an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), rendering the noncitizen subject to removal, under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), because the unconsented touching created a substantial risk that force would be used to complete the offense, and consequently the court of appeal lacked jurisdiction to review the final order of removal).

[453] Matter of B., supra.  See 18 U.S.C. § 16(b), and discussion of crimes of violence in California Criminal Law & Immigration § 9.10, Appendix 9-E following chapter 9 (2004).

[454] In Matter of B, supra, the BIA relied upon United States v. Wood, 52 F.3d 272, 275 (9th Cir.), cert. denied, 116 S.Ct. 217 (1995).  Wood should be distinguished because: (a) the court was using the definition of crime of violence found in the U.S. Sentencing Guidelines, which uses the test ‘risk of injury’ rather than ‘risk that force will be used’ and is far broader than the definition used in immigration law under 18 U.S.C. § 16 (see further discussion of this difference in K. Brady, California Criminal Law & Immigration, Appendix 9-E (2004)); (b) the court did not make a “categorical” analysis but considered the actual facts of the case; and (c) the victim was a four-year-old child, a fact the court relied upon extensively, and a situation far different from consenting sex between a teenage couple.

[455] Xiong v. INS, 173 F.3d 601 (7th Cir. 1999) (intercourse with a 15-year-old is not a crime of violence; court has jurisdiction to review charging documents to determine age of victim) (citing Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 2160 (1990)).  See K. Brady, California Criminal Law and Immigration § 9.7 (Part F) (2004), for further discussion of statutory rape as a crime of violence.

[456] United States v. Insaulgarat, 378 F.3d 456 (5th Cir. July 19, 2004), quoting United States v. Houston, 364 F.3d 243, 246 (5th Cir. 2004).

[457] 18 U.S.C. § 16(b) (2000).

[458] INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) (2000).

[459] Matter of Malta, 23 I. & N. Dec. 656 (BIA March 11, 2004).

[460] People v. Borrelli, 77 Cal.App.4th 703, 719 (2000).

[461] Matter of Puente, 22 I. & N. Dec. 1006 (BIA 1999).

[462] See also United States v. Jones, 231 F.3d 508 (9th Cir. 2000) (conviction for stalking under the California Penal Code not a “crime of violence” so as to merit an increase in base level offense under Sentencing Guidelines).

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(b) -- POSSESSION OF BURGLARY TOOLS
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts conviction for possession of burglarious tools, under M.G.L. ch. 266, 49, does not categorically constitute a crime of violence as defined at 18 U.S.C. 16, because it included neither an element of force under (a) nor the substantial risk that violent force would be used under (b)).

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 U.S.C. 16(b) - EMPIRICAL EVIDENCE ON QUESTION OF WHETHER SPECIFIC OFFENSE BY ITS NATURE INVOLVES A SUBSTANTIAL RISK OF INTENTION USE OF VIOLENT FORCE IN ITS COMMISSION
In considering whether an Illinois conviction of failure to report to jail constituted a "violent felony" under the Armed Career Criminal Act for sentence enhancement purposes, the Supreme Court relied in part on a Sentencing Commission Report. United States Sentencing Commission, Report on Federal Escape Offenses in Fiscal Years 2006 and 2007 (Nov. 2008), reprinted as Appendix A, Chambers v. United States, ___ U.S. ___, 129 S.Ct. 687, 2009 WL 63882 (Jan. 13, 2009). The Court reasoned:

The question is whether such an offender is significantly more likely than others to attack, or physically to resist, an apprehender, thereby producing a "serious potential risk of physical injury." 924(e)(2)(B)(ii). And here a United States Sentencing Commission report helps provide a conclusive, negative answer. See Report on Federal Escape Offenses in Fiscal Years 2006 and 2007, p. 6 (Nov.2008) (hereinafter Commission's Report), reprinted in part in Appendix B, infra. See also 473 F.3d, at 727 (Posner, J.) (urging that such research be done).

The Commission's Report identifies every federal case in 2006 or 2007 in which a federal sentencing court applied the Sentencing Guideline, "Escape, Instigating or Assisting Escape," 1 United States Sentencing Commission, Guidelines Manual 2P1.1 (Nov.2008), and in which sufficient detail was provided, say, in the presentence report, about the circumstances of the crime to permit analysis. The analysis included calculation of the likelihood that violence would accompany commission of the escape or the offender's later apprehension.

Of 414 such cases, 160 involved a failure to report either for incarceration (42) or for custody after having been temporarily released (118). Commission's Report 7; see also Appendix B, infra. Of these 160 cases, none at all involved violence-not during commission of the offense itself, not during the offender's later apprehension-although in 5 instances (3.1%) the offenders were armed. Ibid. The upshot is that the study strongly supports the intuitive belief that failure to report does not involve a serious potential risk of physical injury.

The three reported cases to which the Government points do not show the contrary. The Sentencing Commission culled its 160 instances from a set of federal sentences imposed over a period of 2 years. The Government apparently culled its three examples from a set of state and federal sentences imposed over a period of 30 years. Compare Eaglin, supra (CA9 1977) with Johnson, supra (Mo.Ct.App.2008). Given the larger set, the presence of three instances of violence is consistent with the Commission's data. Simple multiplication (2 years versus 30 years; federal alone versus federal-plus-state) suggests that they show only a small risk of physical violence (less than one in several thousand). And the Government provides no other empirical information.

Chambers v. United States, ___ U.S. ___, ___, 129 S.Ct. 687, 2009 WL 63882 (Jan. 13, 2009). This analysis, and approach, apply with equal force to the question whether a given conviction triggers aggravated felony immigration consequences as a crime of violence, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), on the theory that it qualifies under 18 U.S.C. 16(b) as an offense that, by its nature, involves a substantial risk that violent force will be used in its commission.

AGGRAVATED FELONY - CRIME OF VIOLENCE - AUTO THEFT
Nguyen v. Holder, 571 F.3d 524 (6th Cir. Jul. 2, 2009) (California conviction of auto theft, in violation of what is now codified at Penal Code 487(d)(i) (any person who (1) takes possession; (2) of an automobile; (3) owned or possessed by another; (4) by means of trespass and (5) with intent to permanently deprive the owner of such property; and (6) carries the automobile away), does not constitute a "crime of violence" under 18 U.S.C. 16(b), and is therefore not an aggravated felony under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for purposes of rendering the defendant deportable, because the theft offense does not by its nature, involve a "substantial risk" that physical force against the person or property of another may be used in the course of committing the offense).

BIA

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(b) -- ASSAULT WITH A DANGEROUS WEAPON
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts conviction for assault and battery with a dangerous weapon, under M.G.L. ch. 265, 15A, did not categorically constitute a crime of violence, under 18 U.S.C. 16(b), because the minimum conduct punishable under this statute did not create a substantial risk that the defendant would intentionally use physical force against person or property, since the minimum conduct included reckless conduct), applying Leocal v. Ashcroft, 543 U.S. 1 (2004).

AGGRAVATED FELONY - CRIME OF VIOLENCE - STALKING
United States v. Mohr, 554 F.3d 604 (5th Cir. Jan. 6, 2009) (South Carolina conviction for stalking, in violation of S.C.Code 1976 16-3-1700(B) is a crime of violence for purposes of the Armed Career Criminal Act; even though the judgment indicated that the defendant was convicted under the "non-violent" portion of the statute; the elements of the statute itself indicate that the offense involved a substantial potential risk of physical injury to another).

First Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(b) -- BREAKING AND ENTERING
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts conviction for breaking and entering with intent to commit a felony, M.G.L. ch. 266, 16, 18, did not categorically constitute a crime of violence, under 18 U.S.C. 16(b), because the minimum conduct punishable did not create a substantial risk that the defendant would use physical force against person or property, since the minimum conduct included nonviolent entries of rarely-occupied structures through unlocked doors or windows,; rejecting the governments argument that the court should look only to the typical case charged under the statute). NOTE: A conviction for breaking and entering a building with a sentence of imprisonment of one year or more, suspended or imposed, remains an aggravated felony under a different provision of the aggravated felony statute. 8 U.S.C. 1101(a)(43)(G) (theft offense or burglary offense with sentence of one year or more is aggravated felony); see Taylor v. United States, 495 U.S. 575, 599 (1990) (burglary defined as unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime).

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(a) -- POSSESSION OF BURGLARY TOOLS
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts conviction for possession of burglarious tools, under M.G.L. ch. 266, 49, does not categorically constitute a crime of violence as defined at 18 U.S.C. 16, because it included neither an element of force under (a) nor the substantial risk that violent force would be used under (b)).

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(b) -- POSSESSION OF BURGLARY TOOLS
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts conviction for possession of burglarious tools, under M.G.L. ch. 266, 49, does not categorically constitute a crime of violence as defined at 18 U.S.C. 16, because it included neither an element of force under (a) nor the substantial risk that violent force would be used under (b)).

AGGRAVATED FELONY - RHODE ISLAND CRIME OF VIOLENCE - THIRD-DEGREE SEXUAL ASSAULT
Aguilar v. Gonzales, ___ F.3d ___ (1st Cir. Feb. 16, 2006) (Rhode Island conviction of third-degree sexual assault, in violation of R.I. Gen. Laws 11-37-6 ["over the age of eighteen (18) and engaged in sexual penetration with another person over the age of fourteen (14) and under the age of consent, sixteen (16) years of age"], with two-year suspended term of imprisonment, constituted a "crime of violence" under 18 U.S.C. 16(b), since it involved a substantial risk that physical force would be used in its commission, and was therefore an aggravated felony crime of violence under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for deportation purposes).
http://laws.findlaw.com/1st/042735.html

Third Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - USE OF INTERSTATE COMMERCE FACILITIES FOR MURDER FOR HIRE
Ng v. Attorney General, ___ F.3d ___, 2006 WL 278879 (3d Cir. Feb. 7, 2006) (federal conviction of use of interstate commerce facilities in the commission of a murder-for-hire, in violation of 18 U.S.C. 1958, constitutes a crime of violence aggravated felony under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F) for purposes of removal, because it "poses a substantial risk that physical force will be used against another," even though the putative hitman had no intent to murder: "That some violations of 1958 will never culminate in an actual agreement or the commission of a murder does not alter our view that the natural consequence of using interstate commerce facilities in the commission of a murder-for-hire is that physical force will be used upon another.", citing United States v. Luskin, 926 F.3d 372, 379 (4th Cir. 1991) (holding that the use of interstate commerce facilities in the commission of a murder-for-hire under 18 U.S.C. 1952A, the predecessor statute to 1958, constitutes a crime of violence); United States v. Cox, 74 F.3d 189, 190 (9th Cir. 1996) (holding that defendant's conviction for soliciting the murder of his wife constitutes a "crime of violence" under U.S.S.G. 4B1.2, which defines a crime of violence as "conduct that presents a serious potential risk of physical injury to another").
http://caselaw.lp.findlaw.com/data2/circs/3rd/044672p.pdf

Fifth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - BANK ROBBERY
United States v. Dentler, 492 F.3d 306 (5th Cir. No. Jul. 3, 2007) (federal conviction in violation of 18 U.S.C. 2113(a), of attempted entry of a bank with intent to commit robbery, is not a crime of violence for Armed Career Criminal Act sentencing provisions).

AGGRAVATED FELONY - AGGRAVATED BATTERY - CRIME OF VIOLENCE
Larin-Ulloa v. Gonzales, __ F.3d __, 2006 WL 2441387 (5th Cir. Aug. 24, 2006) (Kansas conviction of aggravated battery under Kan. Stat. Ann. 21-3414(a)(1)(C), defined as intentional physical contact with a deadly weapon in a rude, insulting or angry manner defines a crime which is categorically a "crime of violence," under 18 U.S.C. 16(b) and thus an aggravated felony for removal purposes).

Seventh Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - KIDNAPPING BY PARENT
United States v. Franco-Fernandez, 511 F.3d 768 (7th Cir. Jan. 2, 2008) (Illinois offense of "putative father" child abduction, in violation of 720 ILL. COMP. STAT. 5/10-5(b)(3), is neither a crime of violence nor an aggravated felony for purposes of the increased offense levels specified in U.S.S.G. 2L1.2(b)(1)(A)(ii) and (b)(1)(C) for illegal reentry after deportation).

Eighth Circuit

AGGRAVATED FELONYMANSLAUGHTER - 18 U.S.C. 16(b) - MINNESOTA CONVICTION FOR SECOND-DEGREE MANSLAUGHTER NOT A COV SINCE NO SUBSTANTIAL RISK THAT THE ACTOR WILL INTENTIONALLY USE FORCE IN THE COMMISSION OF THE OFFENSE
United States v. Torres-Villalobos, 487 F.3d 607, ___, (8th Cir. May 9, 2007) (Minnesota conviction for second-degree manslaughter, in violation of Minn.Stat. 609.205, did not qualify as crime of violence, under 18 U.S.C. 16(b), and is therefore not an "aggravated felony," under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), since it does not "involve a risk that the perpetrator will intentionally use physical force in the course of committing the offense. A perpetrator's knowing disregard of a serious risk of injury, as required by the Minnesota manslaughter statute, is different from a robber or burglar ignoring the risk that he may resort to the intentional use of force in committing the offense."), overruling United States v. Moore, 38 F.3d 977, 981 (8th Cir. 1994) (decided under 18 U.S.C. 924(c)(3)); see also Omar v. INS, 298 F.3d 710, 715-17 (8th Cir. 2002) (holding that criminal vehicular homicide is a crime of violence under 16 for immigration purposes).

Ninth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 US.C. 16(b) " POSSESSION OF SHORT-BARRELED SHOTGUN
United States v. Reyes, ___ F.Supp.2d ___, ___, 2012 WL 5389697 (N.D.Cal., 2012) (conviction of possession of a short-barreled shotgun is not a crime of violence within the meaning of 18 U.S.C. 16(b), because [T]he risk of physical force central to the definition of a crime of violence under 16(b) is the risk of its use in the course of committing the offense"its use in completing the crime.); noting that United States v. Dunn, 946 F.2d 615, 620"21 (9th Cir.1991), has been effectively overruled by Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004); see Covarrubias"Teposte v. Holder, 632 F.3d 1049, 1053 (9th Cir. 2011) (embracing the reasoning of Leocal in defining a crime of violence under 18 U.S.C. 16(b), the court held that a California conviction for shooting at an inhabited dwelling or vehicle under California Penal Code 246 was not categorically a crime of violence: In order to be a predicate offense under either 16 approach, the underlying offense must require proof of an intentional use of force or a substantial risk that force will be intentionally used during its commission.), citing United States v. Gomez"Leon, 545 F.3d 777 (9th Cir. 2008) (emphasis added).

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 US.C. 16(b) " POSSESSION OF SHORT-BARRELED SHOTGUN
United States v. Reyes, 907 F.Supp.2d 1068 (N.D.Cal., 2012) (conviction of possession of a short-barreled shotgun is not a crime of violence within the meaning of 18 U.S.C. 16(b), because [T]he risk of physical force central to the definition of a crime of violence under 16(b) is the risk of its use in the course of committing the offense"its use in completing the crime.); noting that United States v. Dunn, 946 F.2d 615, 620"21 (9th Cir.1991), has been effectively overruled by Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004); see Covarrubias"Teposte v. Holder, 632 F.3d 1049, 1053 (9th Cir. 2011) (embracing the reasoning of Leocal in defining a crime of violence under 18 U.S.C. 16(b), the court held that a California conviction for shooting at an inhabited dwelling or vehicle under California Penal Code 246 was not categorically a crime of violence: In order to be a predicate offense under either 16 approach, the underlying offense must require proof of an intentional use of force or a substantial risk that force will be intentionally used during its commission.), citing United States v. Gomez"Leon, 545 F.3d 777 (9th Cir. 2008) (emphasis added).

AGGRAVATED FELONY " BURGLARY " BURGLARY OF A DWELLING
United States v. Reina-Rodriguez, 655 F.3d 1182 (9th Cir. Sept. 13, 2011) (Utah conviction of second-degree burglary of a dwelling, under Utah Code Ann. 76"6"202(2), did not categorically constitute a burglary of a dwelling crime of violence under U.S.S.G. 2L1.2(b)(1)(A)(ii) & n.1(B)(iii), because Utah law defined dwelling more broadly than it is defined in the federal Guidelines definition of burglary of a dwelling); following United States v. Grisel, 488 F.3d 844, 851 n.5 (9th Cir.2007) (en banc) (state statutes do not categorically constitute burglary when they define it to include non-buildings adapted for overnight accommodation; courts must utilize the modified categorical approach to determine whether a dwelling in Utah meets the Guidelines' definition of dwelling.; A non-building adapted for accommodation"e.g., a vehicle or boat"may still qualify as a dwelling under the Guidelines, but it does not do so categorically.).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ESCAPE FROM PRISON DOES NOT CATEGORICALLY CONSTITUTE A CRIME OF VIOLENCE WHERE STATUTE DOES NOT DISTINGUISH BETWEEN VIOLENT AND NON-VIOLENT ESCAPES
United States v. Savage, 488 F.3d 1232, ___, (9th Cir. Jun. 12, 2007) (Montana conviction of escape, in violation of Montana Code Annotated 45-7-306(2) (escape includes purposeful "fail[ure] to return to official detention following temporary leave granted for a specific purpose or limited time" as well as "knowingly or purposely elud[ing] official detention."), constitutes a crime of violence under U.S.S.G. 4B1.2(a) (including as "crimes of violence" offenses with an element of force, or a listed offense, "or otherwise involves conduct that presents a serious potential risk of physical injury to another.") for purposes of enhancing a sentence for a federal firearms offense, where plea colloquy revealed defendant's admission he escaped from a jail, as opposed to a facility from which he was permitted to enter and leave: "The potential risk of injury to others during an escape from a guarded facility is as great whether or not the escapee is observed and there is an attempt to stop him. Thus even were the facts of Savage's "clean getaway" noticeable under the modified categorical analysis, they would not bear on the potential for risk of injury to others.").

AGGRAVATED FELONY - STALKING - CRIME OF VIOLENCE
Malta-Espinoza v. Gonzales, __ F.3d __ , 2007 WL 624532 (9th Cir. Mar. 2, 2007) (California stalking conviction, in violation of Penal Code 649.9, is not an aggravated felony crime of violence for immigration purposes, since even the more serious portion of the statute does not necessarily create a risk that force may be used; the California stalking statue requires an intent to create fear, but not require intent to carry out the threat - the statute may be violated even if the defendant was incarcerated or thousands of miles away and completely unable to carry out the threat.) http://caselaw.lp.findlaw.com/data2/circs/9th/0471140p.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 USC 16(b) - STALKING NOT AGGRAVATED FELONY SINCE IT MIGHT HAVE BEEN COMMITTED BY HARASSMENT FROM A DISTANCE, WHICH DOES NOT PRESENT A SUBSTANTIAL RISK THAT VIOLENT FORCE WILL INTENTIONALLY BE USED IN THE COMMISSION OF THE OFFENSE
Malta-Espinoza v. Gonzales, ___ F.3d ___, 2007 WL 624532 (9th Cir. March 2, 2007) (California conviction of stalking [harassing or following with threats], in violation of Penal Code 646.9, did not constitute an aggravated felony crime of violence, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), as defined by 18 U.S.C. 16(b), because the offense might have been committed by harassment from a distance, which does not present a substantial risk that violent force will be used in the commission of the offense).

AGGRAVATED FELONY - BURGLARY - CRIME OF VIOLENCE
United States v. Reina-Rodriguez, ___ F.3d ___ (9th Cir. Nov. 15, 2006) (Utah conviction of second-degree attempted aggravated burglary, under Utah Code Ann. 76-6-203, does not necessarily constitute a "crime of violence" illegal reentry sentencing purposes since Utah conviction of attempted aggravated burglary does not require an entry into a dwelling). http://caselaw.lp.findlaw.com/data2/circs/9th/0510475p.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - POSSESSION OF DANGEROUS WEAPON
United States v. Reina-Rodriguez, ___ F.3d ___ (9th Cir. Nov. 15, 2006) (Utah conviction of second-degree attempted aggravated burglary, under Utah Code Ann. 76-6-203, does not necessarily constitute a "crime of violence" illegal reentry sentencing purposes, because Utah conviction of attempted aggravated burglary may be committed by merely possessing a dangerous weapon while committing or attempting to commit a burglary, and such possession does not involve the use or threat of force), following United States v. Serna, 435 F.3d 1046, 1047 (9th Cir. 2006) (interpreting different "career criminal" guideline, USSG 4B1.2 [defining "crime of violence" differently, to include "conduct that presents a serious risk of physical injury to another . . . ." which is not in USSG 2L1.2(b)(1)(A)(ii)). http://caselaw.lp.findlaw.com/data2/circs/9th/0510475p.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - UNLAWFUL SEX WITH A MINOR - HELD NOT TO BE A CRIME OF VIOLENCE
Valencia v. Gonzales, ___ F.3d ___, 2005 WL 3358678 (9th Cir. Dec. 12, 2005) (original opinion, 406 F.3d 1154, superseded and withdrawn on denial of rehearing and rehearing en banc) (California conviction of engaging in unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator under Penal Code section 261.5(c) is not, absent aggravating factors, a crime of violence under 18 U.S.C. 16 for deportation purposes, since it does not have force as an element, under 16(a), and the full range of conduct encompassed by this offense does not present a substantial risk that violent force will be used in the commission of the offense under 16(b); mere inability to give legal consent if under 18 does not create a substantial risk that violent force will be used to commit the offense where actual consent is present; decision did not consider whether this conviction constituted a sexual abuse of a minor aggravated felony because the noncitizen was not ordered removed on that ground).
http://caselaw.lp.findlaw.com/data2/circs/9th/0372028p.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - ATTEMPTING TO ELUDE POLICE VEHICLE
United States v. Kelly, 422 F.3d 889 (9th Cir. Sept. 6, 2005) (Washington State conviction for attempting to elude a police vehicle, in violation of RCW 46.61.024, is not a "crime of violence" for sentencing purposes)
http://caselaw.lp.findlaw.com/data2/circs/9th/0430074p.pdf

Tenth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - BURGLARY - "DWELLING"
United States v. Rivera-Oros, 590 F.3d 1123 (10th Cir. Dec. 29, 2009) (burglary of a "dwelling" includes any "enclosed space that is used or intended for use as a human habitation," including mobile homes, house boats, camp structures, and hotel rooms).

AGGRAVATED FELONY - CRIME OF VIOLENCE - BURGLARY - TAYLOR DOES NOT CONTROL SENTENCING CASES USING PHRASE "BURGLARY OF A DWELLING"
United States v. Rivera-Oros, 590 F.3d 1123 (10th Cir. Dec. 29, 2009) (Taylor definition of "burglary" does not control decision of meaning of "burglary of a dwelling," which is enumerated in the list of crimes considered to be crimes of violence for illegal re-entry sentencing purposes), following United States v. Murillo-Lopez, 444 F.3d 337 (5th Cir. 2006), disagreeing with United States v. Wenner, 351 F.3d 969 (9th Cir. 2003) (applying Taylor definition of burglary to illegal re-entry sentencing case).

Other

AGGRAVATED FELONY " CRIME OF VIOLENCE " RESISTING EXECUTIVE OFFICER
People v. Nishi, 207 Cal.App.4th 954, 143 Cal.Rptr.3d 882 (1st Dist. Jul. 13, 2012) (California Penal Code 69, attempting to deter or resist an executive officer in the performance of duty, is affirmed where the prosecution established the elements of the offense by substantial evidence; the central requirement of an offense under 69 is an attempt to deter an executive officer from performing his or her duties imposed by law; unlawful violence, or a threat of unlawful violence, is merely the means by which the attempt is made; such threat is limited to a threat of unlawful violence used in an attempt to deter the officer).