Safe Havens

An offense that may be committed by mere negligence,[411] or as a strict liability offense, is a safe haven in that it cannot constitute a crime of violence.[412]  The use of force necessary to constitute a crime of violence must be intentional,[413] and thus an offense with a mental element of mere recklessness or gross negligence is arguably also insufficient to constitute a crime of violence.[414]  The Supreme Court, however, has not yet ruled on whether recklessness is a sufficient mens rea to constitute a crime of violence.[415]

[411] United States v. Pimental-Flores, 339 F.3d 959 (9th Cir. August 11, 2003) (Washington conviction of third degree assault in violation of court order, under Rev. Code of Washington § 26.50.110(4) may fail to trigger a 16-level illegal re-entry sentence enhancement, as a crime of violence under U.S.S.G. § 2L1.2 (2001), because the statute proscribes merely negligent assault).

[412] United States v. Contreras-Salas, 387 F.3d 1095 (9th Cir. Nov. 3, 2004) (Nevada conviction of child abuse under Nev. Rev. Statutes § 200.508, does not qualify as a crime of violence for purposes of enhancement of sentence for unlawful re-entry after deportation, since statute may be violated by negligence alone, and record of conviction was unclear as to level of intent).

[413] United States v. Vargas-Duran, 356 F.3d 598 (5th Cir. Jan. 8, 2004) (Texas conviction of intoxication assault — “by accident or mistake, while operating an aircraft, watercraft or motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another” — in violation of Tex. Penal Code Ann. § 49.07 (1994), did not constitute a crime of violence, and so was not an 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 under U.S.S.G. § 2L1.2(b)(1)(A)(ii), Application Note 1(B)(ii)(I) (2001), because the crime of violence definition requires that the defendant must intentionally avail himself of the use, attempted use, or threatened use of physical force against the person of another, and that this must be an element of the predicate offense).

[414] United States v. Dominguez-Hernandez, 98 Fed.Appx. 331 (5th Cir. May 21, 2004) (Not selected for publication in the Federal Reporter) (Texas conviction of involuntary manslaughter, in violation of Texas Penal Code § 19.04(a)(1) (Vernon 2003) (“recklessly causes the death of an individual”), with six-year prison sentence, does 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 enhancement of illegal re-entry sentence under USSG § 2L1.2(b)(1)(A)(ii) (Nov. 1, 2000), since the statute of conviction does not require that government establish use of intentional physical force to obtain conviction).

[415] The court expressly failed to address whether a state or federal offense that required proof of the reckless use of force against the person or property of another qualified as a crime of violence. Leocal v. Ashcroft, ___ U.S. ___, 125 S.Ct. 377, 384 (November 9, 2004).