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).

First Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(a) -- ASSAULT WITH A DANGEROUS WEAPON
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts conviction for assault and battery with a dangerous weapon, under M.G.L. ch. 265, 15A, did not categorically constitute a crime of violence, under 18 U.S.C. 16(a), because the minimum conduct punishable under this statute does not have as an element the use of violent force, but instead covers even the slightest touching with a dangerous weapon).

Second Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " THIRD-DEGREE BURGLARY
United States v. Folkes, 622 F.3d 152 (2d Cir. Sept. 29, 2010) (per curiam) (New York conviction of third degree burglary, in violation of N.Y. Penal Law 140.20 [knowingly enters or remains unlawfully in a building with intent to commit a crime therein.], did not categorically constitute crime of violence for illegal re-entry sentencing purposes, since the statute does not necessarily involve use of force against another).

Fourth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " RESISTING ARREST
United States v. Aparicio-Soria, 740 F.3d 152 (4th Cir. Jan. 14, 2014) (en banc) (Maryland conviction of resisting arrest, in violation of Md. Code, Crim. Law 9"408(b)(1) [[a] person may not intentionally ... resist a lawful arrest.], does not qualify categorically as a "crime of violence" within the meaning of the residual force clause of U.S.S.G. 2L1.2(b)(1)(A), because it does not have as an element the use, attempted use, or threatened use of physical force against the person of another).

AGGRAVATED FELONY " CRIME OF VIOLENCE " RESISTING ARREST
United States v. Aparicio-Soria, 740 F.3d 152 (4th Cir. Jan. 14, 2014) (en banc) (Maryland conviction of resisting arrest, in violation of Md. Code, Crim. Law 9"408(b)(1) [[a] person may not intentionally ... resist a lawful arrest.], does not qualify categorically as a "crime of violence" within the meaning of the residual force clause of U.S.S.G. 2L1.2(b)(1)(A), because it does not have as an element the use, attempted use, or threatened use of physical force against the person of another).

AGGRAVATED FELONY " CRIME OF VIOLENCE " CHILD ABUSE
United States v. Gomez, 690 F.3d 194 (4th Cir. Aug. 10, 2012) (Maryland conviction of child abuse, in violation of Maryland Code 1957, Article 27, 35C, was not a crime of violence for illegal re-entry sentencing purposes because the offense could be committed without use of force).

Fifth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " AGGRAVATED ASSAULT
United States v. Esparza-Perez, 681 F.3d 228 (5th Cir. May 14, 2012) (Arkansas conviction of aggravated assault [[e]ngag[ing] in conduct that creates a substantial danger of death or serious physical injury to another person.] is not a crime of violence under the residual clause of USSG 2L1.2, because the statute does not require any contact or injury or attempt or threat of offensive contact or injury, thus did not have as an element "the use, attempted use, or threatened use of physical force against the person of another).

AGGRAVATED FELONY " CRIME OF VIOLENCE " AGGRAVATED ASSAULT
United States v. Esparza-Perez, 681 F.3d 228 (5th Cir. May 14, 2012) (Arkansas conviction of aggravated assault, in violation of Ark. Code 5-13-204(a)(1), is not a crime of violence for illegal re-entry sentencing purposes, under U.S.S.G. 2L1.2 cmt. n.1(B)(iii), because it does not require proof of an assault as that crime is generally defined"i.e., as an offense that involves the use, attempted use, or threatened use of offensive contact against another person).

AGGRAVATED FELONY"CRIME OF VIOLENCE"SEXUAL ACTIVITY WITH A MINOR
United States v. Chavez-Hernandez, 671 F.3d 494 (5th Cir. Feb. 13, 2012) (Florida conviction for sexual activity with a minor, in violation of Florida Statute 794.05, was not a crime of violence for illegal re-entry sentencing purposes, because state statute applied to 17-year-olds; defense counsel's admission at sentence that victim was 14 years of age established victim's status as a minor under the federal standard).

AGGRAVATED FELONY"CRIME OF VIOLENCE"DOMESTIC ASSAULT AND BATTERY
United States v. Miranda-Ortegon, 670 F.3d 661 (5th Cir. Feb. 10, 2012) (Oklahoma conviction for domestic assault and battery, in violation of Okla. Stat. tit. 21, 644C [[a]ny person who commits an assault and battery against a current or former spouse ... [or] a child ... shall be guilty of domestic abuse.], did not constitute an aggravated felony crime of violence for illegal re-entry sentencing purposes because the elements of the offense require only the slightest touching is necessary to constitute the force or violence element of battery.); quoting Steele v. State, 778 P.2d 929, 931 (Okla.Crim.App.1989); see United States v. Smith, 652 F.3d 1244, 1246 (10th Cir.2011) (Oklahoma assault-and-battery offense did not fall within the first prong of the Armed Career Criminal Act [has as an element the use, attempted use, or threatened use of physical force against the person of another, 18 U.S.C. 924(e)(2)(B)(i)]); see Johnson v. United States, """ U.S. """", 130 S.Ct. 1265, 1269"71, 176 L.Ed.2d 1, (2010) (holding that Florida felony battery conviction was not a violent felony under 18 U.S.C. 924(e)(1)(2)(B)(i), because the offense's elements are satisfied by any physical contact, no matter how slight (quotation marks and internal citation omitted)).

AGGRAVATED FELONY - CRIME OF VIOLENCE - CHILD MOLESTATION
United States v. Beliew, 492 F.3d 314 (5th Cir. Jul. 5, 2007) (Louisiana conviction for child molestation, in violation of L.S.A.-R.S. 14:81.2(A), is a crime of violence for Armed Career Criminal Act purposes, as a "forcible sex offense" since it requires as an element, "force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or ... use of influence by virtue of a position of control or supervision over the juvenile"; finding that use of influence over juvenile was "constructive" use of force.)

AGGRAVATED FELONY - CRIME OF VIOLENCE - BANK ROBBERY
United States v. Dentler, 492 F.3d 306 (5th Cir. No. Jul. 3, 2007) (federal conviction in violation of 18 U.S.C. 2113(a), of attempted entry of a bank with intent to commit robbery, is not a crime of violence for Armed Career Criminal Act sentencing provisions).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT ON POLICE OFFICER
United States v. Fierro-Reyna, __ F.3d __ (5th Cir. Sept. 28, 2006) (Texas conviction from 1979 for aggravated assault on a police officer, in violation of Penal Code 22.02(a)(2) (1974) [punishing simple assault on a police officer] is not a "crime of violence" for illegal re-entry sentencing purposes, since simple assault does not necessarily require use of force; state classification of assault as aggravated because it is committed against a police officer is irrelevant). http://caselaw.lp.findlaw.com/data2/circs/5th/0551198cr0p.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - ATTEMPTED SEXUAL BATTERY
United States v. Meraz-Enriquez, __ F.3d __, 2006 WL 515477 (5th Cir. Mar. 3, 2006) (Kansas conviction of attempted sexual battery, in violation of Kan. Stat. Ann. 21- 3518, which punishes a sexual touching of a person who is too intoxicated to be able to give consent to the touching, is not a crime of violence for illegal re-entry sentencing purposes because the offense does not require the use of force).

AGGRAVATED FELONY - CRIME OF VIOLENCE
United States v. Gonzalez-Chavez, __ F.3d __, 2005 WL 3196524 (5th Cir. Nov. 30, 2005) (aggravated battery under 784.045 of the Florida Statutes is a divisible statute, as the statute may be committed by any assault on a pregnant woman, including spitting, which does not involve the use, attempted use, or threatened use of force, and therefore may not be an aggravated felony crime of violence for sentencing purposes).
http://caselaw.lp.findlaw.com/data2/circs/5th/0440173cr0p.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - SHOOTING INTO OCCUPIED BUILDING NOT CRIME OF VIOLENCE SINCE OFFENSE MAY BE COMMITTED WITHOUT ACTUALLY SHOOTING, ATTEMPTING TO SHOOT, OR THREATENING TO SHOOT ANOTHER PERSON
United States v. Alfaro, ___ F.3d ___, 2005 WL 976995 (5th Cir. April 28, 2005) (Virginia conviction of shooting into an occupied dwelling, in violation of Va.Code Ann. 18.202-79 (1993), did not constitute a crime of violence for purposes of enhancing his sentence for illegal reentry by sixteen levels under U.S.S.G. 2L1.2(b)(1)(A)(ii) (2002), because (a) this offense is not enumerated in the guideline, (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, so district court committed plain error in sentencing).

Seventh Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - DISCHARGING A FIREARM
United States v. Jaimes-Jaimes, ___ F.3d ___, 2005 WL 1083731 (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 reentry, 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).

Eighth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - SEXUAL ABUSE OF A MINOR
United States v. Medina-Valencia, 538 F.3d 831 (8th Cir. Aug. 13, 2008) (Texas conviction for indecency with a minor, in violation of Texas Penal Code 21.11(a)(1) not categorically sexual abuse of a minor for illegal re-entry sentencing purposes; "Subsection (a)(1), then, prohibits consensual sexual contact between two persons who are a day under 17, and of the same gender. This does not fit the ordinary, contemporary, common meaning of sexual abuse of a minor.")

AGGRAVATED FELONYMANSLAUGHTER - 18 U.S.C. 16(a) - MINNESOTA CONVICTION FOR SECOND-DEGREE MANSLAUGHTER NOT A COV SINCE NO ELEMENT OF USE OF FORCE
United States v. Torres-Villalobos, 487 F.3d 607, ___, (8th Cir. May 9, 2007) (Minnesota conviction for second-degree manslaughter, in violation of Minn.Stat. 609.205, did not qualify as crime of violence, under 18 U.S.C. 16(a), and is therefore not an "aggravated felony," under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), since it does not have as an essential element the intentional use of force: "Under Minnesota law, a person can commit second-degree manslaughter without using force or risking the intentional use of force. Minn.Stat. 609.205. A person can commit this crime by recklessly leaving a child alone with lit candles that later start a fire, State v. Boyer, No. C8-01-617, 2001 WL 1491450, at * 1 (Minn.Ct.App. Nov. 27, 2001), by allowing a child to die of dehydration while in the person's care, State v. Williams, No. A04-1694, 2005 WL 3046328, at * 1 (Minn.Ct.App. Nov. 15, 2005), by leaving explosives and blasting caps stored in an automobile where they are later ignited by the use of jumper cables, State v. Bicek, 429 N.W.2d 289, 291 (Minn.Ct.App.1988), and, indeed, by driving drunk with "culpable negligence" in a manner that causes the death of a passenger. State v. Geary, 239 N.W. 158, 159-60 (Minn.1931). As such, the "use of force," as Leocal interpreted that phrase, is not an element of a second-degree manslaughter conviction."), overruling United States v. Moore, 38 F.3d 977, 981 (8th Cir. 1994) (decided under 18 U.S.C. 924(c)(3)); see also Omar v. INS, 298 F.3d 710, 715-17 (8th Cir. 2002) (holding that criminal vehicular homicide is a crime of violence under 16 for immigration purposes).

Ninth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " SEXUAL BATTERY
United States v. Espinoza-Morales, 621 F.3d 1141 (9th Cir. Sept. 10, 2010) (California conviction of sexual battery, in violation of Penal Code 243.4(a), unlawful sexual touching of a restrained person, did not constitute a crime of violence for illegal re-entry sentencing purposes, since the offense may be committed through duress, and without use of force).

AGGRAVATED FELONY " CRIME OF VIOLENCE " PENETRATION WITH FOREIGN OBJECT
United States v. Espinoza-Morales, 621 F.3d 1141 (9th Cir. Sept. 10, 2010) (California conviction for penetration with a foreign object, in violation of California Penal Code 289(a)(1), does not categorically constitute a crime of violence for illegal re-entry sentencing purposes, since the offense may be committed through duress alone, and without use of force).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT
Suazo Perez v. Mukasey, 512 F.3d 1222 (9th Cir. Jan. 22, 2008) (Washington conviction for fourth degree assault, in violation of RCW 9A.36.041 is not categorically an aggravated felony crime of violence, since it may be committed by any offensive touching).

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 USC 16(a) - STALKING NOT COV SINCE NO ELEMENT OF FORCE SINCE THREAT TO SAFETY WAS NOT LIMITED TO PHYSICAL SAFETY
Malta-Espinoza v. Gonzales, ___ F.3d ___, 2007 WL 624532 (9th Cir. March 2, 2007) (California conviction of stalking [harassing or following with threats], in violation of Penal Code 646.9, did not constitute an aggravated felony crime of violence, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), as defined by 18 U.S.C. 16(a), because the threat to safety is not limited to physical safety, and the offense therefore did not have the required element of the use of force), following United States v. Jones, 231 F.3d 508 (9th Cir. 2000).

AGGRAVATED FELONY - CRIME OF VIOLENCE - FALSE IMPRISONMENT
United States v. Gonzalez-Perez, 472 F.3d 1158 (9th Cir. Jan. 10, 2007) (Florida conviction of false imprisonment under Florida law, did not constitute a crime of violence under U.S.S.G. 2L1.2(b)(1)(A)(ii), to warrant imposition of a 16-level sentence enhancement for illegal re-entry following deportation, because offense may be committed "secretly" without use of force). http://caselaw.lp.findlaw.com/data2/circs/9th/0510693p.pdf

RECORD OF CONVICTION - JUDICIAL NOTICE - AGE OF THE DEFENDANT - PROBABLY NOT A PROPER SUBJECT OF JUDICIAL NOTICE AGGRAVATED FELONY - CRIME OF VIOLENCE - SEXUAL ABUSE OF A MINOR
Valencia v. Gonzales, ___ F.3d ___, 2006 WL 522452 (9th Cir. Mar. 6, 2006) (court of appeal declined to take judicial notice of age of defendant in applying modified categorical analysis to California conviction of unlawful sex with person under 18 years, in violation of California Penal Code 261.5(c), to determine whether the record of conviction established a substantial risk that force may be used in committing the offense to bring the conviction within the definition of a crime of violence under 18 U.S.C. 16(b)), withdrawing and replacing 431 F.3d 673 (9th Cir. December 12, 2005). http://caselaw.lp.findlaw.com/data2/circs/9th/0372028op.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 U.S.C. 16(b) - UNLAWFUL SEX WITH A MINOR - MODIFIED CATEGORICAL ANALYSIS DOES NOT BRING CONVICTION WITHIN AGGRAVATED FELONY DEFINITION BECAUSE IT DOES NOT ESTABLISH AGGRAVATING FACTORS, SUCH AS USE OF A THREAT OF FORCE OR STALKING OF THE MINOR, THAT MIGHT CREATE A SUBSTANTIAL RISK THAT VIOLENT FORCE MAY BE USED TO COMMIT THE OFFENSE

Valencia v. Gonzales, ___ F.3d ___, 2006 WL 522452 (9th Cir. Mar. 6, 2006)(California conviction of unlawful sexual intercourse with a person under 18 years of age, who is more than three years younger than the perpetrator, in violation of California Penal Code 261.5(c), is not categorically a crime of violence under 18 U.S.C. 16(b), or an aggravated felony under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for removal purposes, since the minimum conduct does not fall within the ground, and applying a modified categorical analysis: "Our inquiry here is whether the documents of conviction or other judicially noticeable facts suggest that the offense, by its nature, involves the targeted risk of the use of physical force: for instance, that the unlawful intercourse was preceded by a threat or the stalking of the minor" and the documents of record do not do so), withdrawing and replacing 431 F.3d 673 (9th Cir. Dec. 12, 2005). http://caselaw.lp.findlaw.com/data2/circs/9th/0372028op.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 U.S.C. 16(b) - UNLAWFUL SEX WITH A MINOR
Valencia v. Gonzales, ___ F.3d ___, 2006 WL 522452 (9th Cir. Mar. 6, 2006) (California conviction of unlawful sexual intercourse with a person under 18 years of age, who is more than three years younger than the perpetrator, in violation of California Penal Code 261.5(c), for which a sentence of one year had been imposed, is not a crime of violence under 18 U.S.C. 16(b), and therefore not a crime of violence aggravated felony under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for removal purposes, because the full range of conduct defined by the elements of the offense of conviction does not "by its nature, involve[] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense," because the statute of conviction prohibits consensual sexual intercourse between a twenty-one-year-old and a minor one day shy of eighteen, who is fully capable of freely and voluntarily consenting to sexual relations, so the minor's deemed incapacity does not suggest a risk that force may be used in committing the offense), withdrawing and replacing 431 F.3d 673 (9th Cir. December 12, 2005), distinguishing United States v. Asberry, 394 F.3d 712, 716-18 (9th Cir. 2005)(conviction for the statutory rape of a victim under the age of sixteen is categorically a crime of violence under U.S.S.G. 4B1.2(a)(2)[crime of violence is defined under this guideline as an offense that poses a "serious potential risk of physical injury to another"] because consequences of sexual intercourse such as pregnancy and sexually transmitted disease fall within the meaning of "physical injury").
http://caselaw.lp.findlaw.com/data2/circs/9th/0372028op.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 U.S.C. 16(a) - UNLAWFUL SEX WITH A MINOR
Valencia v. Gonzales, ___ F.3d ___, 2006 WL 522452 (9th Cir. Mar. 6, 2006) (California conviction of unlawful sexual intercourse with a person under 18 years of age, who is more than three years younger than the perpetrator, in violation of California Penal Code 261.5(c), for which a sentence of one year had been imposed, is not a crime of violence under 18 U.S.C. 16(a), and therefore not a crime of violence aggravated felony under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for removal purposes, because the offense of conviction does not have "as an element the use, attempted use, or threatened use of [violent] physical force against the person or property of another."), withdrawing and replacing 431 F.3d 673 (9th Cir. Dec. 12, 2005).
http://caselaw.lp.findlaw.com/data2/circs/9th/0372028op.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - UNLAWFUL SEX WITH A MINOR - HELD NOT TO BE A CRIME OF VIOLENCE
Valencia v. Gonzales, ___ F.3d ___, 2005 WL 3358678 (9th Cir. Dec. 12, 2005) (original opinion, 406 F.3d 1154, superseded and withdrawn on denial of rehearing and rehearing en banc) (California conviction of engaging in unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator under Penal Code section 261.5(c) is not, absent aggravating factors, a crime of violence under 18 U.S.C. 16 for deportation purposes, since it does not have force as an element, under 16(a), and the full range of conduct encompassed by this offense does not present a substantial risk that violent force will be used in the commission of the offense under 16(b); mere inability to give legal consent if under 18 does not create a substantial risk that violent force will be used to commit the offense where actual consent is present; decision did not consider whether this conviction constituted a sexual abuse of a minor aggravated felony because the noncitizen was not ordered removed on that ground).
http://caselaw.lp.findlaw.com/data2/circs/9th/0372028p.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - DOMESTIC VIOLENCE
United States v. Nobriga, ___ F.3d ___ (9th Cir. May 20, 2005) (per curiam) (Hawaii conviction of abuse of a family or household member, in violation of Haw. Rev. Stat. 709-906(A), did not invariably constitute a conviction of a misdemeanor crime of domestic violence, under 18 U.S.C. 921(a)(33)(A)(ii), because it did not necessarily require the use of violent force against the body of another individual, since it also prohibited refusal to comply with the lawful order of a police officer, but the "physically abuse" prong "requires, at a minimum, a reckless use of physical force. See State v. Eastman, 81 Hawai'i 131, 913 P.2d 57, 66 (Haw.1996); see also State v. Miller, 105 Hawai'i 394, 98 P.3d 265, 266 n.1 (Haw.Ct.App.2004). "Recklessness" is an adequate mens rea to establish a "violent" use of force. See, e .g., United States v. Grajeda-Ramirez, 348 F.3d 1123, 1125 (9th Cir.2003), cert. denied, --- U.S. ----, 125 S.Ct. 863, 160 L.Ed.2d 781 (2005); United States v. Ceron-Sanchez, 222 F.3d 1169, 1172-73 (9th Cir.2000). Nobriga's AFHM conviction was therefore for a "violent use of force."); but this decision may have been undermined by Leocal v Ashcroft, 125 S.Ct. 377 (2004); see Lara-Cazares v. Gonzales, ___ F.3d ___ (9th Cir. May 23, 2005); Lara-Cazares v. Gonzales, ___ F.3d ___ (9th Cir. May 23, 2005).

AGGRAVATED FELONY - CRIME OF VIOLENCE - CONVICTION OF HAWAII OFFENSE DOES NOT CATEGORICALLY REQUIRE USE OF VIOLENT FORCE AND DOES NOT CONSTITUTE "CRIME OF DOMESTIC VIOLENCE" FOR PURPOSES OF FEDERAL FELON WITH GUN OFFENSE
United States v. Nobriga, ___ F.3d ___ (9th Cir. May 20, 2005) (per curiam) (Hawaii conviction of abuse of a family or household member, in violation of Haw. Rev. Stat. 709-906(A), did not invariably constitute a conviction of a misdemeanor crime of domestic violence, under 18 U.S.C. 921(a)(33)(A)(ii), because it did not necessarily require the use of violent force against the body of another individual, since it also prohibited refusal to comply with the lawful order of a police officer), following United States v. Belless, 338 F.3d 1063 (9th Cir. 2003).

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 U.S.C. 16(a) - STATUTORY RAPE DID NOT HAVE ELEMENT OF USE OF FORCE SO WAS NOT COV UNDER 16(a)
Valencia v. Gonzales, ___ F.3d ___ (9th Cir. May 12, 2005) (California conviction of unlawful sexual intercourse with a person under 18, in violation of Penal Code 261.5(c), with a five-year suspended sentence, did not have as an element the use or threat of force, and so did not constitute a crime of violence aggravated felony under 18 U.S.C. 16(a), within the meaning of INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), or triggered removal under INA 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii)).

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 U.S.C. 16(b) - STATUTORY RAPE WAS COV UNDER 16(b)
Valencia v. Gonzales, ___ F.3d ___ (9th Cir. May 12, 2005) (California conviction of unlawful sexual intercourse with a person under 18 (here 17), in violation of Penal Code 261.5(c), with a five year suspended sentence, constituted a crime of violence aggravated felony under 18 U.S.C. 16(b), within the meaning of INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), and therefore triggered removal under INA 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii), following United States v. Granbois, 376 F.3d 993 (9th Cir. 2004), even though in Granbois, the victim was 15, and in Granbois, the court considered whether the offense "presented a serious potential risk of physical injury to another" under USSG 4B1.2(a), whereas here the question is whether the offense presents "a substantial risk that physical force against the person or property of another may be used in the course of committing the offense," under 18 U.S.C. 16(b)).

Lower Courts of Ninth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - KIDNAP NOT CRIME OF VIOLENCE SINCE MAY BE COMMITTED BY DECEIT, NOT FORCE
People v. Dalerio, 144 Cal.App.4th 775 (Nov. 7, 2006) (California Penal Code 207(e), kidnapping, deceit plus constant physical presence was sufficient to find that defendant had used "force" to kidnap victim, since victim was a minor and was therefore unable to give consent to being taken.).

Tenth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - FALSE IMPRISONMENT
United States v. Ruiz-Rodriguez, 494 F.3d 1273 (10th Cir. Aug. 1, 2007) (Nebraska conviction of first-degree false imprisonment, under Neb.Rev.St. 28-312(1), 28-314(1), was not categorically a crime of violence for purposes of imposing a 16-level sentence enhancement under U.S.S.G. 2L1.2(b)(1)(A)(ii) for unlawful reentry since a defendant could be convicted restricting a person's movement by deception (instead of force or threat) under terrorizing circumstances, which did not necessarily encompass an element of force).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT
United States v. Hernandez-Garduno, __ F.3d __ (10th Cir. Aug. 21, 2006) (Colorado assault conviction, in violation of Colo. Rev. Stat. 18-3-204, is not categorically a crime of violence for illegal re-entry sentencing purposes). http://laws.lp.findlaw.com/10th/042224.html

Eleventh Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT
Hernandez v. U.S. Atty Gen., __ F.3d __, 2008 WL 160265 (11th Cir. Jan. 18, 2008) (Georgia conviction for simple battery, in violation of Ga. Code Ann. 16-5-23(a)(2), requiring a touching that goes beyond insult to the infliction of pain or physical injury, is an aggravated felony crime of violence for immigration purposes.) NOTE: the court suggests, in dicta, that even a simple touching would be enough to constitute a aggravated felony crime of violence.

AGGRAVATED FELONY - CRIME OF VIOLENCE - BATTERY - PREGNANT WOMAN
United States v. Llanos-Agostadero, 486 F.3d 1194 (11th Cir. May 15, 2007) (per curiam) (Florida conviction of aggravated battery on a pregnant woman, in violation of Fla. Stat. 784.045(1)(b) ["[a]ctually and intentionally touches or strikes another person" against the latter's will, or "[i]ntentionally causes bodily harm to another person." Small v. State, 889 So.2d 862, 863 (Fla.Dist.Ct.App.2004) (construing Fla. Stat. 784.03(1)(a), 784.045(1)(b))], constitutes a "crime of violence" under USSG 2L1.2(b)(1)(A)(ii); rejecting the argument that the use of physical force was not a necessary element of the state offense), following United States v. Griffith, 455 F.3d 1339, 1340-1345 (11th Cir. 2006); United States v. Glover, 431 F.3d 744, 747, 749 (11th Cir. 2005).

Other

AGGRAVATED FELONY " CRIME OF VIOLENCE " RESISTING EXECUTIVE OFFICER
People v. Nishi, 207 Cal.App.4th 954, 143 Cal.Rptr.3d 882 (1st Dist. Jul. 13, 2012) (California Penal Code 69, attempting to deter or resist an executive officer in the performance of duty, is affirmed where the prosecution established the elements of the offense by substantial evidence; the central requirement of an offense under 69 is an attempt to deter an executive officer from performing his or her duties imposed by law; unlawful violence, or a threat of unlawful violence, is merely the means by which the attempt is made; such threat is limited to a threat of unlawful violence used in an attempt to deter the officer).