Aggravated Felonies

(A)  Negligence and Strict Liability.   In line with some earlier lower court decisions,[147] the United States Supreme Court unanimously found in Leocal v. Ashcroft,[148] that a Florida conviction for driving under the influence causing serious bodily injury[149] did not constitute an aggravated felony as a crime of violence, for purposes of triggering deportation, since the offense did not have a mens rea requirement in excess of strict liability or negligence, sufficient to meet the statutory requirement of use of force in the commission of the offense under either 18 U.S.C. § 16(a) or (b).  The court employed common-sense interpretation of the words of the statute:

The critical aspect of § 16(a) is that a crime of violence is one involving the “use . . . of physical force against the person or property of another.” (Emphasis added.) As we said in a similar context in Bailey, “use” requires active employment.  While one may, in theory, actively employ something in an accidental manner, it is much less natural to say that a person actively employs physical force against another person by accident. Thus, a person would “use . . . physical force against” another when pushing him; however, we would not ordinarily say a person “use[s] . . . physical force against” another by stumbling and falling into him. When interpreting a statute, we must give words their “ordinary or natural” meaning.  The key phrase in § 16(a)--the “use . . . of physical force against the person or property of another”--most naturally suggests a higher degree of intent than negligent or merely accidental conduct.  Petitioner’s DUI offense therefore is not a crime of violence under § 16(a).[150] 

The rationale of this decision — that an offense must involve a mens rea greater than strict liability or negligence to qualify as an aggravated felony crime of violence — applies to any criminal offense.  The courts of appeal are applying this reasoning to hold that other offenses that allow conviction for merely negligent conduct cannot be considered crimes of violence under the aggravated felony definition.[151]

[147] See, e.g., United States v. Contreras-Salas, 387 F.3d 1095 (9th Cir. Nov. 3, 2004) (Nevada conviction of child abuse under Nev. Rev. Statutes § 200.508, does not qualify as a crime of violence for purposes of enhancement of sentence for unlawful re-entry after deportation, since statute may be violated by negligence alone, and the record of conviction was unclear as to the level of intent of which the defendant was convicted); United States v. Pimental-Flores, 339 F.3d 959 (9th Cir. Aug. 11, 2003) (Washington conviction of third-degree assault in violation of court order, under Rev. Code of Washington § 26.50.110(4) may fail to trigger a 16-level illegal re-entry sentence enhancement, as a crime of violence under U.S.S.G. § 2L1.2 (2001), because the statute proscribes merely negligent assault).

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

[149] Florida Stats. Ann. § 316.193(3)(c).

[150] Leocal v. Ashcroft, 543 U.S. 1 at 9, 125 S.Ct. 377 at 382 (Nov. 9, 2004).

[151] Lara-Cazares v. Gonzales, 408 F.3d 1217 (9th Cir. May 23, 2005) (California conviction of gross vehicular manslaughter while intoxicated, in violation of Penal Code § 191.5(a), which can be committed by gross negligence, does not qualify as a crime of violence within the meaning of 18 U.S.C. § 16); Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. Jan. 12, 2005) (California conviction of evading an officer, in violation of Vehicle Code § 2800.2(a), was not a crime of violence, because the statute and charge were both overbroad with respect to the definition of a crime of violence by encompassing merely negligent conduct).