(A)  Aggravated Felonies. [41]  See § 7.156, supra.

 

Fifth Circuit:

 

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).

 

The court reasoned that on its face, the statute, and in turn the elements of the offense, do not require any use, or threatened or attempted use, of physical force, and there are forms of harassment that necessarily do not by their nature involve conduct that presents a serious risk of physical harm.  For example, harassment could be mere repetitive phone calls or suicide threats, and when an indictment is silent as to the offender’s actual conduct, as it is here, the court must proceed under the assumption that the noncitizen’s conduct constituted the “least culpable act satisfying the count of conviction.” United States v. Houston, 364 F.3d 243, 246 (5th Cir.2004).

 

Ninth Circuit:

Singh v. Ashcroft, 386 F.3d 1228 (9th Cir. Oct. 21, 2004) (Oregon Revised Statute § 166.065(1)(a)(A), punishing intentionally harassing or annoying another person by subjecting that person to offensive physical contact is not a crime of violence, and therefore not a crime of domestic violence for immigration purposes, since the force required to commit the offense, including spitting, is not necessarily “violent” force).

[41] See N. Tooby, Aggravated Felonies § § 5.13-5.15, Crimes of Violence (2003).

Ninth Circuit

AGGRAVATED FELONY - STALKING - CRIME OF VIOLENCE
Malta-Espinoza v. Gonzales, __ F.3d __ , 2007 WL 624532 (9th Cir. Mar. 2, 2007) (California stalking conviction, in violation of Penal Code 649.9, is not an aggravated felony crime of violence for immigration purposes, since even the more serious portion of the statute does not necessarily create a risk that force may be used; the California stalking statue requires an intent to create fear, but not require intent to carry out the threat - the statute may be violated even if the defendant was incarcerated or thousands of miles away and completely unable to carry out the threat.) http://caselaw.lp.findlaw.com/data2/circs/9th/0471140p.pdf

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 - 18 USC 16(b) - STALKING NOT AGGRAVATED FELONY SINCE IT MIGHT HAVE BEEN COMMITTED BY HARASSMENT FROM A DISTANCE, WHICH DOES NOT PRESENT A SUBSTANTIAL RISK THAT VIOLENT FORCE WILL INTENTIONALLY BE USED IN THE COMMISSION OF THE OFFENSE
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(b), because the offense might have been committed by harassment from a distance, which does not present a substantial risk that violent force will be used in the commission of the offense).

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 USC 16(b) - STALKING NOT AGGRAVATED FELONY SINCE IT PRESENTED A RISK THAT FORCE WILL RECKLESSLY BE USED IN THE COMMISSION OF THE OFFENSE, AND RECKLESS USE OF FORCE IS INSUFFICIENT TO QUALIFY AS CRIME OF VIOLENCE
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(b), because it presented a substantial risk that that violent force will recklessly be used in the commission of the offense, and reckless use of force does not qualify as a crime of violence).