(A)  Aggravated Felonies.[43]  See also § § 7.41 ff., supra.

 

Fifth Circuit:

 

United States v. Martinez-Mata, 393 F.3d 625 (5th Cir. Dec. 10, 2004) (Texas conviction of retaliation under Texas Penal Code § 36.06 is not a crime of violence for sentencing purposes since it does not have, as an element, the use, attempted use, or threatened use of physical 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 16-level enhancement under U.S.S.G. § 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 U.S.S.G. § 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. Landeros-Arreola, 260 F.3d 407 (5th Cir. July 27, 2001) (reduction of sentence imposed for Colorado menacing conviction, after successful completion of Colorado’s Regimented Inmate Training Program, from four years imprisonment to probation, was not mere suspension of execution of sentence, but effectively reduced custody term below one year, so that state menacing conviction did not constitute crime of violence “aggravated felony” conviction, with one year sentence imposed, under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), and no longer was sufficient to trigger a sentence enhancement of an illegal re-entry sentence).

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

Fifth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " CRIMINAL THREATS
United States v. Cruz-Rodriguez, 625 F.3d 274, 277 (5th Cir. Nov. 2, 2010) (per curiam) (California conviction of criminal threats, in violation of Penal Code 422, did not constitute a crime of violence under U.S.S.G. 2L1.2(b)(1)(A)(ii), for purposes of imposing a 16-level enhancement to the offense level for illegal reentry sentence: On the other hand, with respect to the offense of making a criminal threat, we previously held in an unpublished opinion that the use, attempted use, or threatened use of physical force against the person of another is not an element of California Penal Code 2L1.2(b)(1)(A)(ii) because it is possible under [California] law for the State to obtain a conviction under ... the terroristic threats statute without proof of the threatened use of physical force against another person .... United States v. De La Rosa-Hernandez, 264 Fed.Appx. 446, 447-49 (5th Cir.2008) (unpublished) (internal quotation marks and citations omitted) (alteration in original). We likewise find this reasoning persuasive. In addition, this court reached the same conclusion with respect to a similar Pennsylvania statute, holding that the generic terroristic-threat offense at issue in that case is not a crime of violence. United States v. Ortiz-Gomez, 562 F.3d 683, 684-86 (5th Cir.2009). Therefore, we hold that the offense of making a criminal threat is not a crime of violence for the purpose of sentencing adjustments under U.S.S.G. 2L1.2(b)(1)(A)(ii).).

Eighth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - TERRORISTIC THREATS
Olmsted v. Holder, 588 F.3d 556 (8th Cir. Dec. 4, 2009) (Minnesota conviction of making terroristic threats, in violation of Minn. Stat. 609.713(1) is a divisible statute, since it may be committed recklessly).

Ninth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " COERCION
Cortez-Guillen v. Holder, 623 F.3d 933 (9th Cir. Oct. 5, 2010) (Alaska conviction of coercion, in violation of Alaska Statute 11.41.530(a)(1), compelling another to do an act by instilling fear of injury or commission of any other crime, did not categorically constitute a crime of violence aggravated felony, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), because it could be committed by a threat of a nonviolent crime such as blackmail).