Safe Havens

The two crime of violence definitions under 18 U.S.C. § 16(a) and 16(b) have different requirements regarding whether an offense must be a felony to be a crime of violence.  For an offense to be a crime of violence under 18 U.S.C. § 16(b), it must be a felony, rather than a misdemeanor or other more minor offense.[447]  Thus, if the court of conviction designates the conviction as a misdemeanor or other lesser offense, or later reduces it to a non-felony, the conviction cannot be considered a “crime of violence” under this second prong of the crime of violence aggravated felony definition.  See § § 7.19, 7.21, supra.

[447] 18 U.S.C. § 16(b) specifies that the offense must be “any other offense that is a felony. . . .”  For example, a federal district court has held that a California conviction for possession of a dangerous weapon cannot constitute a crime of violence under 18 U.S.C. § 16(b) because it encompasses misdemeanors.  United States v. Villanueva-Gaxiola, 119 F. Supp.2d 1185, 1190 (D. Kansas 2000).