Safe Havens

(A)  Aggravated Felonies.  See § § 7.76-7.78, supra.

Trafficking in firearms and explosives, and certain specifically listed firearms and explosives offenses constitute aggravated felonies.[184]  Actual use of firearms or explosives to harm, or attempt to harm, persons or property can also constitute an aggravated felony under the “crime of violence” theory.[185]  Most of the cases holding that a firearms, explosive, or other weapon possession offense was not an aggravated felony are in the context of possession offenses.

Fifth Circuit:

United States v. Diaz-Diaz, 327 F.3d 410 (5th Cir April 3, 2003) (Texas conviction for possession of a prohibited weapon — a short-barrel firearm — in violation of Tex. Penal Code § 46.05, did 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 sentence enhancement for illegal re-entry pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(iii)(2000), since there is no element or substantial risk that force will be used in the commission of the offense).

United States v. Medina-Anicacio, 325 F.3d 638 (5th Cir. March 24, 2003) (California conviction of possession of a deadly weapon — a dirk or dagger — in violation of Penal Code § 12020(a), does not constitute a “crime of violence” within the meaning of 18 U.S.C. § 16(b), because there is no substantial risk that an offender may use violence to perpetrate the weapon possession offense, and it therefore does not constitute an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) for illegal re-entry sentence enhancement purposes under U.S.S.G. § 2L1.2).

United States v. Reyna-Espinosa, 117 F.3d 826 (5th Cir. July 11, 1997) (federal conviction for unlawful possession of a firearm by an alien under 18 U.S.C. § 922(g)(5) does not constitute an “aggravated felony” for purposes of increasing the defendant’s offense level for illegal re-entry by 16 levels pursuant to U.S.S.G. § 2L1.2(b)(2), although it does for immigration purposes).

Ninth Circuit:

United States v. Fish, 368 F.3d 1200 (9th Cir. May 28, 2004) (Oregon conviction of possession of a destructive device, under Or. Rev. Stat. § 166.382, did not constitute “a crime of violence” under the United States Sentencing Guidelines to allow an increased offense level in determining sentencing).

United States v. Sandoval-Barajas, 206 F.3d 853 (9th Cir. Mar. 13, 2000), cert. denied, 534 U.S. 979, 122 S.Ct. 408 (2001) (Washington conviction for possession of firearm by noncitizen, in violation of R.C.W. § 9.41.170 (1998), was not an aggravated felony, under 8 U.S.C. § 1101(a)(43)(E), for purposes of 16-level enhancement under Sentencing Guidelines for illegal re-entry conviction, since the state statute was broader than the applicable federal statute).

District Courts:

United States v. Villanueva-Gaxiola, 119 F.Supp.2d 1185 (D.Kan. Sept. 26, 2000) (California conviction for unlawful possession of short-barreled shotgun, in violation of California Penal Code § 12020, was not aggravated felony under INA § 101(a)(43)(E)(ii), 8 U.S.C. § 1101(a)(43)(E)(ii) (“an offense described in section 922(g) . . . (5) of title 18, United States Code.” 18 U.S.C. § 922(g)(5) states that it is unlawful for an illegal alien “to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition”), for purposes of U.S.S.G. § 2L1.2(b)(1)(A) providing for 16 level enhancement to sentence for illegal re-entry, since he was convicted of “possession of a dangerous weapon,” not “possession of a firearm by an alien”), following United States v. Sandoval-Barajas, 206 F.3d 853 (9th Cir. 2000).

[184] INA § § 101(a)(43)(C), (E), 8 U.S.C. § § 1101(a)(43)(C), (E).  See N. Tooby, Aggravated Felonies § § 5.27-5.29 (2003).

[185] INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F).  See N. Tooby, Aggravated Felonies § § 5.13-5.15 (2003).