Aggravated Felonies

 

(B)  Crime of Violence.  While a conviction must qualify as a crime of violence under 18 U.S.C. § 16 in order to trigger removal as an aggravated felony, the federal courts apply a different definition[403] to determine whether the same conviction would be a crime of violence for sentencing purposes.[404]  Thus, recent federal decisions defining “crime of violence” for sentence enhancement purposes may be distinguished from decisions defining it under 18 U.S.C. § 16 for removal purposes, because they are interpreting different language.[405]

 

The crime of violence definition applied in the sentencing context differs in a number of ways from the definition used for immigration purposes, including:[406]

 

(1)  The Guidelines definition includes a laundry list of offenses that are considered crimes of violence without further analysis (i.e., murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor,[407] robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling).  Therefore, a conviction for one of these listed offenses will be considered a crime of violence for sentencing purposes, even though the statute of conviction may fail the tests under 18 U.S.C. § 16.[408]

 

(2)  The Guidelines definition does not include unlisted offenses that lack an element of use of force but do involve a substantial risk that force would be used in the commission of the offense.[409]

 

(3)  The Guidelines definition does not include offenses that involve the use, attempted use, or threatened use of physical force against property.[410]  Therefore, an offense that would qualify as an aggravated felony crime of violence, applying 18 U.S.C. § 16(b), because it was committed against property, would only receive an 8-level increase as an aggravated felony, but not a 16-level increase as a crime of violence under the guidelines. [411]

Since the sentencing guidelines provide separate definitions of other types of offenses that may also be aggravated felonies (i.e., child pornography, drug trafficking, and firearms offenses), immigration/sentencing splits may develop in those areas as well.[412]

[403] “‘Crime of violence’ means any of the following: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.”  U.S.S.G. § 2L1.2, cmt n. 1(B)(iii).

[404] Note that there is another definition of “crime of violence” under the guidelines which is used, inter alia, for purposes of sentencing under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B), which is also distinguishable from the definition under 18 U.S.C. § 16.  U.S.S.G. § 4B1.2 (“any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that--(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”).  See, e.g., United States v. Lee, 310 F.3d 787 (5th Cir. Oct. 28, 2002).  This definition was applied in the illegal re-entry sentencing context prior to November 1, 2001.

[405] Appendices A and B, infra, include cases arising in removal, illegal re-entry and ACCA contexts.

[406] See § § 5.23-5.33, infra, for an extensive discussion of 18 U.S.C. § 16(b).

[407] It is possible a split may develop on what is considered sexual abuse of  a minor.  See United States v. Izaguirre-Flores, 405 F.3d 270 (5th Cir. Mar. 31, 2005) (applying a “common sense” approach to defining sexual abuse of a minor, rather than Taylor categorical and “generic offense” analysis to find conviction for taking indecent liberties with a child, in violation of North Carolina General Statute § 14-202.1(a)(1), to be a crime of violence for sentencing purposes).

[408] Statutory rape may be a good example of where this might occur.  See Valencia v. Gonzales, 431 F.3d 673 (9th Cir. Dec. 12, 2005) (California conviction of engaging in unlawful sexual intercourse with a minor who is more than three years younger than the actor under Penal Code § § 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 18 U.S.C. § 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 18 U.S.C. § 16(b)), opinion withdrawn and superseded, 439 F.3d 1046 (9th Cir. Mar. 6, 2006), original opinion, 406 F.3d 1154 (9th Cir. May 12, 2005), superseded and withdrawn on denial of rehearing and rehearing en banc.

[409] Compare United States v. Lopez-Montanez, 421 F.3d 926 (9th Cir. Aug. 26, 2005) (California conviction of sexual battery under California Penal Code § 243.4, is not a categorical crime of violence under the federal Sentencing Guidelines, as the offense is not necessarily a “forcible” sex offense under U.S.S.G. § 2L1.2, cmt. n. 1(B)(ii)), with Lisbey v. Gonzales, 420 F.3d 930 (9th Cir. Aug. 22, 2005) (sexual battery under California Penal Code § 243.4 constitutes an aggravated felony for removal purposes, as the offense involves a substantial risk of physical force under 18 U.S.C. § 16(b)).

[410] As of November 1, 2001.

[411] United States v. Kelly, 422 F.3d 889 (9th Cir. Sept. 6, 2005); United States v. Jaimes-Jaimes, 406 F.3d 845, 849 (7th Cir. May 4, 2005) (“Notably, ‘crime of violence’ is defined more narrowly in § 2L1.2 than in other contexts because the definition does not encompass acts involving the use of force against property or acts that merely pose a risk of harm to another person.”).  Cf. United States v. Alfaro, 408 F.3d 204 (5th Cir. Apr. 28, 2005) (Virginia conviction of shooting into an occupied dwelling, in violation of Va.Code § 18.202-79 (1993), did not constitute a crime of violence for purposes of enhancing sentence for illegal re-entry by sixteen levels under U.S.S.G. § 2L1.2(b)(1)(A)(ii), because (a) this offense is not enumerated in the guideline, and (b) it does not have as an element the use or threat of force against another, since a defendant could violate this statute merely by shooting a gun at a building that happens to be occupied or by discharging a firearm within an unoccupied school building, without actually shooting, attempting to shoot, or threatening to shoot another person).

[412] Compare, e.g., INA § 101(a)(43)(I), 8 U.S.C. § 1101(a)(43)(I) (child pornography under 18 U.S.C. § § 2251, 2251A or 2252), with U.S.S.G. § 2L1.2, cmt. n. 1(B)(ii) (child pornography under 18 U.S.C. § § 2251, 2251A, 2252, 2252A, and 2260).