Safe Havens

(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).