Aggravated Felonies

Section 16(b) of Title 18 requires that the elements of the offense of conviction establish a “substantial risk” that the defendant will intentionally use physical force against the person or property of another.  Courts have often taken great liberties with this requirement, failing to insist upon proof that this factor is in fact present.

The courts often find a “substantial risk” to exist based merely upon speculation about what might happen during the course of the offense.  The United States Supreme Court,[177] for example, has 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.[178]  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 percent.  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.

Another example is statutory rape, where the courts often illogically conclude that any offense where the victim is not legally able to consent must necessarily involve a substantial risk that force will be used in the commission of the offense.  See § 5.33, infra.

[177] Id. at 383.

[178] “In the act of committing a misdeed.”