The force necessary to constitute a crime of violence must be present in the essential elements of the statute of conviction, rather than as a fact present in the underlying circumstances of the case.[111]  See § 4.17, supra.  In Leocal v. Ashcroft,[112] the United States Supreme Court reaffirmed the necessity to analyze the elements of the offense of conviction, rather than to look to the facts of the conduct involved.[113]  The federal courts agree.[114]  See § § 4.2-4.7, supra.

            If the elements of the statute of conviction do not require the use of force, then a conviction of violating the statute cannot be an aggravated felony.[115]

[111] See, e.g., United States v. Gonzalez-Chavez, 432 F.3d 334 (5th Cir. Nov. 30, 2005) (aggravated battery under § 784.045 of the Florida Statutes is a divisible statute, as the offense may be committed by any assault on a pregnant woman, including spitting, which does not involve the use, attempted use, or threatened use of force, and therefore may not be an aggravated felony crime of violence for sentencing purposes).

[112] Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377 (Nov. 9, 2004).

[113] Id. at 381.

[114] See, e.g., Valencia v. Gonzales, 439 F.3d 1046 (9th Cir. Mar. 6, 2006) (California conviction of engaging in unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator under Penal Code § 261.5(c) is not a crime of violence under 18 U.S.C. § 16(a), since it does not have force as an element); United States v. Jaimes-Jaimes, 406 F.3d 845 (7th Cir. May 4, 2005) (Wisconsin conviction for discharging a firearm into a vehicle or building, in violation of W.S.A. § 941.20(2)(a), was not a conviction for a “crime of violence” for illegal re-entry sentencing purposes, since the elements of the offense of conviction did not require that the trier of fact conclude that defendant used or threatened use of physical force against the person of another).

[115] See, e.g., United States v. Hernandez-Hernandez, 431 F.3d 1212 (9th Cir. Dec. 16, 2005) (California conviction of felony false imprisonment, in violation of Penal Code § 236, constitutes a divisible statute, encompassing some offenses that constitute crimes of violence within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii), and some that do not; if defendant was or might have been convicted of committing false imprisonment by fraud or deceit, the conviction would not fall within the crime of violence portion of the divisible statute, for purposes of assessing a 16-level increase in base offense level for illegal re-entry); Szucz-Toldy v. Gonzalez, 400 F.3d 978 (7th Cir. Mar. 11, 2005) (Illinois conviction for “harassment by telephone” under 720 ILCS § 135/1-1(2), prohibiting “making a telephone call, whether or not conversation ensues, with intent to abuse, threaten or harass any person at the called number,” is not an aggravated felony crime of violence for immigration purposes because it is not necessary to prove the use or threatened use of physical force to sustain a conviction under the statute).

BIA

AGGRAVATED FELONY " CRIME OF VIOLENCE " SODOMY BY FORCE
Matter of Chavez-Alvarez, 26 I. & N. Dec. 274 (BIA Mar. 14, 2014) (military crime of sodomy by force in violation of Uniform Code of Military Justice, article 125, 10 U.S.C. 925, and the Punitive Articles of the MCM relating to sodomy, is a crime of violence under 18 U.S.C. 16).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT WITH INTENT TO COMMIT A LISTED FELONY
Matter of Ramon Martinez, 25 I&N Dec. 571 (BIA 2011) (California conviction of assault with intent to commit a felony, in violation of Penal Code 220, is categorically an aggravated felony crime of violence, even though the record of conviction did not specify which felony he intended to commit, because all the enumerated felonies listed in that statute constitute crimes of violence).

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 U.S.C. 16(a)
Matter of Perez Ramirez, 25 I. & N. Dec. 203 (BIA Mar. 17, 2010) (California conviction for misdemeanor willful infliction of corporal injury on a spouse, in violation of Penal Code 273.5(a), qualifies categorically as a conviction for a "crime of violence" within the meaning of 18 U.S.C. 16(a)).

First Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT WITH A DEADLY WEAPON
United States v. Whindleton, 797 F.3d 105 (1st Cir. Aug. 10, 2015) (Massachusetts conviction for conviction for assault with a deadly weapon under Massachusetts General Laws ch. 265, 15B(b) [[w]hoever, by means of a dangerous weapon, commits an assault upon another.], constitutes a violent felony under the ACCA); following United States v. Am, 564 F.3d 25, 33 & n. 9 (1st Cir. 2009) (an ADW conviction under under Massachusetts General Laws ch. 265, 15B(b) clearly satisfies the ACCA's Force Clause). Note: At issue in this case is whether the Massachusetts offense of assault with a dangerous weapon (ADW), Mass. Gen. L. ch. 265, 15B(b), has an element the use, attempted use, or threatened use of physical force as defined in the federal Armed Career Criminal Act (ACCA). This question is relevant under immigration law, because the aggravated felony definition of crime of violence includes identical language. 18 U.S.C. 16(a). Whindleton, supra, at 112. Immigration attorneys should note that the First Circuit may have left open an argument regarding the degree of intent necessary for an ADW conviction and whether that intent is sufficient for a violent felony or a crime of violence. See Whindleton at n.9 & n.12.

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(a) -- 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(a), because the minimum conduct punishable under this statute does not have as an element the use of violent force, but instead covers even the slightest touching with a dangerous weapon).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT
Lopes v. Keisler, 505 F.3d 58 (1st Cir. Oct. 26, 2007) (Rhode Island conviction for assault and battery, in violation of Gen.Laws 1956, 11-5-3, is an aggravated felony for immigration purposes, since the statue requires "use of force" as an element; although the statute does not define "assault," the Rhode Island Supreme Court has defined assault as an attempt to do a bodily harm to another person with "force or violence"; "because section 11-5-3 does not provide a definition of assault, the BIA appropriately looked to Rhode Island case law to determine how the state defines the crime.").

Second Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " THIRD-DEGREE BURGLARY
United States v. Folkes, 622 F.3d 152 (2d Cir. Sept. 29, 2010) (per curiam) (New York conviction of third degree burglary, in violation of N.Y. Penal Law 140.20 [knowingly enters or remains unlawfully in a building with intent to commit a crime therein.], did not categorically constitute crime of violence for illegal re-entry sentencing purposes, since the statute does not necessarily involve use of force against another).

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 U.S.C. 16(a) -- MASSACHUSETTS CONVICTION OF ASSAULT ON OFFICER UNDER INTENTIONAL THEORY CONSTITUTED CRIME OF VIOLENCE SINCE HAS ELEMENT OF USE OF FORCE
Blake v. Gonzales, ___ F.3d ___, ___, 2007 WL 914865 (2d Cir. March 28, 2007) (Massachusetts statute defining offense of assault on police officer and other categories of public official, Massachusetts General Laws chapter 265, section 13D, under intentional theory of assault, constitutes a crime of violence under 18 U.S.C. 16(a), since it has an element of use of force).

Fourth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " RESISTING ARREST
United States v. Aparicio-Soria, 740 F.3d 152 (4th Cir. Jan. 14, 2014) (en banc) (Maryland conviction of resisting arrest, in violation of Md. Code, Crim. Law 9"408(b)(1) [[a] person may not intentionally ... resist a lawful arrest.], does not qualify categorically as a "crime of violence" within the meaning of the residual force clause of U.S.S.G. 2L1.2(b)(1)(A), because it does not have as an element the use, attempted use, or threatened use of physical force against the person of another).

AGGRAVATED FELONY " CRIME OF VIOLENCE " RESISTING ARREST
United States v. Aparicio-Soria, 740 F.3d 152 (4th Cir. Jan. 14, 2014) (en banc) (Maryland conviction of resisting arrest, in violation of Md. Code, Crim. Law 9"408(b)(1) [[a] person may not intentionally ... resist a lawful arrest.], does not qualify categorically as a "crime of violence" within the meaning of the residual force clause of U.S.S.G. 2L1.2(b)(1)(A), because it does not have as an element the use, attempted use, or threatened use of physical force against the person of another).

AGGRAVATED FELONY " CRIME OF VIOLENCE " CHILD ABUSE
United States v. Gomez, 690 F.3d 194 (4th Cir. Aug. 10, 2012) (Maryland conviction of child abuse, in violation of Maryland Code 1957, Article 27, 35C, was not a crime of violence for illegal re-entry sentencing purposes because the offense could be committed without use of force).

AGGRAVATED FELONY - CRIME OF VIOLENCE - MALICIOUS BURNING OF PROPERTY CONSTITUTES CRIME OF VIOLENCE
Mbea v. Gonzales, ___ F.3d ___, 2007 WL 852346 (4th Cir. March 22, 2007) (District of Columbia conviction of malicious burning of property, in violation of D.C.Code 22-401 (1994) [current version at D.C.Code Ann. 22-301 (2000)], with an indeterminate sentence from 18 months to five years imprisonment, constitutes a crime of violence, under 18 U.S.C. 16(a), and therefore an aggravated felony which renders him statutorily ineligible for cancellation of removal under INA 240(A)(a) and for a hardship waiver under INA 212(h)(1)(B), since: "Fire is itself a physical force. Indeed, the Oxford English Dictionary defines "physical force" as, inter alia, "an influence acting within the physical world, a force of nature." See Oxford English Dictionary (2003). Fire is nothing if not a "force of nature" that exerts an influence "within the physical world." For fire not only has the power to provide warmth and light, but also the power to destroy."); see United States v. Mitchell, 23 F.3d 1, 2 n.3 (1st Cir. 1994) (per curiam) (holding that federal arson as set forth in 18 U.S.C. 844(i) is a "crime of violence" under 18 U.S.C. 3156(a)(4)); United States v. Marzullo, 780 F.Supp. 658, 662 & n. 7 (W.D.Mo. 1991) (same); United States v. Shaker, 665 F.Supp. 698, 702 n. 4 (N.D.Ind. 1987) (same). http://caselaw.lp.findlaw.com/data2/circs/4th/051204p.pdf

Fifth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " AGGRAVATED ASSAULT
United States v. Esparza-Perez, 681 F.3d 228 (5th Cir. May 14, 2012) (Arkansas conviction of aggravated assault [[e]ngag[ing] in conduct that creates a substantial danger of death or serious physical injury to another person.] is not a crime of violence under the residual clause of USSG 2L1.2, because the statute does not require any contact or injury or attempt or threat of offensive contact or injury, thus did not have as an element "the use, attempted use, or threatened use of physical force against the person of another).

AGGRAVATED FELONY " CRIME OF VIOLENCE " AGGRAVATED ASSAULT
United States v. Esparza-Perez, 681 F.3d 228 (5th Cir. May 14, 2012) (Arkansas conviction of aggravated assault, in violation of Ark. Code 5-13-204(a)(1), is not a crime of violence for illegal re-entry sentencing purposes, under U.S.S.G. 2L1.2 cmt. n.1(B)(iii), because it does not require proof of an assault as that crime is generally defined"i.e., as an offense that involves the use, attempted use, or threatened use of offensive contact against another person).

AGGRAVATED FELONY"CRIME OF VIOLENCE"SEXUAL ACTIVITY WITH A MINOR
United States v. Chavez-Hernandez, 671 F.3d 494 (5th Cir. Feb. 13, 2012) (Florida conviction for sexual activity with a minor, in violation of Florida Statute 794.05, was not a crime of violence for illegal re-entry sentencing purposes, because state statute applied to 17-year-olds; defense counsel's admission at sentence that victim was 14 years of age established victim's status as a minor under the federal standard).

AGGRAVATED FELONY"CRIME OF VIOLENCE"DOMESTIC ASSAULT AND BATTERY
United States v. Miranda-Ortegon, 670 F.3d 661 (5th Cir. Feb. 10, 2012) (Oklahoma conviction for domestic assault and battery, in violation of Okla. Stat. tit. 21, 644C [[a]ny person who commits an assault and battery against a current or former spouse ... [or] a child ... shall be guilty of domestic abuse.], did not constitute an aggravated felony crime of violence for illegal re-entry sentencing purposes because the elements of the offense require only the slightest touching is necessary to constitute the force or violence element of battery.); quoting Steele v. State, 778 P.2d 929, 931 (Okla.Crim.App.1989); see United States v. Smith, 652 F.3d 1244, 1246 (10th Cir.2011) (Oklahoma assault-and-battery offense did not fall within the first prong of the Armed Career Criminal Act [has as an element the use, attempted use, or threatened use of physical force against the person of another, 18 U.S.C. 924(e)(2)(B)(i)]); see Johnson v. United States, """ U.S. """", 130 S.Ct. 1265, 1269"71, 176 L.Ed.2d 1, (2010) (holding that Florida felony battery conviction was not a violent felony under 18 U.S.C. 924(e)(1)(2)(B)(i), because the offense's elements are satisfied by any physical contact, no matter how slight (quotation marks and internal citation omitted)).

AGGRAVATED FELONY " CRIME OF VIOLENCE " CORPORAL INJURY OF A SPOUSE
United States v. Cruz-Rodriguez, 625 F.3d 274, 276 (5th Cir. Nov. 2, 2010) (per curiam) (California conviction of willful infliction of corporal injury, in violation of Penal Code 273.5(a), constituted a crime of violence under U.S.S.G. 2L1.2(b)(1)(A)(ii), for purposes of imposing a 16-level enhancement to the offense level for illegal reentry sentence: With respect to the willful infliction of corporal injury offense, we previously rejected this argument in an unpublished opinion, holding that California Penal Code 237.5(a) penalizes the intentional use of force that results in a traumatic condition. United States v. Gutierrez, 371 Fed.Appx. 550, 551 (5th Cir.2010) (unpublished) (internal quotation marks and citation omitted). We find this reasoning persuasive. Moreover, our previous decision is consistent with the Ninth Circuit's analysis of 237.5(a). United States v. Laurico-Yeno, 590 F.3d 818, 820 (9th Cir.2010), cert. denied, --- U.S. ----, 131 S.Ct. 216, 2010 WL 2551985 (2010) (Because the use of physical force against the person of another is an element of the statute, we hold that California Penal Code 273.5 is a categorical crime of violence under U.S.S.G. 2L1.2.). Accordingly, we hold that the offense of willful infliction of corporal injury is a crime of violence for the purpose of sentence adjustments under U.S.S.G. 2L1.2(b)(1)(A)(ii).).

AGGRAVATED FELONY " CRIME OF VIOLENCE " CRIMINAL THREATS
United States v. Cruz-Rodriguez, 625 F.3d 274, 277 (5th Cir. Nov. 2, 2010) (per curiam) (California conviction of criminal threats, in violation of Penal Code 422, did not constitute a crime of violence under U.S.S.G. 2L1.2(b)(1)(A)(ii), for purposes of imposing a 16-level enhancement to the offense level for illegal reentry sentence: On the other hand, with respect to the offense of making a criminal threat, we previously held in an unpublished opinion that the use, attempted use, or threatened use of physical force against the person of another is not an element of California Penal Code 2L1.2(b)(1)(A)(ii) because it is possible under [California] law for the State to obtain a conviction under ... the terroristic threats statute without proof of the threatened use of physical force against another person .... United States v. De La Rosa-Hernandez, 264 Fed.Appx. 446, 447-49 (5th Cir.2008) (unpublished) (internal quotation marks and citations omitted) (alteration in original). We likewise find this reasoning persuasive. In addition, this court reached the same conclusion with respect to a similar Pennsylvania statute, holding that the generic terroristic-threat offense at issue in that case is not a crime of violence. United States v. Ortiz-Gomez, 562 F.3d 683, 684-86 (5th Cir.2009). Therefore, we hold that the offense of making a criminal threat is not a crime of violence for the purpose of sentencing adjustments under U.S.S.G. 2L1.2(b)(1)(A)(ii).).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT
United States v. Neri-Hernandes, 504 F.3d 587 (5th Cir. Oct. 12, 2007) (New York conviction for attempted assault, in violation of N.Y. McKinney's Penal Law 120.05, is categorically a crime of violence for illegal re-entry sentencing purposes).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT
United States v. Neri-Hernandes, 504 F.3d 587 (5th Cir. Oct. 12, 2007) (New York conviction for attempted assault, in violation of N.Y. McKinney's Penal Law 120.05, is categorically a crime of violence for illegal re-entry sentencing purposes).

AGGRAVATED FELONY - CRIME OF VIOLENCE - CHILD MOLESTATION
United States v. Beliew, 492 F.3d 314 (5th Cir. Jul. 5, 2007) (Louisiana conviction for child molestation, in violation of L.S.A.-R.S. 14:81.2(A), is a crime of violence for Armed Career Criminal Act purposes, as a "forcible sex offense" since it requires as an element, "force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or ... use of influence by virtue of a position of control or supervision over the juvenile"; finding that use of influence over juvenile was "constructive" use of force.)

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 - CRIME OF VIOLENCE - ASSAULT ON POLICE OFFICER
United States v. Fierro-Reyna, __ F.3d __ (5th Cir. Sept. 28, 2006) (Texas conviction from 1979 for aggravated assault on a police officer, in violation of Penal Code 22.02(a)(2) (1974) [punishing simple assault on a police officer] is not a "crime of violence" for illegal re-entry sentencing purposes, since simple assault does not necessarily require use of force; state classification of assault as aggravated because it is committed against a police officer is irrelevant). http://caselaw.lp.findlaw.com/data2/circs/5th/0551198cr0p.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - AGGRAVATED BATTERY WITH DEADLY WEAPON
United States v. Velasco, ___ F.3d ___, 2006 WL 2729670 (5th Cir. Sept. 27, 2006) (Illinois conviction for aggravated battery, under 720 IL. COMP. STAT. 5/12-4(a), (b)(1) (1995) ["aggravated battery" in this case, according to the indictment, occurred when "[a] person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement" by use of a deadly weapon other than by the discharge of a firearm], was a "crime of violence" warranting 16-level enhancement of defendant's sentence for illegal reentry, under USSG 2L1.2(b)(1)(A), since "use" of a deadly weapon to cause bodily harm is sufficient to require use of force against the person of another, and the indictment was included in the record of conviction). http://caselaw.lp.findlaw.com/data2/circs/5th/0510451cr0p.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - ATTEMPTED SEXUAL BATTERY
United States v. Meraz-Enriquez, __ F.3d __, 2006 WL 515477 (5th Cir. Mar. 3, 2006) (Kansas conviction of attempted sexual battery, in violation of Kan. Stat. Ann. 21- 3518, which punishes a sexual touching of a person who is too intoxicated to be able to give consent to the touching, is not a crime of violence for illegal re-entry sentencing purposes because the offense does not require the use of force).

Sixth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " ATTEMPTED KIDNAPPING
United States v. Soto-Sanchez, 623 F.3d 317 (6th Cir. Oct. 5, 2010) (Michigan conviction of attempted kidnapping, in violation of M.C.L.A. 750.349, constituted a crime of violence under U.S.S.G. 2L1.2(b)(1)(A), for illegal re-entry sentencing purposes, since all six offenses punished by the kidnapping statute either fall within the generic, contemporary meaning of kidnapping or have an element involving the use of force).

Seventh Circuit

AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " AGGRAVATED SEXUAL ABUSE
United States v. Sandoval Ramirez, ___ F.3d ___, 2011 WL 2864417 (7th Cir. Jul. 20, 2011) (Illinois conviction for aggravated criminal sexual abuse, in violation of 720 ILCS 5/12"16(d), qualified as sexual abuse of a minor, within the enumerated offenses of the crime of violence definition, for purposes of imposing a 16"level illegal reentry sentence enhancement under U.S.S.G. 2L1.2(b)(1)(A)(ii), since all of the different offenses within that statute constitute intentional acts of a sexual nature against a minor).

AGGRAVATED FELONY - CRIME OF VIOLENCE - DOMESTIC BATTERY
LaGuerre v. Mukasey, 526 F.3d 1037 (7th Cir. May 20, 2008) (per curiam) (Illinois conviction of domestic battery, in violation of 720 ILCS 5/12-3.2(a)(1) ["[a] person commits domestic battery if he intentionally or knowingly without legal justification by any means: (1) Causes bodily harm to any family or household member."], constituted a crime of violence, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), and 18 U.S.C. 16(a), for deportation purposes, because, as 16(a) requires, it has as an element the use of physical force."), following United States v. Upton, 512 F.3d 394, 405 (7th Cir. 2008) ("This provision of the statute unambiguously requires proving physical force: to sustain his conviction for domestic battery, the state had to prove that he [c]ause[d] bodily harm, which means that it had as an element the use ... of physical force against the person of another..").

AGGRAVATED FELONY - CRIME OF VIOLENCE - BATTERY
LaGuerre v. Mukasey, 526 F.3d 1037 (7th Cir. May 20, 2008) (Illinois conviction of domestic battery, in violation of 720 ILCS 5/12-3.2(a)(1) ["intentionally or knowingly without legal justification by any means: (1) Causes bodily harm to any family or household member."], qualifies as a crime of violence under 18 U.S.C. 16(a), and therefore under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), because, as 16(a) requires, it has as an element the use of physical force), following United States v. Upton, 512 F.3d 394, 405 (7th Cir. 2008) ("This provision of the statute unambiguously requires proving physical force: to sustain his conviction for domestic battery, the state had to prove that he [c]ause[d] bodily harm, which means that it had as an element the use ... of physical force against the person of another.").

The reasoning of Upton, however, is incorrect. There is a great difference between the element of causing bodily harm and the requirement of the use of physical force, in particular violent physical force. See Leocal v. Ashcroft, 543 U.S. 1, 9 (2004); see N. TOOBY & J. ROLLIN, AGGRAVATED FELONIES 5.19 (2006).

Eighth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - SEXUAL ABUSE OF A MINOR
United States v. Medina-Valencia, 538 F.3d 831 (8th Cir. Aug. 13, 2008) (Texas conviction for indecency with a minor, in violation of Texas Penal Code 21.11(a)(1) not categorically sexual abuse of a minor for illegal re-entry sentencing purposes; "Subsection (a)(1), then, prohibits consensual sexual contact between two persons who are a day under 17, and of the same gender. This does not fit the ordinary, contemporary, common meaning of sexual abuse of a minor.")

AGGRAVATED FELONY - CRIME OF VIOLENCE - SEXUAL ABUSE OF A MINOR
United States v. Medina-Valencia, 538 F.3d 831 (8th Cir. Aug. 13, 2008) (Texas conviction for indecency with a minor, in violation of Texas Penal Code 21.11, is sexual abuse of a minor for illegal re-entry sentencing purposes where indictment indicated that minor was under the age of seventeen and the defendant was at least 8 years older).

AGGRAVATED FELONYMANSLAUGHTER - 18 U.S.C. 16(a) - MINNESOTA CONVICTION FOR SECOND-DEGREE MANSLAUGHTER NOT A COV SINCE NO ELEMENT OF USE OF FORCE
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(a), 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 have as an essential element the intentional use of force: "Under Minnesota law, a person can commit second-degree manslaughter without using force or risking the intentional use of force. Minn.Stat. 609.205. A person can commit this crime by recklessly leaving a child alone with lit candles that later start a fire, State v. Boyer, No. C8-01-617, 2001 WL 1491450, at * 1 (Minn.Ct.App. Nov. 27, 2001), by allowing a child to die of dehydration while in the person's care, State v. Williams, No. A04-1694, 2005 WL 3046328, at * 1 (Minn.Ct.App. Nov. 15, 2005), by leaving explosives and blasting caps stored in an automobile where they are later ignited by the use of jumper cables, State v. Bicek, 429 N.W.2d 289, 291 (Minn.Ct.App.1988), and, indeed, by driving drunk with "culpable negligence" in a manner that causes the death of a passenger. State v. Geary, 239 N.W. 158, 159-60 (Minn.1931). As such, the "use of force," as Leocal interpreted that phrase, is not an element of a second-degree manslaughter conviction."), 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 " SEXUAL BATTERY
United States v. Espinoza-Morales, 621 F.3d 1141 (9th Cir. Sept. 10, 2010) (California conviction of sexual battery, in violation of Penal Code 243.4(a), unlawful sexual touching of a restrained person, did not constitute a crime of violence for illegal re-entry sentencing purposes, since the offense may be committed through duress, and without use of force).

AGGRAVATED FELONY " CRIME OF VIOLENCE " PENETRATION WITH FOREIGN OBJECT
United States v. Espinoza-Morales, 621 F.3d 1141 (9th Cir. Sept. 10, 2010) (California conviction for penetration with a foreign object, in violation of California Penal Code 289(a)(1), does not categorically constitute a crime of violence for illegal re-entry sentencing purposes, since the offense may be committed through duress alone, and without use of force).

AGGRAVATED FELONY - CRIME OF VIOLENCE
United States v. Jennen, ___ F.3d ___, 2010 WL 625041 (9th Cir. Feb. 24, 2010) (Washington conviction of second degree assault with a deadly weapon, in violation of Wash. Rev.Code 9A.36.021(1), was categorically a crime of violence under USSG 4B1.2(a) ("any offense under federal or state law, punishable by imprisonment for a term exceeding one year" that "has as an element the use, attempted use, or threatened use of physical force against the person of another." because each of the three ways the Washington offense could be committed meets the Guidelines definition).

AGGRAVATED FELONY - CRIME OF VIOLENCE - CORPORAL INJURY OF A SPOUSE
United States v. Laurico-Yeno, ___ F.3d ___, 2010 WL 6393 (9th Cir. Jan. 4, 2010) (California conviction of corporal injury on a spouse, in violation of Penal Code 273.5(a), constituted a "crime of violence" for illegal re-entry sentencing purposes, because the intentional use of physical force against the person of another is an element of the statute, and the defendant failed to show there was a realistic probability that the statute would be applied to conduct outside the "crime of violence" definition).

NOTE: The petitioner pointed to published California cases that indicated that prosecution under Penal Code 273.5 included simple assaults resulting in a traumatic condition. People v. Gutierrez, 171 Cal.App.3d 944, 217 Cal.Rptr. 616, 620-21 (1985). Although the court cited Leocal for the proposition that the force must be violent, the ultimate decision seemed to rest on the failure of the petitioner to meet the Duenas "realistic probability" test. Counsel may be able to challenge this decision, either by locating a decision that shows application of Penal Code 273.5 in a simple battery context. Counsel may also be able to argue this decision should be reconsidered in light of Johnson v. United States, __ U.S. __ (Mar. 2, 2010) (the use of force must be "violent" in order to constitute a "crime of violence" for purpose of the Armed Career Criminal Act).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT WITH A DEADLY WEAPON
United States v. Estrada-Eliverio, 583 F.3d 669 (9th Cir. Oct. 5, 2009) (California conviction of assault with a deadly weapon or by means likely to produce great bodily injury, under Penal Code 245(a)(1), constituted a "crime of violence" for illegal re-entry sentencing purposes), following United States v. Grajeda, 581 F.3d 1186 (9th Cir. Sept. 21, 2009).

AGGRAVATED FELONY - CRIME OF VIOLENCE
United States v. Juvenile Female. 566 F.3d 943 (9th Cir. May 27, 2009) (federal felony conviction of assault on a federal officer [with a deadly weapon, or resulting in bodily injury], in violation of 18 U.S.C. 111, is a "crime of violence" as defined by 18 U.S.C. 16(a), for purposes of the Juvenile Delinquency Act).

AGGRAVATED FELONY - CRIME OF VIOLENCE - AIDING AND ABETTING ASSAULT WITH A DEADLY WEAPON
Ortiz-Magana v. Mukasey, 542 F.3d 653 (9th Cir. Sept. 09, 2008) (California conviction of aiding and abetting assault with a deadly weapon, under Penal Code 245(a)(1), constitutes a crime of violence aggravated felony for removal purposes).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT
Suazo Perez v. Mukasey, 512 F.3d 1222 (9th Cir. Jan. 22, 2008) (Washington conviction for fourth degree assault, in violation of RCW 9A.36.041 is not categorically an aggravated felony crime of violence, since it may be committed by any offensive touching).

AGGRAVATED FELONY - CRIME OF VIOLENCE - INTERFERENCE WITH LAW ENFORCEMENT
Estrada-Rodriguez v. Mukasey, __ F.3d __, 2007 WL 4554053 (9th Cir. Dec. 28, 2007) (Arizona conviction for resisting arrest, in violation of Arizona Revised Statutes 13-2508 categorically constitutes an aggravated felony crime of violence for immigration purposes, since the first subsection of that statute requires the element of use of force, and the second subsection requires a substantial risk that force will be used in the commission of the offense, mirroring 18 U.S.C. 16(a) and (b) respectively).

NOTE: The Court here looked to Arizona state law to determine that neither nonviolent refusal to submit, nor flight from an officer were offenses included under the Arizona statute.

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT
United States v. Carson, 486 F.3d 618 (9th Cir. May 15, 2007) (Washington conviction of second-degree assault, in violation of RCW 9A.36.021(1)(f) [ "[k]nowing[ ] inflict[ion of] bodily harm which by design causes such pain or agony as to be the equivalent of that produced by torture."] is a "crime of violence" for purposes of the Sentencing Guidelines career offender enhancement provision, U.S.S.G. 4B1.1).

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 USC 16(a) - STALKING NOT COV SINCE NO ELEMENT OF FORCE SINCE THREAT TO SAFETY WAS NOT LIMITED TO PHYSICAL SAFETY
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(a), because the threat to safety is not limited to physical safety, and the offense therefore did not have the required element of the use of force), following United States v. Jones, 231 F.3d 508 (9th Cir. 2000).

AGGRAVATED FELONY - CRIME OF VIOLENCE - FALSE IMPRISONMENT
United States v. Gonzalez-Perez, 472 F.3d 1158 (9th Cir. Jan. 10, 2007) (Florida conviction of false imprisonment under Florida law, did not constitute a crime of violence under U.S.S.G. 2L1.2(b)(1)(A)(ii), to warrant imposition of a 16-level sentence enhancement for illegal re-entry following deportation, because offense may be committed "secretly" without use of force). http://caselaw.lp.findlaw.com/data2/circs/9th/0510693p.pdf

Lower Courts of Ninth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - KIDNAP NOT CRIME OF VIOLENCE SINCE MAY BE COMMITTED BY DECEIT, NOT FORCE
People v. Dalerio, 144 Cal.App.4th 775 (Nov. 7, 2006) (California Penal Code 207(e), kidnapping, deceit plus constant physical presence was sufficient to find that defendant had used "force" to kidnap victim, since victim was a minor and was therefore unable to give consent to being taken.).

Tenth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - FALSE IMPRISONMENT
United States v. Ruiz-Rodriguez, 494 F.3d 1273 (10th Cir. Aug. 1, 2007) (Nebraska conviction of first-degree false imprisonment, under Neb.Rev.St. 28-312(1), 28-314(1), was not categorically a crime of violence for purposes of imposing a 16-level sentence enhancement under U.S.S.G. 2L1.2(b)(1)(A)(ii) for unlawful reentry since a defendant could be convicted restricting a person's movement by deception (instead of force or threat) under terrorizing circumstances, which did not necessarily encompass an element of force).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT
United States v. Hernandez-Garduno, __ F.3d __ (10th Cir. Aug. 21, 2006) (Colorado assault conviction, in violation of Colo. Rev. Stat. 18-3-204, is not categorically a crime of violence for illegal re-entry sentencing purposes). http://laws.lp.findlaw.com/10th/042224.html

Eleventh Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " EXTORTIONATE CREDIT
Accardo v. U.S. Atty. Gen., 634 F.3d 1333 (11TH Cir. Mar. 10, 2011) (federal conviction for violation of 18 U.S.C. 892(a), extortionate extension of credit, is not categorically an aggravated felony crime of violence for immigration purposes, since the statute includes harm to a persons reputation).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT
Hernandez v. U.S. Atty Gen., __ F.3d __, 2008 WL 160265 (11th Cir. Jan. 18, 2008) (Georgia conviction for simple battery, in violation of Ga. Code Ann. 16-5-23(a)(2), requiring a touching that goes beyond insult to the infliction of pain or physical injury, is an aggravated felony crime of violence for immigration purposes.) NOTE: the court suggests, in dicta, that even a simple touching would be enough to constitute a aggravated felony crime of violence.

AGGRAVATED FELONY - CRIME OF VIOLENCE - BATTERY - PREGNANT WOMAN
United States v. Llanos-Agostadero, 486 F.3d 1194 (11th Cir. May 15, 2007) (per curiam) (Florida conviction of aggravated battery on a pregnant woman, in violation of Fla. Stat. 784.045(1)(b) ["[a]ctually and intentionally touches or strikes another person" against the latter's will, or "[i]ntentionally causes bodily harm to another person." Small v. State, 889 So.2d 862, 863 (Fla.Dist.Ct.App.2004) (construing Fla. Stat. 784.03(1)(a), 784.045(1)(b))], constitutes a "crime of violence" under USSG 2L1.2(b)(1)(A)(ii); rejecting the argument that the use of physical force was not a necessary element of the state offense), following United States v. Griffith, 455 F.3d 1339, 1340-1345 (11th Cir. 2006); United States v. Glover, 431 F.3d 744, 747, 749 (11th Cir. 2005).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT - SIMPLE BATTERY CONSTITUTES A CRIME OF DOMESTIC VIOLENCE UNDER FEDERAL CRIMINAL FIREARMS STATUTE
United States v. Griffith, 455 F.3d 1339, 1340-1345 (11th Cir. 2006) (Georgia conviction of simple battery, under Ga.Code Ann. 16-5-23(a)(1) (which occurs when a person "[i]ntentionally makes physical contact of an insulting or provoking nature with the person of another"), constitutes a "crime of domestic violence" under 18 U.S.C. 921(a)(33)(A)(ii), 922(g)(9), which defines a "crime of domestic violence" to include, inter alia, any offense that "has, as an element, the use or attempted use of physical force.").

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT - SIMPLE BATTERY ON POLICE OFFICER CONSTITUTES CRIME OF VIOLENCE UNDER GUIDELINES
United States v. Glover, 431 F.3d 744, 747, 749 (11th Cir. 2005) (Florida conviction of simple battery on a law enforcement officer, in violation of Fla. Stat. 784.03 and 784.07, is a crime of violence under U.S.S.G. 4B1.2(a)(1) [inter alia, any offense that "has as an element the use, attempted use, or threatened use of physical force against the person of another."]).

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).