Safe Havens

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.  See § 5.56, supra.  The United States Supreme Court, in Leocal v. Ashcroft[372] reaffirmed the necessity to analyze the elements of the offense of conviction, rather than to look to the facts of the conduct involved: “This language requires us to look to the elements and the nature of the offense of conviction, rather than to the particular facts relating to petitioner’s crime.”[373]  The federal courts are following suit.[374]

            The courts properly distinguish between statutes in which mere injury is an element, which are not crimes of violence, and statutes that require as an element the use of force.[375]

            Other federal courts agree in the somewhat analogous federal sentencing context.[376] 

[372] Leocal v. Ashcroft, ___ U.S. ___, 125 S.Ct. 377 (Nov. 9, 2004).

[373] Id. at 381.

[374] Milbin v. Ashcroft, 293 F.Supp.2d 158 (Dec. 2, 2003) (Connecticut conviction under any subdivision of Conn. Gen. Stat. § 53a-61, which prohibits various ways of causing injury to a person, did not constitute a crime of violence within the meaning of INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), 18 U.S.C. § 16(a), because it does not have use of force as an element, and could be violated by guile, deception, or even deliberate omission; following Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir. 2003)).

[375] Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir. 2003) (Connecticut conviction of third-degree assault in violation of section 53a-61(a)(1) of the Connecticut General Statutes, which involves the intentional infliction of physical injury upon another, is not a crime of violence under 18 U.S.C. § 16(a) (2000) and is therefore not an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) (2000), because use of force is not an element of the offense), overruling Matter of Martin, 23 I.& N. Dec. 491 (BIA 2002).

[376] United States v. Rodriquez-Rodriguez, 388 F.3d 466 (5th Cir. Oct. 15, 2004) (Texas Penal Code § 31.07(a), unauthorized use of a motor vehicle, is not a crime of violence for illegal re-entry sentencing purposes since the statute does not require, as an element, the use of force); United States v. Rodriquez-Rodriguez, 388 F.3d 466 (5th Cir. Oct. 15, 2004) (Texas Penal Code § 30.02, burglary of a building, is not a crime of violence for illegal re-entry sentencing purposes since the statute does not require, as an element, the use of force); United States v. Acuna-Cuadros, 385 F.3d 875 (5th Cir. Sept. 21, 2004) (per curiam) (Texas conviction for retaliation, in violation of Tex. Penal Code Ann. § 36.06 (1995), penalizing one who “knowingly harms or threatens to harm another by an unlawful act,” did not qualify as “crime of violence” supporting Sentencing Guidelines’ 16-level enhancement under USSG § 2L1.2(b)(1)(A)(ii), since the offense does not “ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another”), following United States v. Calderon-Pena, 383 F.3d 254 (5th Cir. Aug. 24, 2004) (per curiam); United States v. Martinez-Paramo, 380 F.3d 799 (5th Cir. Aug. 4, 2004) (Pennsylvania conviction for terroristic threats, in violation of 18 Pa. Cons. Stat. § 2706(a) (2003), was not established to be a crime of violence, under USSG § 2L1.2, comment (b)(ii)(I), for purposes of enhancing the sentence for illegal re-entry, since the offense is not on the list in (II) and the record does not establish that it “has as an element the use, attempted use, or threatened use of physical force against [the person of] another.”); United States v. Insaulgarat, 378 F.3d 456 (5th Cir. July 19, 2004) (Florida conviction of aggravated stalking [after being subject to a domestic violence protective order, “knowingly, willfully, maliciously, and repeatedly follows or harasses another person”], in violation of Florida Statute § 784.048(4) (1993), did not constitute a crime of violence within the meaning of U.S.S.G. § 4B1.1, for federal sentencing purposes, where harassment is defined as “engag[ing] in a course of conduct directed at a specific person that causes substantial emotional distress in such person . . . ,” under Fla. Stat. Ann. § 784.048(1)(a), because the aggravated stalking statute can be violated without the use or threatened use of physical force, and the additional information provided in the aggravated stalking indictment about the underlying injunction does not allege conduct which, by its nature, poses a serious potential risk of physical injury).