BIA

AGGRAVATED FELONY " CRIME OF VIOLENCE " DISCHARGE OF A FIREARM
Matter of Chairez, 26 I&N Dec. 349 (BIA 2014) (Utah conviction for violation of 76-10-508.1(1)(a), discharge of a firearm, is not categorically an aggravated felony crime of violence, since the offense may be committed recklessly).

AGGRAVATED FELONY " CRIME OF VIOLENCE " DISCHARGE OF A FIREARM
Matter of Chairez, 26 I&N Dec. 349 (BIA 2014) (Utah conviction for violation of 76-10-508.1(1)(b) and (c), discharge of a firearm in the direction of a building, person, or vehicle, is categorically an aggravated felony crime of violence).

AGGRAVATED FELONY " FIREARMS OFFENSES " UNLAWFUL POSSESSION OF AMMUNITION BY CONVICTED FELON " RELATING TO
Matter of Oppedisano, 26 I. & N. Dec. 202 (BIA 2013) (federal conviction of unlawful possession of ammunition by a convicted felon, in violation of 18 U.S.C. 922(g), is an aggravated felony for immigration purposes; the relating to language used in the Act is does not limit the scope of the statute). http://www.justice.gov/eoir/vll/intdec/vol26/3793.pdf

AGGRAVATED FELONY " EXPLOSIVES OFFENSES " ARSON
Matter of Bautista, 25 I&N Dec. 616 (BIA 2011) (New York conviction of attempted arson in the third degree, in violation of New York Penal Law 110, 150.10, is an aggravated felony under INA 101(a)(43)(E)(i), 8 U.S.C. 1101(a)(43)(E)(i), relating to explosives material offenses, even though the state crime lacks the jurisdictional element in the applicable federal arson offense); following Matter of Vasquez-Muniz, 23 I&N Dec. 207 (BIA 2002).

AGGRAVATED FELONY " EXPLOSIVES OFFENSE
Matter of Bautista, 25 I&N Dec. 616, 620 (BIA 2011) (New York conviction of attempted arson, in violation of New York Penal Code 110 and 150.10, categorically constituted an aggravated felony under INA 101(a)(43)(E)(i), 8 U.S.C. 1101(a)(43)(E)(i); state conviction need not contain federal jurisdictional element to be an aggravated felony); following Matter of Vasquez-Muniz, 23 I&N Dec. 207, 212 (BIA 2002) (it must render irrelevant any purely jurisdictional element appearing in the crimes enumerated.).

POSSESSION OF FIREARM BY FELON - FIREARMS OFFENSE
Matter of Vasquez-Muniz, 23 I. & N. Dec. 207 (BIA Jan. 15, 2002) (California conviction of possession of a firearm by a felon in violation of California Penal Code § 12021(a)(l) is an aggravated felony under INA § 101(a)(43)(E)(ii), 8 U.S.C. 1101(a)(43)(E)(ii) because it is "described in" 18 U.S.C. § 922(g)(l), even though the state statute lacks the jurisdictional element required by the federal statute).

USE OF FIREARM DURING DRUG TRAFFICKING CRIME - DRUG TRAFFICKING
Matter of KL, 20 I. & N. Dec. 654 (BIA June 3, 1993) (federal conviction under 18 U.S.C. § 924(c)(1), for use of a firearm during a drug trafficking crime, is deportable under former 8 U.S.C. § 1251(a)(2)(A)(iii), as a drug-trafficking aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B)) (alternative holding).

AGGRAVATED BATTERY - CRIME OF VIOLENCE
Matter of B, 20 I. & N. Dec. 427 (BIA Nov. 19, 1991) (conviction of aggravated battery by injuring a person with a shot from a firearm constitutes a crime of violence and is therefore an aggravated felony since a sentence of five years was imposed).

Second Circuit

AGGRAVATED FELONIES " FIREARMS OFFENSES " POSSESSION OF AMMUNITION
Oppedisano v. Holder, 769 F.3d 147 (2d Cir. Oct. 8, 2014) (federal conviction for the unlawful possession of ammunition, under 18 U.S.C. 922(g)(1), qualifies as an aggravated felony under INA 101(a)(43)(E)(ii), 8 U.S.C. 1101(a)(43)(E)(ii)).

AGGRAVATED FELONY " CRIME OF VIOLENCE " POSSESSION OF A FIREARM
United States v. Folkes, 622 F.3d 152 (2d Cir. Sept. 29, 2010) (per curiam) (New York conviction of third-degree criminal possession of a loaded firearm, in violation of N.Y. Penal Law 265.02(4), did not categorically constitute crime of violence for illegal re-entry sentencing purposes, since the crime of violence definition requires some affirmative conduct beyond mere possession of a gun); following United States v. Gamez, 577 F.3d 394, 398 (2d Cir. 2009).

AGGRAVATED FELONY " CRIME OF VIOLENCE " POSSESSION OF A WEAPON
Brooks v. Holder, 621 F.3d 88 (2d Cir. Sept. 17, 2010) (New York conviction of second degree possession of a weapon, in violation of N.Y. Penal Law 265.03(1)(b), punishing possession of a loaded firearm with intent to use against another, is an aggravated felony crime of violence for removal purposes, under INA 101 (a)(43)(F), 8 U.S.C 1101 (a)(43)(F), since offense involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.); accord, Henry v. Bureau of Immigration & Customs Enforcement, 493 F.3d 303 (3d Cir. 2007).

AGGRAVATED FELONY - CRIME OF VIOLENCE - POSSESSION OF A WEAPON
United States v. Gamez, 577 F.3d 394 (2d Cir. Aug. 20, 2009) (New York conviction for violation of Penal Law 265.03, second degree possession of a weapon, is not a crime of violence for illegal re-entry sentencing purposes).

SEXUAL CONTACT WITH CHILD UNDER 16 - CRIME OF VIOLENCE
Dos Santos v. Gonzalez, __ F.3d __, 2006 WL 521583 (2d Cir. Mar. 3, 2006) (Connecticut conviction of violating Connecticut General Statute, § 53-21(a)(2) [punishing "contact with the intimate parts, as defined by section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child."], is an aggravated felony crime of violence for immigration purposes as defined by 18 U.S.C. § 16(b)).

CONSPIRACY TO EXPORT WITHOUT LICENSE - FIREARMS TRAFFICKING
Kuhali v. Reno, 266 F.3d 93 (2d Cir. Sept. 27, 2001) (federal conviction for conspiracy to export firearms without license, in violation of 18 U.S.C. § 371 and 22 U.S.C. 2778, constitutes an aggravated felony under INA § 101(a)(43)(C), (U), 8 U.S.C. 1101(a)(43)(C), (U), for immigration purposes, since it necessarily exhibits a business or merchant nature, regardless of any nexus with commerce as an element of the offense or of a similar "match" between elements).

Third Circuit

AGGRAVATED FELONY " FIREARMS AND DESTRUCTIVE DEVICES " ARSON " FEDERAL JURISDICTIONAL ELEMENT
Bautista v. Atty Gen. of the U.S., 744 F.3d 54 (3d Cir. Feb. 28, 2014) (New York conviction of attempted arson in the third degree, in violation of Penal Law 110 and 150.10, did not categorically constitute a match for the elements of 18 U.S.C. 844(i), and is therefore not an aggravated felony under INA 101(a)(43)(E)(i), 8 U.S.C. 1101(a)(43)(E)(i), because the New York arson statute does not require the federal jurisdictional element that the object of the arson be used in interstate commerce, which the Supreme Court has found to be a critical and substantive element of that arson offense). The court reasoned as follows: We must assume that Congress was aware of the limits imposed by the Commerce Clause on the reach of the statutes it passes and that it restricted the breadth of 101(a)(43)(E) with the substantive constraints of the included jurisdictional elements in mind. See United States v. Am. Bldg. Maint. Indus., 422 U.S. 271, 279"80, 95 S.Ct. 2150, 45 L.Ed.2d 177 (1975) (comparing Congress's use of in commerce versus affected commerce to show that Congress is aware of its Commerce Clause power and the extent to which it asserts that power in drafting statutes). We cannot undermine the categorical approach and Congress's deliberate choice to include 844(i), rather than generic arson, in 101(a)(43)(E)(i). Further, were we to ignore the jurisdictional element in our categorical approach to 844(i), as the BIA has here, we would be characterizing a state conviction for arson of the intrastate house in Jones as an aggravated felony described in 844(i), when the Supreme Court clearly excised the arson of such intrastate objects from the scope of that federal statute. Id. at 64-66.

AGGRAVATED FELONY " FIREARMS AND DESTRUCTIVE DEVICES " ARSON " FEDERAL JURISDICTIONAL ELEMENT
Bautista v. Atty Gen. of the U.S., 744 F.3d 54 (3d Cir. Feb. 28, 2014) (New York conviction of attempted arson in the third degree, in violation of Penal Law 110 and 150.10, did not categorically constitute a match for the elements of 18 U.S.C. 844(i), and is therefore not an aggravated felony under INA 101(a)(43)(E)(i), 8 U.S.C. 1101(a)(43)(E)(i), because the New York arson statute does not require the federal jurisdictional element that the object of the arson be used in interstate commerce, which the Supreme Court has found to be a critical and substantive element of that arson offense). The court reasoned as follows: We must assume that Congress was aware of the limits imposed by the Commerce Clause on the reach of the statutes it passes and that it restricted the breadth of 101(a)(43)(E) with the substantive constraints of the included jurisdictional elements in mind. See United States v. Am. Bldg. Maint. Indus., 422 U.S. 271, 279"80, 95 S.Ct. 2150, 45 L.Ed.2d 177 (1975) (comparing Congress's use of in commerce versus affected commerce to show that Congress is aware of its Commerce Clause power and the extent to which it asserts that power in drafting statutes). We cannot undermine the categorical approach and Congress's deliberate choice to include 844(i), rather than generic arson, in 101(a)(43)(E)(i). Further, were we to ignore the jurisdictional element in our categorical approach to 844(i), as the BIA has here, we would be characterizing a state conviction for arson of the intrastate house in Jones as an aggravated felony described in 844(i), when the Supreme Court clearly excised the arson of such intrastate objects from the scope of that federal statute. Id. at 64-66.

AGGRAVATED FELONY - CRIME OF VIOLENCE - FIREARMS POSSESSION
Henry v. BICE, 493 F.3d 303 (3d Cir. Jul. 11, 2007) (New York conviction for possession of a loaded firearm with intent to use it unlawfully against another person, under New York Penal Law 265.03, constitutes a crime of violence under 18 U.S.C. 16(b) and is therefore an aggravated felony for immigration purposes).

FIREARMS TRAFFICKING
Joseph v. Attorney General of U.S., ___ F.3d ___, 2006 WL 2796256 (3d Cir. Oct. 2, 2006) (federal conviction of importing a firearm into a state, in violation of 18 U.S.C. § 922(a)(3), does not constitute an "aggravated felony" of "illicit trafficking in firearms" under INA §§ 101(a)(43)(C) and 237(a)(2)(A)(iii), 8 U.S.C. §§ 1101(a)(43)(C), 1227(a)(2)(A)(iii), because § 922(a)(3) does not include a "trafficking element").

AGGRAVATED FELONY - FIREARMS TRAFFICKING - TRANSPORTATION ACROSS STATE LINES
Joseph v. United States Atty Gen., 465 F.3d 123 (3d Cir. Oct. 2, 2006) (federal conviction of 18 U.S.C. 922(a)(3) and 924(a)(1)(D) [transporting firearm across state lines] is not an aggravated felony firearms trafficking offense under INA 101(a)(43)(C) for immigration purposes because the statute does not at a minimum require "trafficking" in firearms; the offense may be committed by bringing ones own firearm across state lines).

AGGRAVATED FELONY - FIREARMS TRAFFICKING - TRANSPORTATION ACROSS STATE LINES
Joseph v. United States Atty Gen., 465 F.3d 123 (3d Cir. Oct. 2, 2006) (federal conviction of 18 U.S.C. 922(a)(3) and 924(a)(1)(D) [transporting firearm across state lines] is not an aggravated felony firearms trafficking offense under INA 101(a)(43)(C) for immigration purposes because the statute does not at a minimum require "trafficking" in firearms; the offense may be committed by bringing ones own firearm across state lines).

Fifth Circuit

AGGRAVATED FELONY " FIREARMS " FRAUDLENT PURCHASE OF FIREARMS FOR EXPORT
Franco-Casasola v. Holder, __ F.3d __ (5th Cir. Oct. 23, 2014) (federal conviction for violation of 18 U.S.C. 554(a), fraudulent purchase of firearms for export, is a divisible statute, as a target offense where the indictment must specify, and the prosecutor must prove, the underlying offense; record established aggravated felony firearms trafficking offense since the indictment specified a firearms trafficking offense).

AGGRAVATED FELONY " CRIME OF VIOLENCE " POSSESSION OF WEAPON
United States v. Marquez, 626 F.3d 214 (5th Cir. Nov. 10, 2010) (New Mexico violation of NMSA 30-22-16, possession of a deadly weapon by a prisoner, is a crime of violence for purposes of the armed career criminal act, since the offense involves a serious potential risk of injury to another).

AGGRAVATED FELONY " CRIME OF VIOLENCE " POSSESSION OF PIPE BOMB
United States v. Schmidt, 623 F.3d 257 (5th Cir. Oct. 7, 2010) (federal violation of 18 U.S.C. 922(u), possession of a pipe bomb, is a violent felony for purposes of the Armed Career Criminal Act).

AGGRAVATED FELONY " CRIME OF VIOLENCE " POSSESSION OF SAWED OFF SHOTGUN
United States v. Lipscomb, 619 F.3d 474 (5th Cir. Sept. 13, 2010) (federal conviction for possession of a sawed-off shotgun, in violation of 18 USC 922(g) is a crime of violence for purposes of Armed Career Offender Act sentencing, since possession of a sawed-off shotgun creates a serious potential risk of physical injury).

AGGRAVATED FELONY - FIREARMS - INTERSTATE COMMERCE ELEMENT
Hernandez v. Holder, __ F.3d __ (5th Cir. Dec. 30, 2009) (Texas conviction for violation of Texas Penal Code section 46.04(a), possession of a firearm by a felon, is an aggravated felony firearms offense; it is not necessary for a state offense to contain a federal jurisdictional element to be an offense "described in" 18 U.S.C. section 922(g)(1), and qualify as an aggravated felony under INA 101(a)(43)(E)), following Matter of Vasquez-Muniz, 23 I. & N. Dec. 207 (BIA 2002).

AGGRAVATED FELONY - CRIME OF VIOLENCE - FIREARMS - POSSESSION OF DEADLY WEAPON IN PENAL INSTITUTION
United States v. Rodriguez-Jaimes, __ F.3d __ (5th Cir. March 09, 2007) (Texas conviction for possession of a deadly weapon in a penal institution, in violation of Texas Penal Code 46.10(a)(2) is a crime of violence for Armed Career Criminal Act sentencing purposes, since it involves a serious potential risk of physical injury). http://caselaw.lp.findlaw.com/data2/circs/5th/0640281cr0p.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - TEXAS DEADLY CONDUCT
United States v. Hernandez-Rodriguez, ___ F.3d ___ (5th Cir. Oct. 10, 2006) (Texas conviction of "deadly conduct," as defined in Tex. Penal Code 22.05(b)(1) [knowingly discharge a firearm in the direction of a person] constitutes a crime of violence for purposes of imposing a 16-level sentence enhancement under U.S.S.G. 2L1.2(b), because the offense has an element the threatened use of physical force).
http://caselaw.lp.findlaw.com/data2/circs/5th/0551429cr0p.pdf

SHOOTING INTO OCCUPIED DWELLING - CRIME OF VIOLENCE
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).

DRIVE-BY SHOOTING - FACILITATION - CRIME OF VIOLENCE
Nguyen v. Ashcroft, 366 F.3d 386 (5th Cir. Apr. 26, 2004) (Oklahoma conviction for facilitation of a drive-by shooting, under 21 Okl.St.Ann. § 652, subd. B., constituted a crime of violence aggravated felony for deportation purposes).

POSSESSION OF SAWED-OFF SHOTGUN - CRIME OF VIOLENCE
United States v. Diaz-Diaz, 327 F.3d 410 (5th Cir. Apr. 3, 2003) (Texas conviction for possession of a prohibited weapon - a short-barrel firearm - in violation of Tex. Penal Code § 46.05, did not constitute a crime of violence aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of a 16-level sentence enhancement for illegal re-entry pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(iii) (2000), since there is no element or substantial risk that force will be used in the commission of the offense).

POSSESSION OF UNREGISTERED FIREARM - FIREARM OFFENSE
United States v. Diaz-Diaz, 327 F.3d 410 (5th Cir. Apr. 3, 2003) (Texas conviction for possession of a prohibited weapon a short-barrel firearm in violation of Tex. Penal Code § 46.05, constituted a listed aggravated felony firearms offense under INA § 101(a)(43)(E)(iii), 8 U.S.C. § 1101(a)(43)(E)(iii), as an "offense described in . . . [26 U.S.C. § ] 5861 . . . (relating to firearms offenses)," for purposes of a 16-level sentence enhancement for illegal re-entry pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(iii), since there is no element or substantial risk that force will be used in the commission of the offense).

POSSESSION OF DEADLY WEAPON - CRIME OF VIOLENCE
United States v. Medina-Anicacio, 325 F.3d 638 (5th Cir. Mar. 24, 2003) (California conviction of possession of a deadly weapon a dirk or dagger in violation of Penal Code § 12020(a), does not constitute a "crime of violence" within the meaning of 18 U.S.C. § 16(b), because there is no substantial risk that an offender may use violence to perpetrate the weapon possession offense, and it therefore does not constitute an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F) for illegal re-entry sentence enhancement purposes under U.S.S.G. § 2L1.2).

UNLAWFULLY CARRYING FIREARM - CRIME OF VIOLENCE
United States v. Hernandez-Neave, 291 F.3d 296 (5th Cir. Dec. 21, 2001) (Texas conviction for unlawfully carrying firearm in place licensed to sell alcoholic beverages, in violation of Penal Code § 46.02(c), was not a crime of violence for illegal re-entry sentencing purposes).

POSSESSION OF SHORT-BARRELED SHOTGUN - CRIME OF VIOLENCE
United States v. Rivas-Palacios, 244 F.3d 396 (5th Cir. Mar. 9, 2001) (Texas conviction for unlawful possession of an unregistered short-barreled shotgun is an aggravated felony crime of violence for illegal re-entry sentencing purposes), following United States v. Dunn, 946 F.2d 615, 620-21 (9th Cir. 1991), cert. denied, 502 U.S. 950, 112 S.Ct. 401 (1991) (involving a sawed-off shotgun).

POSSESSION OF FIREARM BY ALIEN - FIREARMS OFFENSE
United States v. Reyna-Espinosa, 117 F.3d 826 (5th Cir. July 11, 1997) (federal conviction for unlawful possession of a firearm by an alien under 18 U.S.C. § 922(g)(5) does not constitute an "aggravated felony" for purposes of increasing the defendants offense level for illegal re-entry by 16 levels pursuant to U.S.S.G. § 2L1.2(b)(2), although it does for immigration purposes).

Seventh Circuit

AGGRAVATED FELONY " FIREARMS OFFENSES " POSSESSION OF A WEAPON
(Illinois conviction for being in possession of a weapon in violation of 720 ILCS 5/24"1.1(a) did not qualify as an aggravated felony, because Illinoiss definition of a firearm is broader than its federal counterpart because it includes pneumatic weapons). NOTE: Compressed air is not an explosive, which means that pneumatic weapons are not firearms under federal law. See, e.g., United States v. Castillo-Rivera, 853 F.3d 218, 225 (5th Cir. 2017) (en banc); United States v. Crooker, 608 F.3d 94, 96 (1st Cir. 2010). Rodriguez-Contreras v. Sessions, 873 F.3d 579, 580 (Cir. 2017).

AGGRAVATED FELONY " CRIMES OF VIOLENCE " COMMITTING FELONY WHILE ARMED
Brown v. Rios, 696 F.3d 638, *644 (No. 11-1695) (7th Cir. Aug. 20, 2012) (armed violence, defined as "committing any felony defined by Illinois Law while armed," did not qualify as a Violent Felony when the underlying felony consisted of simple possession of drugs; while there is evidence of a connection between Congresss attempt to keep firearms away from habitual drug users and its goal of reducing violent crime, United States v. Yancey, 621 F.3d 681, 686 (7th Cir. 2010), it has not been shown that the mere possession of a gun by a drug user . . . can be described as purposeful, violent, or aggressive conduct within the meaning of Begay.).

POST CON RELIEF " GROUNDS " INSUFFICIENCY OF EVIDENCE
United States v. Griffin, ___ F.3d ___, ___ (7th Cir., Jul. 5, 2012) (reversing federal conviction for felon in possession of firearms where there was no evidence defendant intended to exercise any control over his father's firearms in his parents' home where he went to live after being released from prison: a defendant's strong connection to the residence alone does not suffice to establish the nexus required to prove his constructive possession of a gun found in the residence.").

AGGRAVATED FELONY - CRIME OF VIOLENCE - DISCHARGE OF FIREARM
Jimenez-Gonzalez v. Mukasey, 548 F.3d 557 (7th Cir. Nov. 21, 2008) (Indiana conviction for criminal recklessness, in violation of Indiana Code 35-42-2-2(c)(3) [shooting a firearm into an inhabited dwelling], is not an aggravated felony crime of violence since recklessness is insufficient to find conviction of a crime of violence).

AGGRAVATED FELONY - FIREARMS - POSSESSION BY FELON
Negrete-Rodriguez v. Mukasey, 518 F.3d 497 (7th Cir. Mar. 3, 2008) (Illinois conviction of unlawful possession of a weapon by a felon, in violation of 720 ILCS 5/24-1.1(a), constituted an aggravated felony under INA 101(a)(43)(E)(ii), 8 U.S.C. 1101(a)(43)(E)(ii) ("[t]he term aggravated felony means ... an offense described in ... section 922(g)(1) ... of Title 18 (relating to firearms offenses).", despite the fact that the Illinois offense lacks the interstate commerce element of the analogous federal offense), following United States v. Castillo-Rivera, 244 F.3d 1020 (9th Cir. 2001) (sentencing Guidelines context).

DISCHARGING A FIREARM - CRIME OF VIOLENCE
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" so as to warrant a 16-level increase in the offense level under U.S.S.G. § 2L1.2(b)(1)(A)(ii) for illegal re-entry, 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).

FIREARMS TRAFFICKING
United States v. Gonzalez, 112 F.3d 1325, 1327 n.1 (7th Cir. May 6, 1997), cert. denied, 522 U.S. 962 (1997) (federal conviction of illicit trafficking in firearms (as defined in 18 U.S.C. § 921), in violation of 18 U.S.C. 922(a)(1), 18 U.S.C. § 1202(a)(1), and 26 U.S.C. 5861(d) and (e), constituted an "aggravated felony" under INA § 101(a)(43)(C), 8 U.S.C. § 1101(a)(43)(C), for purposes of enhancing sentence for illegal re-entry).

Eighth Circuit

AGGRAVATED FELONY - FIREARMS OFFENSE - CLAIM OF SPORTING USE EXCEPTION REJECTED
Alvarado v. Gonzales, 484 F.3d 535 (8th Cir. April 17, 2007) (per curiam) (federal conviction of possession of firearms and ammunition by an unlawful user of a controlled substance, under 18 U.S.C. 922(g)(3), constituted aggravated felony firearms conviction, for purposes of removal and cancellation of removal, despite the alleged sporting purpose of the guns at issue).

GOING ARMED WITH INTENT - CRIME OF VIOLENCE
United States v. Gomez-Hernandez, 300 F.3d 974 (8th Cir. Aug. 28, 2002) (Iowa conviction of going armed with intent to use a weapon unlawfully, in violation of Iowa Code § 708.8, is a crime of violence and therefore an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), and justifies illegal re-entry sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)).

Ninth Circuit

AGGRAVATED FELONY " FIREARMS OFFENSES " ANTIQUE FIREARMS DEFENSE
United States v. Hernandez, 769 F.3d 1059 (9th Cir. Oct. 20, 2014) (per curiam) (California conviction for being a felon in possession of a firearm under California Penal Code 12021(a)(1), did not categorically qualify as a listed firearms aggravated felony, under INA 101(a)(43)(E), 8 U.S.C. 101(a)(43)(E), since the state did not have an exception for antique firearms, as federal law did, and the state in fact prosecuted defendants under this statute for being in possession of antique firearms, and the state statutory definition of firearm is not divisible, so resort to the modified categorical analysis or record of conviction is prohibited).

AGGRAVATED FELONIES " FIREARMS OFFENSES " ANTIQUE FIREARMS
United States v. Aguilera-Rios, ___ F.3d ___, 2014 WL 2723766 (9th Cir. Jun. 17, 2014) (California Penal Code 12021(c)(1), current Penal Code 29800, is not a categorical aggravated felony firearms offense, since the statute lacks an antique firearms exception); explicitly partially overruling Gil v. Holder, 651 F.3d 1000, 1005"06 (9th Cir. 2011), and implicitly partially overruling Matter of Mendez-Orellana, 25 I&N Dec. 254 (BIA 2010).

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 US.C. 16(b) " POSSESSION OF SHORT-BARRELED SHOTGUN
United States v. Reyes, ___ F.Supp.2d ___, ___, 2012 WL 5389697 (N.D.Cal., 2012) (conviction of possession of a short-barreled shotgun is not a crime of violence within the meaning of 18 U.S.C. 16(b), because [T]he risk of physical force central to the definition of a crime of violence under 16(b) is the risk of its use in the course of committing the offense"its use in completing the crime.); noting that United States v. Dunn, 946 F.2d 615, 620"21 (9th Cir.1991), has been effectively overruled by Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004); see Covarrubias"Teposte v. Holder, 632 F.3d 1049, 1053 (9th Cir. 2011) (embracing the reasoning of Leocal in defining a crime of violence under 18 U.S.C. 16(b), the court held that a California conviction for shooting at an inhabited dwelling or vehicle under California Penal Code 246 was not categorically a crime of violence: In order to be a predicate offense under either 16 approach, the underlying offense must require proof of an intentional use of force or a substantial risk that force will be intentionally used during its commission.), citing United States v. Gomez"Leon, 545 F.3d 777 (9th Cir. 2008) (emphasis added).

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 US.C. 16(b) " POSSESSION OF SHORT-BARRELED SHOTGUN
United States v. Reyes, 907 F.Supp.2d 1068 (N.D.Cal., 2012) (conviction of possession of a short-barreled shotgun is not a crime of violence within the meaning of 18 U.S.C. 16(b), because [T]he risk of physical force central to the definition of a crime of violence under 16(b) is the risk of its use in the course of committing the offense"its use in completing the crime.); noting that United States v. Dunn, 946 F.2d 615, 620"21 (9th Cir.1991), has been effectively overruled by Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004); see Covarrubias"Teposte v. Holder, 632 F.3d 1049, 1053 (9th Cir. 2011) (embracing the reasoning of Leocal in defining a crime of violence under 18 U.S.C. 16(b), the court held that a California conviction for shooting at an inhabited dwelling or vehicle under California Penal Code 246 was not categorically a crime of violence: In order to be a predicate offense under either 16 approach, the underlying offense must require proof of an intentional use of force or a substantial risk that force will be intentionally used during its commission.), citing United States v. Gomez"Leon, 545 F.3d 777 (9th Cir. 2008) (emphasis added).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT WITH A FIREARM
United States v. Heron-Salinas, 566 F.3d 898 (9th Cir. May 20, 2009) (per curiam) (California conviction of assault with a firearm, under Penal Code 245(a)(2), constituted a crime of violence as defined in 18 U.S.C. 16, for immigration purposes: "The use of a firearm in the commission of the crime is enough to demonstrate that actual force was attempted or threatened under section 16(a). Similarly, one who assaults another by means of a firearm necessarily disregards the substantial risk that in the course of committing the offense he might intentionally use actual physical force against the victim under section 16(b)."); following Ortiz-Magana v. Mukasey, 542 F.3d 653, 654 (9th Cir.2008) (California conviction of aiding and abetting assault with a deadly weapon in violation of Penal Code 245(a)(1) is categorically a crime of violence under 18 U.S.C. 16); Ocampo-Duran v. Ashcroft, 254 F.3d 1133, 1134-35 (9th Cir.2001) (California conviction of aiding and abetting assault with a deadly weapon in violation of Penal Code 245(a)(1), is an aggravated felon under 8 U.S.C. 1101(a)(43)(F)).

AGGRAVATED FELONY - FIREARMS - POSSESSION OF FIREARM
Anaya-Ortiz v. Mukasey, 553 F.3d 1266 (9th Cir. Jan. 27, 2009) (following United States v. Castillo-Rivera in the immigration context); see United States v. Castillo-Rivera, 244 F.3d 1020 (9th Cir. Mar. 26, 2001), cert. denied, 122 S.Ct. 294 (2001) (California conviction for violating California Penal Code 12021(a), felon in possession of a firearm, constitutes an aggravated felony under INA 101(a)(43)(E), 8 U.S.C. 1101(a)(43)(E), because it is "an offense described in" 18 U.S.C. 922(g)(1), the federal felon-in-possession statute, even though the state crime, unlike 922(g), does not include any interstate or foreign commerce federal jurisdictional element, and therefore supports sentence enhancement under U.S.S.G. 2L1.2(b)(1)(A) for illegal re-entry conviction of violating INA 176(a), 8 U.S.C. 1326(a)).

AGGRAVATED FELONY - FIREARMS OFFENSES - FELON IN POSSESSION OF FIREARM
Anaya-Ortiz v. Mukasey, 553 F.3d 1266 (9th Cir. Jan. 27, 2009) (following United States v. Castillo-Rivera in the immigration context); see United States v. Castillo-Rivera, 244 F.3d 1020 (9th Cir. Mar. 26, 2001), cert. denied, 122 S.Ct. 294 (2001) (California conviction for violating California Penal Code 12021(a), felon in possession of a firearm, constitutes an aggravated felony under INA 101(a)(43)(E), 8 U.S.C. 1101(a)(43)(E), and therefore supports sentence enhancement under U.S.S.G. 2L1.2(b)(1)(A) for illegal re-entry conviction of violating INA 176(a), 8 U.S.C. 1326(a), because it is "an offense described in" 18 U.S.C. 922(g)(1), the federal felon-in-possession statute, even though the state crime, unlike 18 U.S.C. 922(g), it does not include any interstate or foreign commerce federal jurisdictional element).

AGGRAVATED FELONY - CRIME OF VIOLENCE - FIREARMS POSSESSION
United States v. Crampton, 519 F.3d 893 (9th Cir. Mar. 10, 2008) (Oregon conviction for possession of a short-barreled shotgun, in violation of ORS 166.272(a), is a crime of violence for purposes of the Armed Career Criminal Act, because of the substantial risk of force).

AGGRAVATED FELONY - CRIME OF VIOLENCE - POSSESSION OF SAWED OFF SHOTGUN
United States v. Crampton, 510 F.3d 1108 (9th Cir. Dec. 20, 2007) (Oregon conviction for possession of a sawed off shotgun, in violation of Or. Rev. Stat. 166.272(1), is a crime of violence for purposes of the Armed Career Criminal Act).

AGGRAVATED FELONY - CRIME OF VIOLENCE - SHOOTING AT INHABITED DWELLING
United States v. Narvaez-Gomez, 489 F.3d 970 (9th Cir. Jun. 6, 2007) (California conviction of under Penal Code 246 (maliciously and willfully discharge firearm at inhabited building or vehicle) did not categorically constitute a crime of violence under U.S.S.G. 2L1.2, application note 1(B)(iii) ("crime of violence" is a "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."), since the elements of this offense allow conviction for reckless or grossly negligent conduct, rather than requiring intentional use of force), holding that Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132 (9th Cir.2006) (en banc) (limiting categorical crimes of violence to offenses committed through intentional use of force against the person of another rather than reckless or grossly negligent conduct), abrogates United States v. Lopez-Torres, 443 F.3d 1182 (9th Cir. April 25, 2006).

AGGRAVATED FELONY - CRIME OF VIOLENCE - INTENT REQUIREMENT - GENERAL INTENT - INCLUDES RECKLESSNESS WHICH IS INSUFFICIENT TO CONSTITUTE A CRIME OF VIOLENCE
United States v. Narvaez-Gomez, 489 F.3d 970 (9th Cir. Jun. 6, 2007) (California general intent offenses, such as willfully and maliciously discharging a firearm at an inhabited dwelling, under Penal Code 246, permit conviction for conduct showing a conscious indifference to the probable consequence that one or more projectiles will strike the target; the "conscious indifference" intent element is equivalent to recklessness.), citing Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132 (9th Cir.2006) (en banc) (limiting categorical crimes of violence to offenses committed through intentional use of force against the person of another rather than reckless or grossly negligent conduct)

AGGRAVATED FELONY - CRIME OF VIOLENCE - POSSESSION OF DANGEROUS WEAPON
United States v. Reina-Rodriguez, ___ F.3d ___ (9th Cir. Nov. 15, 2006) (Utah conviction of second-degree attempted aggravated burglary, under Utah Code Ann. 76-6-203, does not necessarily constitute a "crime of violence" illegal reentry sentencing purposes, because Utah conviction of attempted aggravated burglary may be committed by merely possessing a dangerous weapon while committing or attempting to commit a burglary, and such possession does not involve the use or threat of force), following United States v. Serna, 435 F.3d 1046, 1047 (9th Cir. 2006) (interpreting different "career criminal" guideline, USSG 4B1.2 [defining "crime of violence" differently, to include "conduct that presents a serious risk of physical injury to another . . . ." which is not in USSG 2L1.2(b)(1)(A)(ii)). http://caselaw.lp.findlaw.com/data2/circs/9th/0510475p.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - CATEGORICAL ANALYSIS -- DISCHARGING FIREARM AT DWELLING NOT CATEGORICALLY A CRIME OF VIOLENCE
United States v. Martinez-Martinez, ___ F.3d ___ (9th Cir. Nov. 14, 2006) (Arizona conviction of discharging firearm at a residence, in violation of A.R.S. 13-1211, did not categorically constitute a crime of violence for purposes imposing a 16-level sentence enhancement for illegal reentry, under USSG 2L1.2(b)(1)(A)(ii), because the statute of conviction encompassed any structure capable of being occupied as a residence, even though it was not presently so occupied), distinguishing United States v. Cortez-Arizs, 403 F.3d 1111 (9th Cir. 2005) (California conviction of discharging a firearm at an "inhabited dwelling house," one "currently being used for dwelling purposes, whether occupied or not," in violation of Penal Code 246, constituted a crime of violence for purposes imposing a 16-level sentence enhancement for illegal reentry, under USSG 2L1.2(b)(1)(A)(ii)). http://caselaw.lp.findlaw.com/data2/circs/9th/0610015p.pdf

SHOOTING AT AN OCCUPIED MOTOR VEHICLE - CRIME OF VIOLENCE
United States v. Lopez-Torres, ___ F.3d ___ (9th Cir. Apr. 25, 2006) (California conviction for shooting at an occupied motor vehicle under Penal Code § 246 is categorically a crime of violence for purposes of enhancement of illegal reentry sentence under USSG § 2L1.2).

POSSESSION OF ASSAULT WEAPON - CRIME OF VIOLENCE
United States v. Serna, 435 F.3d 1046 (9th Cir. Jan. 23, 2006) (California conviction for possession of assault weapon in violation of California Penal Code § 12280(b) was not "crime of violence" under the federal Sentencing Guidelines for purposes of illegal re-entry sentence enhancement).

POSSESSION OF SHORT-BARRELED SHOTGUN - CRIME OF VIOLENCE
United States v. Delaney, 427 F.3d 1224 (9th Cir. Nov. 7, 2005) (California conviction of possession of a short-barreled shotgun, in violation of California Penal Code § 12020(a)(1), is a crime of violence for sentencing purposes, since short-barreled shotguns are "inherently dangerous," their only use is violence, and thus their possession involves a substantial risk of the use of physical force).

SHOOTING AT INHABITED BUILDING - CRIME OF VIOLENCE
United States v. Cortez-Arias, 415 F.3d 977 (9th Cir. Apr. 18, 2005) (California conviction of shooting at inhabited dwelling, in violation of Penal Code § 246, was a conviction for a "crime of violence" for sentencing purposes following prosecution for illegal re-entry).

POSSESSION OF DESTRUCTIVE DEVICE - CRIME OF VIOLENCE
United States v. Fish, 368 F.3d 1200 (9th Cir. May 28, 2004) (Oregon conviction of possession of a destructive device, under Or. Rev. Stat. § 166.382, did not constitute "a crime of violence" under the U.S.S.G. to allow an increased offense level in determining sentencing).

FIREARMS - CRIME OF VIOLENCE
United States v. Sarbia, 367 F.3d 1079 (9th Cir. May 14, 2004) (Nevada conviction of attempt to discharge a firearm at an occupied structure constitutes a crime of violence under U.S.S.G. § 4B1.2).

FIREARM USE - EVADING AN OFFICER - CRIME OF VIOLENCE
Reyes-Alcaraz v. Ashcroft, 363 F.3d 937 (9th Cir. Apr. 8, 2004) (California conviction of exhibiting a deadly weapon with intent to resist arrest, in violation of California Penal Code § 417.8, is a crime of violence and thus an "aggravated felony" under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for immigration purposes).

ASSAULT WITH DEADLY WEAPON - CRIME OF VIOLENCE
Ocampo-Duran v. Ashcroft, 254 F.3d 1133 (9th Cir. June 28, 2001) (California conviction in 1995 of violating California Penal Code § 245(a)(1) by committing an assault with a deadly weapon, with a sentence to one year in prison, constituted a crime of violence and therefore an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) for immigration purposes).

POSSESSION OF FIREARM BY FELON - FIREARMS OFFENSE
United States v. Castillo-Rivera, 244 F.3d 1020 (9th Cir. Mar. 26, 2001), cert. denied, 122 S.Ct. 294 (2001) (California conviction for violating California Penal Code § 12021(a), felon in possession of a firearm, constitutes an aggravated felony under INA § 101(a)(43)(E), 8 U.S.C. 1101(a)(43)(E), because it is "an offense described in" 18 U.S.C. § 922(g)(1), the federal felon-in-possession statute, even though the state crime, unlike § 922(g), does not include any interstate or foreign commerce federal jurisdictional element, and therefore supports sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A) for illegal re-entry conviction of violating INA § 176(a), 8 U.S.C. 1326(a)).

POSSESSION OF FIREARM BY ALIEN - FIREARMS OFFENSE
United States v. Sandoval-Barajas, 206 F.3d 853 (9th Cir. Mar. 13, 2000), cert. denied, 122 S.Ct. 408 (2001) (Washington conviction for possession of firearm by noncitizen, in violation of R.C.W. § 9.41.170, was not an aggravated felony, under INA § 101(a)(43)(E), 8 U.S.C. § 1101(a)(43)(E), for purposes of 16-level enhancement under Sentencing Guidelines for illegal re-entry conviction, since the state statute was broader than the applicable federal statute).

Lower Courts of Ninth Circuit

AGGRAVATED FELONY - FIREARMS OFFENSE - POSSESSION OF FIREARM BY ALIEN
United States v. Rodriguez-Magana, ___ F.Supp.2d ___, 2006 U.S. Dist. LEXIS 87021 (E.D. Wash. Nov. 29, 2006) (Washington conviction of unlawful possession of firearm, in violation of RCW 9.41.040(1)(a), does not categorically qualify as an aggravated felony firearms offense analogous to the federal offense of possession of a firearm by an undocumented noncitizen, under 18 U.S.C. 922(g)(5), because to commit the Washington offense, the defendant does not need to be a noncitizen or to be present in the United States illegally, and to commit the federal offense, the defendant does not need to have a prior felony conviction or its equivalent; therefore, the defendant was eligible for voluntary departure under 8 U.S.C. 1229c(a), and so suffered prejudice in removal proceedings when the Immigration Judge erroneously found he was ineligible for voluntary departure).

Lower Courts of Tenth Circuit

POSSESSION OF SAWED-OFF SHOTGUN - CRIME OF VIOLENCE
United States v. Villanueva-Gaxiola, 119 F.Supp.2d 1185 (D.Kan. Sept. 26, 2000) (California conviction for unlawful possession of short-barreled shotgun, in violation of California Penal Code § 12020, was not an aggravated felony as a crime of violence, under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), since it had no element of the use, attempt, or threat of violence under 18 U.S.C. § 16(a), and since it is a felony-misdemeanor statute, that "encompasses misdemeanor offenses, it cannot meet the definition of crime of violence in 18 U.S.C. § 16(b)," for purposes of U.S.S.G. § 2L1.2(b)(1)(A) 16-level sentence enhancement for illegal re-entry, even though defendant in fact received 16-month state prison sentence in state case).

POSSESSION OF SAWED-OFF SHOTGUN - FIREARMS OFFENSE
United States v. Villanueva-Gaxiola, 119 F.Supp.2d 1185 (D.Kan. Sept. 26, 2000) (California conviction for unlawful possession of short-barreled shotgun, in violation of California Penal Code § 12020, was not an aggravated felony under INA § 101(a)(43)(E)(iii), 8 U.S.C. 1101(a)(43)(E)(iii) as an offense described in 26 U.S.C. § 5861 or 18 U.S.C. 922(g)(5) for illegal re-entry sentencing purposes, since the elements of the state offense allow conviction for conduct which would not constitute the listed federal offense), following United States v. Sandoval-Barajas, 206 F.3d 853 (9th Cir. Mar. 13, 2000).

Eleventh Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " THROWING A DEADLY MISSLE AT AN OCCUPIED VEHICLE
United States v. Estrada, ___ F.3d ___, 2015 WL 479969 (11th Cir. Feb. 6, 2015) (per curiam) (Florida conviction for throwing a deadly missile, a violation of Florida Statute 790.19, was not categorically a conviction for a crime of violence, for illegal reentry sentencing purposes, because We concluded that Estrella could be deemed to have been convicted of a crime of violence if his conviction was for wanton conduct, because Florida law defines wanton to mean that one has acted intentionally or with reckless indifference to the consequences and with knowledge that damage is likely to be done to some person. Id. at 1253. But if instead Estrella had been convicted of only malicious conduct, the latter was satisfied by knowledge that injury or damage would be done to a person or to property and, in that case, Estrella would not be deemed to have been convicted of a crime of violence.), following United States v. Estrella, 758 F.3d 1239 (11th Cir. 2014).