Safe Havens

An offense falls within this definition only if there is a substantial risk that violent force may be used “in the commission of the offense.” [463]  This gives rise to the argument that in some offenses, the risk is not that violent force may be used in the commission of the offense, since the offense has already been committed before the opportunity arose for the defendant to use force.

The Fifth Circuit was the first squarely to hold that a felony driving under the influence conviction does not constitute a crime of violence for aggravated felony purposes.[464]  The rationale was that intentional force against the person or property of another is seldom, if ever, employed to commit the offense of felony driving while intoxicated. 

            The Fifth Circuit held that a California conviction of possession of dangerous weapon, a dagger,[465] does not constitute an aggravated felony,[466] for purposes of as illegal re-entry sentence enhancement under U.S.S.G. § 2L1.2, since it is not a crime of violence under 18 U.S.C. 16(a) or (b) because there is no substantial risk offender might use violence in commission of the possession offense.[467]

[463] 18 U.S.C. § 16(b).

[464] United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001). 

[465] California Penal Code § 12020(a).

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

[467] United States v. Medina-Anicacio, 325 F.3d 638 (5th Cir. March 24, 2003).