Aggravated Felonies

(D)  Sentencing Context.  The definitions of “crime of violence” and “sexual abuse of a minor” are not necessarily the same in the sentencing context as in the immigration context.  While immigration cases always apply the definition of “crime of violence” in 18 U.S.C. § 16(b), sentencing cases may involve one of three different definitions.  See § 4.40, supra.

In United States v. Searcy,[672] for example, the Eleventh Circuit found that a violation of 18 U.S.C. § 2442(b), committed by soliciting sex with a minor over the internet, was a crime of violence for sentencing purposes under the Armed Career Criminal Act.  The “crime of violence” definition applied in that context is met where there is a “serious potential risk of physical injury to another.”[673]  Rejecting the argument that there is no risk of injury in the act of soliciting a child over the internet (only in what might happen afterward), the court found that “the use of an Internet facility to entice a minor to engage in sexual activity presents the possibility of an encounter that could result in a serious risk of physical injury to the minor.”[674]  If the court had been required to find a serious risk of force in commission of the offense,[675] as required under 18 U.S.C. § 16(b), the outcome arguably would have been different.

In a related context, the Ninth Circuit found in United States v. Lopez-Montanez[676] that a California conviction for sexual battery[677] was not a crime of violence for illegal re-entry sentencing purposes, because the “crime of violence” definition applied in that context requires that the offense either have force as an element, or that the offense falls within an exclusive list of offenses, including “forcible sex offenses (including sexual abuse of a minor),”[678] and the offense in question did not have as an element the use of force, or otherwise require force.  The court drew a distinction between that and another case,[679] decided only four days earlier, finding that a conviction under the same statute was a crime of violence for aggravated felony purposes because 18 U.S.C. § 16 additionally includes offenses involving a substantial risk of force.

[672] United States v. Searcy, 418 F.3d 1193 (11th Cir. July 28, 2005).

[673] U.S.S.G. § 4B1.2.

[674] United States v. Searcy, 418 F.3d at 1197 (11th Cir. July 28, 2005).

[675] See § 5.23, supra.

[676] United States v. Lopez-Montanez, 421 F.3d 926 (9th Cir. Aug. 26, 2005).

[677] California Penal Code § 243.4(a).

[678] U.S.S.G. § 2L1.2, cmt. N. 1(B)(ii) (2002).

[679] Lisbey v. Gonzalez, 420 F.3d 930 (9th Cir. Aug. 22, 2005).