(B)  Crime of Violence.[274]  While a conviction must qualify under 18 U.S.C. § 16 in order to trigger removal as a crime of violence aggravated felony, the federal courts apply a different definition[275] to determine whether the same conviction would be a crime of violence for sentencing purposes.[276]  Thus, recent federal decisions defining “crime of violence” for sentence enhancement purposes may be distinguished from decisions defining it under 18 U.S.C. § 16 for removal purposes, because they are interpreting different language.  At least one court has held that a conviction does not need to be an aggravated felony in order to trigger the 16-level enhancement for prior crimes of violence.[277]

 

The crime of violence definition applied in the sentencing context differs in a number of ways from the definition used for immigration purposes, including:[278]

 

(1)     The guidelines definition includes a laundry list of offenses that are considered crimes of violence without further analysis (i.e., murder, manslaughter, kidnapping,[279] aggravated assault, forcible sex offenses,[280] statutory rape,[281] sexual abuse of a minor,[282] robbery,[283] arson, extortion, extortionate extension of credit, and burglary of a dwelling[284]).  Therefore, a conviction for one of these listed offenses will be considered a crime of violence for sentencing purposes, even though the statute of conviction may not qualify as such under 18 U.S.C. § 16.[285]

 

(2)     The guidelines definition does not include unlisted offenses that lack an element of use of force but do involve a substantial risk that force would be used in the commission of the offense.[286]

 

(3)     The guidelines definition does not include offenses that involve the use, attempted use, or threatened use of physical force against property.[287]  Therefore, an offense that would qualify as an aggravated felony crime of violence, applying 18 U.S.C. § 16(b), because it was committed against property, would only receive an 8-level increase as an aggravated felony, but not a 16-level increase as a crime of violence under the guidelines. [288]

 

(4)     For purposes of the 16-level increase for certain offenses, including a crime of violence, the offense must be a felony, as defined by federal law.[289]  Therefore, any offense punishable only by one year or less will not trigger a 16-level increase.[290]

 

Since the sentencing guidelines provide separate definitions of other types of offenses that may also be aggravated felonies (i.e., child pornography, drug trafficking, and firearms offenses), immigration/sentencing splits may develop in those areas as well.[291]

[274] See Lynn Hartfield, Challenging Crime of Violence Sentence Enhancements in Federal Court, 30 The Champion 28 (May 2006).

[275] “‘Crime of violence’ means any of the following: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.”  U.S.S.G. § 2L1.2, cmt n. 1(B)(iii).

[276] Note that there is another definition of “crime of violence” under the guidelines which is used, inter alia, for purposes of sentencing under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B), which is also distinguishable from the definition under 18 U.S.C. § 16.  U.S.S.G. § 4B1.2 (“any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that--(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”).  See, e.g., United States v. Lee, 310 F.3d 787 (5th Cir. Oct. 28, 2002).  This definition was applied in the illegal re-entry sentencing context prior to November 1, 2001.

[277] United States v. Hernandez-Garduno, 460 F.3d 1287 (10th Cir. Aug. 21, 2006) (to trigger 16-level sentence increase for illegal re-entry following conviction of a ‘crime of violence’, the crime does not need to also be an aggravated felony).

[278] See § § 19.41-19.49, infra, for an extensive discussion of 18 U.S.C. § 16(b).

[279] “Kidnapping” in this context is subject to a “generic definition” analyis.  United States v. Gonzalez-Ramirez, 477 F.3d 310 (5th Cir. Jan. 30, 2007) (Tennessee conviction for violation of Tenn. Code Ann. § 39-13-303 [“false imprisonment . . . (1) [u]nder circumstances exposing the other person to substantial risk of bodily injury; or (2) [w]here the confinement of another is in a condition of involuntary servitude] meets generic definition of “kidnapping,” [adopting Model Penal Code definition] for purposes of the “crime of violence” definition used in enhancing a sentence upon illegal re-entry prosecution).  See § 19.9, supra.  The aggravated felony definition of “kidnapping” may therefore not include all the same offenses, since aggravated felony kidnapping is defined by specific reference to listed federal statutes.

[280] United States v. Fernandez-Cusco, 447 F.3d 382 (5th Cir. Apr. 20, 2006) (Minnesota felony conviction for third degree sexual conduct, under Minn. Stat. 8 § 609.344, is not necessarily a “forcible sex offense,” and therefore not categorically a crime of violence for illegal re-entry sentencing purposes).

[281] See § 19.92, infra.

[282] It is possible a split may develop on what is considered sexual abuse of  a minor.  See United States v. Izaguirre-Flores, 405 F.3d 270 (5th Cir. Mar. 31, 2005) (applying a “common sense” approach to defining sexual abuse of a minor, rather than Taylor categorical and “generic offense” analysis, to find conviction for taking indecent liberties with a child, in violation of North Carolina General Statute § 14-202.1(a)(1), to be a crime of violence for sentencing purposes).

[283] United States v. Santiesteban-Hernandez, 469 F.3d 376 (5th Cir. Oct. 31, 2006) (Texas conviction for violation of Penal Code § 29.02(a)(1), robbery, is a crime of violence for illegal re-entry sentencing purposes, since the “crime of violence” definition, U.S.S.G. § 2L1.2(b)(1)(A)(ii), specifically includes “robbery” convictions, and the Texas offense falls within the generic definition of “robbery” [requiring theft and immediate danger to a person]).

[284] United States v. Murillo-Lopez, 444 F.3d 337 (5th Cir. Mar. 22, 2006) (California conviction for burglary, in violation of Penal Code § 459, is a crime of violence for purposes of 16-level sentence enhancement upon conviction of illegal re-entry, where defendant admitted, and did not dispute, that he was convicted of burglary of a dwelling, specifically listed as a crime of violence under U.S.S.G. § 2L1.2).

[285] Statutory rape may be a good example of where this might occur.  See Valencia v. Gonzales, 431 F.3d 673 (9th Cir. Dec. 12, 2005) (California conviction of engaging in unlawful sexual intercourse with a minor who is more than three years younger than the actor under Penal Code § § 261.5(c) is not, absent aggravating factors, a crime of violence under 18 U.S.C. § 16 for deportation purposes, since it does not have force as an element, under 18 U.S.C. § 16(a), and the full range of conduct encompassed by this offense does not present a substantial risk that violent force will be used in the commission of the offense under 18 U.S.C. § 16(b)), opinion withdrawn and superseded, 439 F.3d 1046 (9th Cir. Mar. 6, 2006), original opinion, 406 F.3d 1154 (9th Cir. May 12, 2005), superseded and withdrawn on denial of rehearing and rehearing en banc.

[286] Compare United States v. Lopez-Montanez, 421 F.3d 926 (9th Cir. Aug. 26, 2005) (California conviction of sexual battery under California Penal Code § 243.4, is not a categorical crime of violence under the federal Sentencing Guidelines, as the offense is not necessarily a “forcible” sex offense under U.S.S.G. § 2L1.2, cmt. n. 1(B)(ii)), with Lisbey v. Gonzales, 420 F.3d 930 (9th Cir. Aug. 22, 2005) (sexual battery under California Penal Code § 243.4 constitutes an aggravated felony for removal purposes, as the offense involves a substantial risk of physical force under 18 U.S.C. § 16(b)).

[287] As of November 1, 2001.

[288] United States v. Kelly, 422 F.3d 889 (9th Cir. Sept. 6, 2005); United States v. Jaimes-Jaimes, 406 F.3d 845, 849 (7th Cir. May 4, 2005) (“Notably, ‘crime of violence’ is defined more narrowly in § 2L1.2 than in other contexts because the definition does not encompass acts involving the use of force against property or acts that merely pose a risk of harm to another person.”).  Cf. United States v. Alfaro, 408 F.3d 204 (5th Cir. Apr. 28, 2005) (Virginia conviction of shooting into an occupied dwelling, in violation of Va.Code § 18.202-79 (1993), did not constitute a crime of violence for purposes of enhancing sentence for illegal re-entry by sixteen levels under U.S.S.G. § 2L1.2(b)(1)(A)(ii), because (a) this offense is not enumerated in the guideline, and (b) it does not have as an element the use or threat of force against another, since a defendant could violate this statute merely by shooting a gun at a building that happens to be occupied or by discharging a firearm within an unoccupied school building, without actually shooting, attempting to shoot, or threatening to shoot another person).

[289] U.S.S.G. § 2L1.2 cmt. 2 (“‘felony’ means any federal, state, or local offense punishable by imprisonment for a term exceeding one year.”).

[290] See, e.g., United States v. Simo-Lopez, 471 F.3d 249 (1st Cir. Dec. 22, 2006) (Puerto Rico conviction for aggravated battery, in violation of P.R. Laws Ann. tit. 33, § 4032(e), was considered a misdemeanor under Puerto Rico law because the court imposed a sentence of six months confinement, and the conviction therefore did not qualify as a “crime of violence,” under USSG § 2L1.2 which requires a conviction to be a felony).

[291] Compare, e.g., INA § 101(a)(43)(I), 8 U.S.C. § 1101(a)(43)(I) (child pornography under 18 U.S.C. § § 2251, 2251A or 2252), with U.S.S.G. § 2L1.2, cmt. n. 1(B)(ii) (child pornography under 18 U.S.C. § § 2251, 2251A, 2252, 2252A, and 2260).

AGGRAVATED FELONY " CRIME OF VIOLENCE " USE OF FORCE " ACCA
United States v. Castleman, ___ U.S. ___, 2014 WL 1225196 (Mar. 26, 2014) (Tennessee misdemeanor conviction of having intentionally or knowingly cause[d] bodily injury to the mother of his child, in violation of Tenn.Code Ann. 39"13"111(b), qualifies as a misdemeanor crime of domestic violence under Armed Career Criminals Act; element of violence is satisfied by offensive touching; this holding does not apply to 18 U.S.C. 16). NOTE: In footnote 4 of this decision, the Court expressly stated that such offensive touching convictions do not qualify as deportable crime of domestic violence convictions for immigration purposes under INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i) or crimes of violence aggravated felonies, as defined under 18 U.S.C. 16, for purposes of the aggravated felony definition, INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F) .

AGGRAVATED FELONY " CRIME OF VIOLENCE " USE OF FORCE " ACCA
United States v. Castleman, ___ U.S. ___, 2014 WL 1225196 (Mar. 26, 2014) (Tennessee misdemeanor conviction of having intentionally or knowingly cause[d] bodily injury to the mother of his child, in violation of Tenn.Code Ann. 39"13"111(b), qualifies as a misdemeanor crime of domestic violence under Armed Career Criminals Act; element of violence is satisfied by offensive touching; this holding does not apply to 18 U.S.C. 16). NOTE: In footnote 4 of this decision, the Court expressly stated that such offensive touching convictions do not qualify as deportable crime of domestic violence convictions for immigration purposes under INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i) or crimes of violence aggravated felonies, as defined under 18 U.S.C. 16, for purposes of the aggravated felony definition, INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F).

AGGRAVATED FELONY - DRUG TRAFFICKING - OFFERING TO SELL IS DRUG TRAFFICKING AS ATTEMPTED SALE - ILLEGAL RE-ENTRY CONTEXT
United States v. Gomez-Leon, 545 F.3d 777 (9th Cir. Sept. 24, 2008) (California conviction for sale or offering to sell a controlled substance, under Health & Safety Code 11379(a), constituted "drug trafficking crime" for guidelines purposes: "According to the written plea agreement, Gomez pled guilty to Count Two of the written complaint, which alleged that he "did unlawfully sell, furnish, administer, give away, or offer to sell, furnish, administer, and give away ... controlled substances." In other words, Gomez distributed a controlled substance or attempted to distribute one by offering to do so. Both distribution and attempted distribution of a controlled substance are "drug trafficking offenses." See U.S.S.G. 2L1.2(b)(1)(A) cmts. 1(B)(iv) & 5. Consequently, the district court did not err in finding that Gomez's conviction under California Health & Safety Code section 11379(a) was a "drug trafficking offense.""). This decision suffers from a lack of any analysis of "solicitation" or cases like Rivera-Sanchez or Coronado-Durazo.

AGGRAVATED FELONY - BURGLARY - DISTINCTION BETWEEN ARMED CAREER CRIMINAL ACT AND ILLEGAL REENTRY SENTENCE ENHANCEMENT
James v. United States, 550 U.S. ___, 127 S.Ct. 1586 (April 18, 2007) (Florida conviction for attempted burglary of a dwelling qualifies as a violent felony for the purposes of the Armed Career Criminal Act, 18 U.S.C 924(2)(B)(ii), under the residual provision in 18 U.S.C. 924(2)(B)(ii), as an offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another.")

Note: James v. United States does not apply to the question whether the statute triggers a 16-level sentence enhancement for illegal reentry after deportation, as a "burglary of a structure" enumerated offense, since USSG 2L1.2 cmt. n.1(B)(iii) does not contain a similar residual provision). United States v. Gomez-Guerra, ___ F.3d ___ (5th Cir. April 23, 2007) (United States Sentencing Guidelines Manual 2L1.2(b)(1)(A)(ii) (2005), as an enumerated offense ("burglary of a dwelling" under USSG 2L1.2 cmt. n.1(B)(iii)), does not include residual clause similar to that construed in James).

Second Circuit

AGGRAVATED FELONY - DEFINITION OF "AGGRAVATED FELONY" UNDER INA 101(a)(43) IS THE SAME IN BOTH CRIMINAL AND IMMIGRATION CONTEXTS
United States v. Ayon-Robles, ___ F.3d ___, 2009 WL 448184 (2d Cir. Feb. 24, 2009) (per curiam) ("the term "aggravated felony" has the same meaning under the Guidelines as under the INA" so a decision in an immigration case is binding on the court of appeals in an illegal reentry sentence case), following Alsol v. Mukasey, 548 F.3d 207 (2d Cir. 2008) (second felony conviction for simple drug possession was not an aggravated felony for purposes of the Immigration and Nationality Act of 1990, 8 U.S.C. 1101(a)(43)(B)).

CATEGORICAL ANALYSIS - ANALOGY TO SENTENCING CASES
James v. Mukasey, 522 F.3d 250 (2d Cir. Mar. 25, 2008) ("Finally, in the sentencing context, which has long informed our jurisprudence regarding aggravated felony findings under the INA, we recently remanded a case because it was unclear to what extent the District Court based its sentencing enhancement (for a "pattern of activity involving the sexual abuse or exploitation of a minor") on unsubstantiated charged conduct.")

Third Circuit

CATEGORICAL ANALYSIS - IMMIGRATION VS. SENTENCING
Nijhawan v. Attorney General, 523 F.3d 387 (3d Cir. May 2, 2008) ("The Courts of Appeals have transplanted that categorical approach into the INA because of obvious similarities between the two inquiries. The plain language of the INA, like 924(e), mandates that the alien was "convicted" of the prior offense designated in the INA as an "aggravated felony." It is not sufficient for the BIA to independently conclude that the alien "has committed" that prior offense. Therefore, the INA, like 924(e), requires a comparison of the prior conviction to the generic definition of the pertinent aggravated felony - in this case, 1101(a)(43)(M)(i) and (U). The rationale is not just a textual one, however. Courts have adopted categorical approaches for the INA also because the INA inquiry involves the same sorts of practical difficulties and fairness concerns underlying the Supreme Courts decisions in Taylor and Shepard. As the Second Circuit explained, "the BIA and reviewing courts are ill-suited to readjudicate the basis of prior criminal convictions." Dulal-Whiteway, 501 F.3d at 132. See also id. ("we decline the invitation to piece together an underlying attempt conviction by weighing evidence and drawing conclusions in a manner appropriate only for a criminal jury") (quoting Sui v. I.N.S., 250 F.3d 105, 119 (2nd Cir. 2001)); Shepard, 544 U.S. at 23 (a purpose of the categorical approach is the "avoidance of collateral trials"). As the Second Circuit also recognized, the categorical approach promotes basic precepts of fairness. Id. at 133 ("[I]f the guilty plea to a lesser, [non-removable] offense was the result of a plea bargain, it would seem unfair to [order removal] as if the defendant had pleaded guilty to [a removable offense]. [Taylor, 495 U.S.] at 601-02. By permitting the BIA to remove only those aliens who have actually or necessarily pleaded to the elements of a removable offense, our holding promotes the fair exercise of the removal power").")(Stapleton, J, dissenting).

Fourth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " DISCHARGING A FIREARM
United States v. Parral-Dominguez, ___ F.3d ___, 2015 WL 4479530 (4th Cir. Jul. 23, 2015) (North Carolina conviction for discharging firearm into occupied building, under N.C.G.S.A. 14"34.1(a) (discharge a firearm into a structure while it is occupied, when the defendant had reasonable grounds to believe that the building might be occupied by one or more persons), N.C.G.S.A. 14"34.1(a), was not crime of violence for purposes of imposing a 16-level sentence enhancement under U.S.S.G. 2L1.2(b)(1)(A)(ii), since the state offense does not require that an offender use, attempt to use, or threaten to use force against another person as required by this Guidelines provision); accord, United States v. Narvaez"Gomez, 489 F.3d 970, 976"77 (9th Cir. 2007) (ruling that discharging a firearm at an occupied dwelling under California law is categorically not a crime of violence under 2L1.2, because it may be committed with purely reckless conduct toward another person); United States v. Jaimes"Jaimes, 406 F.3d 845, 850"51 (holding that discharging a firearm into a vehicle or building under Wisconsin law is not a crime of violence under 2L1.2, because the offense contains no element consistent with the use-of-force clause and does not even require that an occupant actually be present); United States v. Alfaro, 408 F.3d 204, 209 (5th Cir. 2005) (finding that shooting into an occupied dwelling under Virginia law is not a crime of violence under 2L1.2, because a defendant could commit the crime merely by shooting a gun at a building that happens to be occupied without actually shooting, attempting to shoot, or threatening to shoot another person); compare United States v. Quezada-Luna, 439 F.3d 403 (7th Cir. Mar. 3, 2006) (Illinois conviction of discharging a firearm at a building he or she knows or reasonably should know is occupied constitutes an aggravated felony crime of violence, under 18 U.S.C. 16(a), (b), 8 U.S.C. 1101(a)(43)(F) (use, attempted use, or threatened use of physical force against the person or property of another or substantial risk of it) (emphasis supplied), since discharging a firearm at the structure alone qualifies as a crime of violence against property); but see Jimenez-Gonzalez v. Ukase, 548 F.3d 557 (7th Cir. Nov. 21, 2008) (Indiana conviction of criminal recklessness did not qualify as crime of violence supporting aggravated felony-based removal).

AGGRAVATED FELONY - CRIME OF VIOLENCE - SENTENCING CONTEXT - COMMON SENSE VS. CATEGORICAL APPROACH
United States v. Mungia-Portillo, 484 F.3d 813, 816 (5th Cir. Apr. 17, 2007) ("In deciding whether a prior statute of conviction qualifies as a crime of violence, this court has alternatively employed (1) a "common sense approach," defining the offense according to its "ordinary, contemporary, [and] common meaning," or (2) a "categorical approach," defining the offense according to a "generic, contemporary definition." Compare United States v. Izaguirre-Flores, 405 F.3d 270, 273-74 (5th Cir.2005), with United States v. Dominguez-Ochoa, 386 F.3d 639, 644 (5th Cir.2004); see also United States v. Mendoza-Sanchez, 456 F.3d 479, 481-82 (5th Cir.2006) (per curiam) (noting both approaches). Both approaches are rooted in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See Izaguirre-Flores, 405 F.3d at 275 n. 16 (quoting Dominguez-Ochoa's citation to Taylor); Dominguez-Ochoa, 386 F.3d at 644 (citing Taylor). Recently a panel of this court articulated that the methodology employed depends upon whether the prior offense constitutes a crime of violence (1) because it is an enumerated offense or (2) because it has as an element the use or attempted use of force. See Mendoza-Sanchez, 456 F.3d at 481-82. If it is the former, then the common sense approach is used; if it is the latter, then the categorical approach is used. See id.").

Fifth Circuit

AGGRAVATED FELONY " CONSPIRACY " OVERT ACT
United States v. Rodriguez-Escareno, 700 F.3d 751 (5th Cir. Nov. 1, 2012) (conspiracy for purposes of U.S.S.G. 2L1.2(b)(1)(A)(i), does not require an overt act, where the conviction falls within 21 U.S.C. 846 (attempt and conspiracy)).

AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " SEXUAL ASSAULT OF A CHILD
United States v. Rodriguez, 698 F.3d 220 (5th Cir. Oct. 3, 2012) (per curiam) (Texas conviction of sexual assault of a child, in violation of Penal Code 22.011(a)(2) (sexual intercourse with a child, defined as a person under the age of seventeen), is a crime of violence for illegal re-entry sentencing purposes under U.S.S.G. 2L1.2(b)(1)(A)(ii), as an enumerated offense); Calderon"Terrazas v. Ashcroft, 117 Fed.Appx. 903, 904"05 (5th Cir.2004) ([S]exual assault of a child under TEX. PENAL CODE 22.011[(a)(2)] qualifies as an aggravated felony under 8 U.S.C. 1101(a)(43)(A). (internal quotation marks omitted)).

AGGRAVATED FELONY " CRIME OF VIOLENCE " SOLICITATION TO COMMITT ASSAULT
United States v. Mendez-Casarez, 624 F.3d 233 (5th Cir. Oct. 15, 2010) (North Carolina conviction of solicitation to commit assault with a deadly weapon inflicting serious injury, in violation of the common-law definition of North Carolina law, see State v. Richardson, 100 N.C.App. 240, 395 S.E.2d 143, 147-48 (1990), constituted a crime of violence for illegal reentry sentencing purposes, because the list of predicate crimes of violence was not exhaustive; solicitation is sufficiently similar to conspiracy, which is one of the enumerated offenses in the list; the list was not subject to rule of lenity; the non-exhaustive interpretation did not render Guideline vague); United States v. Cornelio-Pena, 435 F.3d 1279, 1288 (10th Cir. 2006) (Arizona conviction for solicitation to commit burglary of a dwelling constituted a crime of violence for the purposes of U.S.S.G. 2L1.2(b)(1)(A)(ii)); United States v. Shumate, 329 F.3d 1026, 1031 (9th Cir.2003) (Oregon conviction for solicitation of delivery of cocaine constituted a controlled substance offense for the purposes of U.S.S.G. 4B1.1(a), which includes aiding and abetting, conspiring, and attempting to commit such an offense, U.S.S.G. 4B1.2 cmt. n. 1); United States v. Dolt, 27 F.3d 235, 240 (6th Cir.1994) (Florida conviction for solicitation to traffic in cocaine did not constitute a controlled substance offense for the purposes of U.S.S.G. 4B1.1(a)); see United States v. Liranzo, 944 F.2d 73, 79 (2d Cir.1991) (New York conviction for criminal facilitation of the sale of cocaine did not constitute a controlled substance offense for the purposes of U.S.S.G. 4B1.1(a)).

AGGRAVATED FELONY - CRIME OF VIOLENCE - AGGRAVATED ASSAULT
United States v. Guerrero-Robledo, 565 F.3d 940 (5th Cir. Apr. 20, 2009) (South Carolina conviction of assault and battery of a high and aggravated nature, a state common-law offense, is a crime of violence for purposes of sentencing enhancement, because: "A prior offense qualifies as a crime of violence because it is either an enumerated offense or it has as an element the use or attempted use of force," rejecting a defense argument that this offense had no mens rea requirement, because a South Carolina Supreme Court case held that "for a common law offense to constitute a crime, 'the act must be accompanied by a criminal intent, or by such negligence or indifference to duty or to consequences as is regarded by law as equivalent to criminal intent.'"), quoting State v. Ferguson, 395 S.E.2d 182, 183 (S.C. 1990)).

Because a different South Carolina Supreme Court case had defined the first element of ABHAN as "an unlawful act," the Fifth Circuit concluded that, based on Ferguson, "the first element of ABHAN--an unlawful act--must indicate criminal intent." Guerrero-Robledo, No. 07-41151, slip op. at 11. Thus, the Fifth Circuit concluded that ABHAN "falls within the common meaning of aggravated assault, rendering it a crime of violence."

AGGRAVATED FELONY - CRIME OF VIOLENCE - RAPE
United States v. Gomez-Gomez, 547 F.3d 242. (5th Cir. Oct. 21, 2008) (en banc) (California conviction of rape, under Penal Code 261(a)(2) (1991) [sexual intercourse "accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person of another."], where duress encompassed "a direct or implied threat of ... hardship, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities." Cal. Penal Code 261(b), committed using nonphysical force, qualifies as a "forcible sex offense" and thereby a "crime of violence" under U.S.S.G. 2L1.2(b)(1)(A), sufficient to support 16-level sentence enhancement for illegal reentry after deportation).

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSSESSION WITH INTENT TO DELIVER
United States v. Sandoval-Ruiz, 543 F.3d 733 (5th Cir. Sept. 26, 2008) (Illinois conviction of possession with intent to deliver, in violation of 720 ILCS 550/5, is a drug trafficking offense for illegal re-entry sentencing purposes).

AGGRAVATED FELONY - CRIME OF VIOLENCE - BURGLARY
United States v. Cardenas-Cardenas, 543 F.3d 731 (5th Cir. Sept. 25, 2008) (Texas conviction for burglary of a habitation, in violation of Texas Penal Code 30.02(a)(1), is a crime of violence for illegal re-entry purposes, since the offense is equivalent to "residential burglary."

AGGRAVATED FELONY - CRIME OF VIOLENCE - FORCIBLE SEXUAL CONTACT
United States v. Rosas-Pulido , 526 F.3d 829 (5th Cir. May 2, 2008) (Minnesota conviction for unlawful sexual contact, in violation of M.S.A. 609.345(1)(c), punishing use of "force or coercion to accomplish" sexual contact is not a "forcible" sex offense for illegal re-entry sentencing purposes as the minimum conduct punishable under the statute includes a 14 year old giving a nipple twister to a classmate, an offense that does not involve forcible compulsion), citing In Re DLK, 381 N.W.2d 435, 436 (Minn. 1986) (nipple twister case).

AGGRAVATED FELONY - STATUTORY INTERPRETATION - STATUTE DEFINING "SEXUAL ABUSE OF A MINOR" HAS SAME MEANING IN IMMIGRATION AS CRIMINAL SENTENCE CONTEXT
United States v. Najera-Najera, 519 F.3d 509, 512 n.2 (5th Cir. Mar. 7, 2008) (the term "sexual abuse of a minor" has the same meaning in the aggravated felony context as in the illegal re-entry sentencing context).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR DEFINTION
United States v. Najera-Najera, 519 F.3d 509, 512 n.2 (5th Cir. Mar. 7, 2008) (the term "sexual abuse of a minor" has the same meaning in the aggravated felony context as in the illegal re-entry sentencing context).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT WITH INTENT TO COMMIT A FELONY
United States v. Rojas-Gutierrez, 510 F.3d 545 (5th Cir. Dec. 13, 2007) (California conviction of assault with intent to commit certain enumerated felonies, including mayhem, rape, sodomy and oral copulation, in violation of Penal Code 220(a), constituted a "crime of violence" for illegal re-entry sentencing purposes, since the ordinary, contemporary, and common meaning of aggravated assault includes "assault with intent to commit a felony.").

AGGRAVATED FELONY - CRIME OF VIOLENCE - BURGLARY
United States v. Carbajal-Diaz, 508 F.3d 804 (5th Cir. Nov. 26, 2007) (Missouri conviction for burglary, in violation of Mo. Ann. Stat. 569.160, is a crime of violence for illegal re-entry sentencing purposes where the indictment shows that the offense involved residential burglary, an offense enumerated as a crime of violence.)

ILLEGAL REENTRY SENTENCING
United States v. Carbajal-Diaz, 508 F.3d 804 (5th Cir. Nov. 26, 2007) (drawing a distinction between the "categorical analysis" applied when determining whether a conviction requires "use of force" for first prong of illegal re-entry sentencing definition of "crime of violence" and the "common sense approach" applied when examining whether an offense falls within one of the offenses enumerated in the second prong.)

AGGRAVATED FELONY - BURGLARY - CRIME OF VIOLENCE
United States v. Castillo-Morales, 507 F.3d 873 (5th Cir. Nov. 8, 2007) (illegal reentry sentence is affirmed where there was no error in a 16-level offense enhancement, since relevant Florida court documents indicated that defendant committed the "crime of violence" of "burglary of a dwelling," as enumerated in U.S.S.G. 2L1.2).

SENTENCING CONTEXT - DRUG TRAFFICKING - POSSESSION
United States v. Gutierrez-Bautista, __ F.3d __, 2007 WL 2153214 (5th Cir. Jul. 27, 2007) (Georgia conviction for violation of Ga.Code Ann. 16-13-31(e) (1999), punishing any "person who knowingly sells, manufactures, delivers, or brings into this state or has possession of 28 grams or more of methamphetamine" is categorically a "drug trafficking" offense for illegal re-entry sentencing purposes, because Georgias sentencing laws impute an intent to distribute to a conviction for possession of 28 grams or more of methamphetamine.) Note: while the appellant raised the issue of whether the prior offenses must be found by a jury to convict of illegal re-entry, the appellant apparently did not raise the issue of whether Georgias sentencing scheme could alter the nature of the offense (from simple possession to drug trafficking), absent as specific finding by a jury.

AGGRAVATED FELONY - CRIME OF VIOLENCE - RAPE
United States v. Gomez-Gomez, 493 F.3d 562 (5th Cir. Jul. 20, 2007) (California conviction for forcible rape, in violation of California Penal Code 261 (1990), is not necessarily a crime of violence for illegal re-entry sentencing purposes, since "[a] subsection of that statute defines duress as a direct or implied threat of force, violence, danger, hardship, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. Id. at 261(b) (emphasis added). It adds that [t]he total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress. Id.).

Note: The court here tries to distinguish United States v. Beliew, 492 F.3d 314 (5th Cir. Jul. 5, 2007) (Louisiana conviction for child molestation, in violation of L.S.A.-R.S. 14:81.2(A), is a crime of violence for Armed Career Criminal Act purposes, as a "forcible sex offense" since it requires as an element, "force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or ... use of influence by virtue of a position of control or supervision over the juvenile"; finding that use of influence over juvenile was "constructive" use of force.), and suggests that Beliew may be contrary to established Fifth Circuit precedent.

AGGRAVATED FELONY - CRIME OF VIOLENCE - CHILD MOLESTATION
United States v. Beliew, 492 F.3d 314 (5th Cir. Jul. 5, 2007) (Louisiana conviction for child molestation, in violation of L.S.A.-R.S. 14:81.2(A), is a crime of violence for Armed Career Criminal Act purposes, as a "forcible sex offense" since it requires as an element, "force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or ... use of influence by virtue of a position of control or supervision over the juvenile"; finding that use of influence over juvenile was "constructive" use of force.)

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT
United States v. Mungia-Portillo, 484 F.3d 813, 816 (5th Cir. Apr. 17, 2007) (Tennessee conviction for aggravated assault, in violation of Tennessee Code 39-13-102, is a "crime of violence" for illegal re-entry sentencing purposes, applying the "common sense" analysis).

CATEGORICAL ANALYSIS " FEDERAL SENTENCING GUIDELINES COMMENTARY IS BINDING ON THE COURTS IN CRIMINAL CASES
United States v. Rayo-Valdez, 302 F.3d 314, 318 n.5 (5th Cir. 2002) (guidelines commentary is binding as though it were in the guidelines themselves).

Sixth Circuit

AGGRAVATED FELONY " DRUG TRAFFICKING OFFENSES " SAME INTERPRETATION IN BOTH IMMIGRATION AND CRIMINAL SENTENCING CONTEXTS
Garcia v. Holder, ___ F.3d ___, 2011 WL 1105591 (6th Cir. Mar. 28, 2011) (this court has declined to interpret a drug-based aggravated felony differently in immigration and criminal-sentencing contexts.); see Rashid v. Mukasey, 531 F.3d 438, 442 (6th Cir. 2008); United States v. Palacios-Suarez, 418 F.3d 692, 697 (6th Cir. 2005).

Eighth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " IMMIGRATION CRIME OF VIOLENCE DEFINITION AND ACCA VIOLENT FELONY DEFINITION ARE INTERCHANGEABLE
Roberts v. Holder, 745 F.3d 928, 930 (8th Cir. Mar. 20, 2014) (We have held that the term crime of violence found in 4B1.2(a) of the United States Sentencing Guidelines is interchangeable with the term violent felony found in the Armed Career Criminals Act (ACCA), in 18 U.S.C. 924(e)(2)(B). United States v. Williams, 537 F.3d 969, 971 (8th Cir.2008) (The present case involves the term crime of violence whereas the Supreme Court in Begay [ v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008),] interpreted the term violent felony. We have never recognized a distinction between the two.). Both terms are virtually identical to 16.).

Ninth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " SEXUAL CONTACT
United States v. Mendez-Sosa, 778 F.3d 1117 (9th Cir. Mar. 2, 2015) (New Jersey conviction of criminal sexual contact, in violation of NJS 2C:14-3(b), is a crime of violence for illegal reentry sentencing purposes, as a forcible sex offense; district court properly applied divisible statute analysis to determine defendant was convicted of subsection that involved absence of consent).

AGGRAVATED FELONY " CRIME OF VIOLENCE " STATUTORY RAPE
United States v. Gallegos-Galindo, 704 F.3d 1269 (9th Cir. Jan. 17, 2013) (Washington conviction for third-degree rape, in violation of RCW 9A.44.060(1)(a), qualified as a "forcible sex offense" supporting a 16-level crime-of-violence enhancement under the Sentencing Guidelines, U.S.S.G. 2L1.2(b)(1)(A)). Note: RCW 9A.44.060(1)(A) punishes any rape that does not constitute first or second degree rape. The statute does not contain any further elements. Without conducting any analysis of Washington case law to determine whether any judicially identified elements exist, and thus whether the statute could be considered divisible, the Court found it could skip the categorical analysis, and apply directly the modified categorical analysis. This allowed the court to conclude the offense was a forcible sex offense which includes any non-consensual sexual intercourse, because the factual basis specified that no consent had been given. The court did not cite Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. Aug. 11, 2011).

IMMIGRATION OFFENSES " ILLEGAL REENTRY " SENTENCE " RAPE OF A CHILD QUALIFIES AS STATUTORY RAPE AN ENUMERATED CRIME OF VIOLENCE UNDER THE GUIDELINES
United States v. Zamorano-Ponce, 699 F.3d 1117 (9th Cir. Nov. 6, 2012) (Washington conviction of "rape of a child in the third degree," in violation of the Revised Code of Washington 9A.44.079, categorically qualifies as "statutory rape," which is enumerated as a crime of violence for the purposes of a 16-level sentencing enhancement under U.S.S.G. 2L1.2(b)(1)(A)(ii) for the crime of illegal reentry after deportation; statutory rape for this purpose includes, at least, unlawful sexual intercourse with a person under the age of 16 where the actor is four years older than the victim).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ROBBERY
United States v. Flores-Mejia, 687 F.3d 1213 (9th Cir. Aug. 9, 2012) (California conviction for violation of California Penal Code 211, robbery, is a categorical crime of violence under the "enumerated offenses" definition in U.S.S.G. 2L1.2 for illegal re-entry sentencing purposes).

AGGRAVATED FELONY " FELONY PETTY THEFT " THEFT OFFENSE
United States v. Rivera, 658 F.3d 1073 (9th Cir. Sept. 23, 2011) (California felony petty theft convictions under Penal Code 484(a) and 666 constituted aggravated felony theft offenses, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), for illegal re-entry sentencing purposes); declining to follow United States v. Corona"Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc); following United States v. Rodriquez, 553 U.S. 377, 382-386 (2008) (an increased, recidivist sentence is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because [it is] a repetitive one so the sentence imposed for the sentence enhancement does relate to the commission of the repeat offense and is clearly part of the sentence prescribed by law; therefore a recidivist sentence constitutes a sentence imposed for determining whether a prior conviction qualifies as a predicate offense).

AGGRAVATED FELONY " CRIME OF VIOLENCE " MODIFIED CATEGORICAL APPROACH
United States v. Gonzalez-Aparicio, ___ F.3d ___, 2011 WL 2207322 (9th Cir. Jun. 8, 2011) (Arizona conviction for sexual conduct with a minor, in violation of Arizona Revised Statutes 13"1405, constituted an enumerated crime of violence offense (statuory rape) for illegal re-entry sentencing purposes, under the modified categorical approach). NOTE This decision notes tension between statutory rape/sexual abuse of a minor cases in the sentencing and immigration contexts.

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR
United States v. Castro, 599 F.3d 1050, 1054 n.1 (9th Cir. Mar. 26, 2010) (defining the term "sexual abuse of a minor" in the immigration and the illegal re-entry sentencing context involves the same analysis).

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 U.S.C. 16(a) - APPLICABILITY OF GUIDELINES DECISIONS - THE FULL SCOPE OF THE GUIDELINES DEFINITION OF CRIME OF VIOLENCE IS INCLUDED WITHIN THE BOUNDARIES OF THE CRIME OF VIOLENCE DEFINITION CONTAINED IN 18 U.S.C. 16(a)
United States v. Grajeda, 581 F.3d 1186, 1191 n.4 (9th Cir. Sept. 21, 2009) (decisions interpreting the "crime of violence" definition contained in the "elements" prong of U.S.S.G. 2L1.2(b)(1)(A)(ii), are fully applicable to immigration cases turning on the practically identical "crime of violence" definition contained in 18 U.S.C. 16(a), which is used to define "crime of violence" aggravated felonies under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F): "Like the element prong in 2L1.2, the crime of violence definition in 16(a) includes any "offense that has as an element the use, attempted use, or threatened use of physical force." 18 U.S.C. 16(a); U.S.S.G. 2L1.2, cmt. n. 1(b)(iii) (same). The sole difference is that the 16(a) definition is inclusive of force "against the person or property of another," whereas the Guidelines definition covers only force "against the person of another." Id. (emphasis added). Section 16(b) offers an additional definition, based on the "risk that physical force ... may be used" that is not included in the 2L1.2 definition. 18 U.S.C. 16(b) (defining as a crime of violence "any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense").") (emphasis in original); see United States v. Narvaez-Gomez, 489 F.3d 970, 976 (9th Cir. 2007).

AGGRAVATED FELONY - CRIME OF VIOLENCE - KIDNAPPING
Delgado-Hernandez v. Holder, 581 F.3d 1059 (9th Cir. Sept. 9, 2009) (California conviction of kidnapping, in violation of California Penal Code 207(a), constitutes a crime of violence under 18 U.S.C. 16(b), and is thus an aggravated felony under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F); kidnapping inherently involves a direct confrontation with a victim who is forced or frightened into being moved involuntarily, which creates a substantial risk of the use of force). NOTE: This decision seems to ignore a form of kidnapping, explicit in the statute, that would not involve a risk of force: "For purposes of those types of kidnapping requiring force, the amount of force required to kidnap a resisting infant or child is the amount of physical force required to take and carry the child away a substantial distance for an illegal purpose or intent." California Penal Code 207(e).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ROBBERY
United States v. Saavedra-Velazquez, 578 F.3d 1103 (9th Cir. Aug. 21, 2009) (California conviction for attempted robbery, in violation of Penal Code 211 is categorically a "robbery" and thus a crime of violence for illegal re-entry sentencing purposes).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ROBBERY
United States v. Rivera-Ramos, 578 F.3d 1111 (9th Cir. Aug. 21, 2009) (New York conviction for attempted robbery, in violation of N.Y. Penal Law 160.15(3) is categorically a "robbery" and thus a crime of violence for illegal re-entry sentencing purposes).

AGGRAVATED FELONY - CRIME OF VIOLENCE
United States v. Harris, 572 F.3d 1065 (9th Cir. Jul. 24, 2009) (Nevada convictions for robbery and attempted robbery, in violation of Nevada Revised Statutes, 200.380 categorically qualified as "crimes of violence" under U.S.S.G. 4B1.2, for purposes of aggravated federal sentencing under the ACCA, since any offense punishable under that statute that does not qualify as a "robbery," does qualify as an "extortion."), following United States v. Becerril-Lopez, 541 F.3d 881, 892 (9th Cir.2008).

NOTE: In the aggravated felony context, this case may support an argument that the Nevada statute is not necessary a crime of violence, since "[t]he degree of force used is immaterial if it is used to compel acquiescence to the taking of or escaping with the property" N.R.S. 200.380.

AGGRAVATED FELONY CRIME OF VIOLENCE- ASSAULT WITH FIREARM- ILLEGAL RE-ENTRY CONTEXT
United States v. Diaz-Argueta, 564 F.3d 1047 (9th Cir. Apr. 24, 2009) (California conviction of assault with a firearm, under Penal Code 245(a)(2), with probation on condition of serving a sentence less than one year, can constitute a "crime of violence under U.S.S.G. 2L1.2(b)(1)(A)(ii), and thus support a 16-level sentence enhancement for illegal reentry, even where it does not qualify as a crime of violence aggravated felony because there is no sentence imposed of one year or more); citing United States v. Pimentel-Flores, 339 F.3d 959, 960-61 (9th Cir.2003).

AGGRAVATED FELONY - CRIME OF VIOLENCE - AGGRAVATED FELONY VS. SENTENCING CONTEXT
United States v. Gomez-Leon, 545 F.3d 777 (9th Cir. Sept. 24, 2008). This case has a detailed discussion of the differences between the different statutes and methods of defining "crime of violence."

AGGRAVATED FELONY - CRIME OF VIOLENCE - GUIDELINES DEFINITIONS DIFFER FROM IMMIGRATION DEFINITION AND FROM EACH OTHER
United States v. Becerril-Lopez, 528 F.3d 1133 (9th Cir. Jun.12, 2008) (Guidelines definitions of crime of violence differ from immigration definition and from each other); United States v. Beltran-Mungia, 489 F.3d 1042, 1049 (9th Cir. 2007) (a state crime that satisfies the "crime of violence" definition in USSG 4B1.2 does not automatically satisfy the definition in 2L1.2, since 4B1.2 has "materially different" wording from 2L1.2; while 4B1.2 contains a catch-all for crimes presenting a "serious potential risk of physical injury," 2L1.2 covers only those crimes that involve "the use, attempted use, or threatened use of physical force against the person of another.").

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION
United States v. Figueroa-Ocampo, __ F.3d __, 2007 WL 2104787 (9th Cir. July 24, 2007) (under the Supreme Court's recent decision in Lopez v. Gonzales, 127 S. Ct. 625 (2006), simple possession cannot be treated as an aggravated felony for sentencing purposes unless possession of the particular drug would be a felony if prosecuted under federal law).

AGGRAVATED FELONY - CRIME OF VIOLENCE - SEXUAL ABUSE
United States v. Beltran-Munguia, 489 F.3d 1042 (9th Cir. Jun. 7, 2007) (Oregon conviction of sexual abuse in the second degree, in violation of Oregon Revised Statute 163.425, did not qualify as a "crime of violence," for purposes of 16-level enhancement under U.S.S.G. 2L1.2(b)(1)(A)(ii), of his sentence for illegal reentry after deportation both because the state statute does not make force - be it used, attempted, or threatened - an element of the crime, and because the crime does not constitute a "forcible sex offense" within the meaning of the applicable guideline).

AGGRAVATED FELONY - IMMIGRATION V. SENTENCING CONTEXT
United States v. Sandoval-Sandoval, ___ F.3d ___ (9th Cir. May 23, 2007) (per curiam) (district court at sentencing properly relied on California abstract of judgment, for purpose of imposing a 16-level enhancement pursuant to U.S.S.G. 2L1.2(b)(1)(A) in reliance on a factual finding that Defendant had been convicted earlier of "a drug trafficking offense for which the sentence imposed exceeded 13 months," since the document unequivocally contained the information needed), distinguishing United States v. Navidad-Marcos, 367 F.3d 903 (9th Cir. 2004) (district courts may not rely on an abstract of judgment to determine the nature of a prior conviction for purposes of analysis under Taylor v. United States, 495 U.S. 575 (1990), since the documents contain insufficient information for that purpose; case did not hold court may not rely on abstracts at all), and following United States v. Valle-Montalbo, 474 F.3d 1197, 1201-02 (9th Cir. 2007) (district court properly relied on abstract of judgment, in combination with the charging document, for the purpose of determining whether a defendant had a qualifying conviction under U.S.S.G. 2L1.2(b)(1)(A).).

United States v. Sandoval-Sandoval, 487 F.3d 1278 (9th Cir. May 23, 2007) (per curiam) (district court at sentencing properly relied on California abstract of judgment, for purpose of imposing a 16-level enhancement pursuant to U.S.S.G. 2L1.2(b)(1)(A) in reliance on a factual finding that Defendant had been convicted earlier of "a drug trafficking offense for which the sentence imposed exceeded 13 months," since the document unequivocally contained the information needed), distinguishing United States v. Navidad-Marcos, 367 F.3d 903 (9th Cir. 2004) (district courts may not rely on an abstract of judgment to determine the nature of a prior conviction for purposes of analysis under Taylor v. United States, 495 U.S. 575 (1990), since the documents contain insufficient information for that purpose; case did not hold court may not rely on abstracts at all), and following United States v. Valle-Montalbo, 474 F.3d 1197, 1201-02 (9th Cir. 2007) (district court properly relied on abstract of judgment, in combination with the charging document, for the purpose of determining whether a defendant had a qualifying conviction under U.S.S.G. 2L1.2(b)(1)(A).).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT
United States v. Carson, 486 F.3d 618 (9th Cir. May 15, 2007) (Washington conviction of second-degree assault, in violation of RCW 9A.36.021(1)(f) [ "[k]nowing[ ] inflict[ion of] bodily harm which by design causes such pain or agony as to be the equivalent of that produced by torture."] is a "crime of violence" for purposes of the Sentencing Guidelines career offender enhancement provision, U.S.S.G. 4B1.1).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT IN THIRD DEGREE
United States v. Rendon-Duarte, 482 F.3d 1080, 1085 (9th Cir. March 21, 2007) (Alaska conviction of Assault in the Third Degree, in violation of Alaska Statute 11.41.220(a)(1) ("recklessly (A) places another person in fear of imminent serious physical injury by means of a dangerous instrument."), constituted a crime of violence under U.S.S.G. 4B1.2(a)(2)(2005) ("any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that . . . (2) ... involves conduct that presents a serious potential risk of physical injury to another."), for purposes of enhancing sentence for a federal conviction for being a felon in possession of firearms, in violation of in violation of 18 U.S.C. 922(g)(1) & 924(a)(2): "Whether the conduct was reckless or not has no bearing on the applicability of subsection (2) of the Guidelines.").

Tenth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - KIDNAPPING
United States v. Juarez-Galvan, 572 F.3d 1156 (10th Cir. Jul. 20, 2009) (California conviction of kidnapping, in violation of Penal Code 207(a), constituted a crime of violence for illegal reentry sentencing purposes, because kidnapping is an offense enumerated under U.S.S.G. 2L1.2(b)(1)(A)(ii)).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ROBBERY
United States v. Juarez-Galvan, 572 F.3d 1156 (10th Cir. Jul.20, 2009) (California conviction of robbery, in violation of Penal Code 211, constituted a crime of violence for illegal reentry sentencing purposes, because robbery is an offense enumerated under U.S.S.G. 2L1.2(b)(1)(A)(ii)).

AGGRAVATED FELONY - CRIME OF VIOLENCE - SEXUAL ASSAULT
United States v. Yanez-Rodriguez, 555 F.3d 931 (10th Cir. Feb. 10, 2009) (Kansas conviction for violation of Kan. Stat. Ann. 21-3517 (1988) ("unlawful, intentional touching of the person of another who is not the spouse of the offender and who does not consent thereto, with the intent to arouse or satisfy the sexual desires of the offender or another") is a "forcible sex offense" for illegal re-entry sentencing purposes, even though the statute does not require that the actor used force), disagreeing with United States v. Meraz-Enriquez, 442 F.3d 331 (5th Cir.2006).

AGGRAVATED FELONY - CRIME OF VIOLENCE - SENTENCE GUIDELINES DEFINITIONS - DIFFERENCE BETWEEN DEFINITION UNDER USSG 2L1.2 (narrower) AND USSG 4B1.1 (broader)
United States v. Ruiz-Rodriguez, 494 F.3d 1273 (10th Cir. Aug. 1, 2007) ("Although we previously have held that a conviction for false imprisonment under some state definitions can qualify as a crime of violence, we have done so only for a different type of sentence enhancement that does not resolve the issue in this case. U.S.S.G. 2L1.2 has a more narrow definition of "crime of violence" than the enhancement for career offenders, see 18 U.S.C. 924(e) and U.S.S.G. 4B1.1, which defines a crime of violence in terms of a crime that has an element of force or "involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. 2L1.2 does not provide for the latter alternative definition. Therefore, although we have held that false imprisonment can qualify as a crime of violence under U.S.S.G. 4B1.1, that determination has hinged on our determination that the crime necessarily entails "a substantial risk of physical force being used" because "it involves non-consensual acts on another person." Zamora, 222 F.3d at 764. In contrast, our current inquiry is limited to whether false imprisonment in Nebraska "has as an element the use, attempted use, or threatened use of physical force against the person of another." U.S.S.G. 2L1.2 cmt. n. 1(B)(iii).").

Eleventh Circuit

ILLEGAL REENTRY - SENTENCE - CRIME OF VIOLENCE
United States v. Gonzalez, F.3d 1319 (11th Cir. Dec. 12, 2008) (16 level increase on sentencing for illegal re-entry warranted because robbery conviction was a crime of violence for sentencing purposes, even though it was not an "aggravated felony" crime of violence).

AGGRAVATED FELONY - CRIME OF VIOLENCE - "CRIME OF VIOLENCE" DECISIONS UNDER TWO DIFFERENT GUIDELINES DEFINITIONS AND FEDERAL FIREARMS POSSESSION STATUTE ARE INDISTINGUISHABLE
United States v. Llanos-Agostadero, 486 F.3d 1194 (11th Cir. May 15, 2007) (per curiam) ("In our view, the offenses at issue in Glover [USSG 4B1.2(a)] and Griffith [18 U.S.C. 922(g)(9)] cannot be meaningfully distinguished from the offense at issue in the instant case, at least with regards to determining whether the offense is a "crime of violence" under U.S.S.G. 2L1.2(b)(1).").

RECORD OF CONVICTION - SENTENCING CONTEXT
United States v. Llanos-Agostadero, _486 F.3d 1194 (11th Cir. May 15, 2007) (per curiam) ("Generally, in determining whether a prior conviction is a qualifying offense for enhancement purposes, we apply a "categorical" approach-that is, we look no further than the fact of conviction and the statutory definition of the prior offense. Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 2159-60, 109 L.Ed.2d 607 (1990); United States v. Aguilar-Ortiz, 450 F.3d 1271, 1273 (11th Cir.2006). But where the judgment of conviction and statute are ambiguous, "we remand for the district judge to look at the facts underlying a state conviction." Aguilar-Ortiz, 450 F.3d at 1273. In examining the facts underlying a prior conviction, the district court is generally limited to relying only on the "charging document[s], written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented." Id.; Shepard v. United States, 544 U.S. 13, 19-26 125 S.Ct. 1254, 1259-63, 161 L.Ed.2d 205 (2005).").

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT - SIMPLE BATTERY CONSTITUTES A CRIME OF DOMESTIC VIOLENCE UNDER FEDERAL CRIMINAL FIREARMS STATUTE
United States v. Griffith, 455 F.3d 1339, 1340-1345 (11th Cir. 2006) (Georgia conviction of simple battery, under Ga.Code Ann. 16-5-23(a)(1) (which occurs when a person "[i]ntentionally makes physical contact of an insulting or provoking nature with the person of another"), constitutes a "crime of domestic violence" under 18 U.S.C. 921(a)(33)(A)(ii), 922(g)(9), which defines a "crime of domestic violence" to include, inter alia, any offense that "has, as an element, the use or attempted use of physical force.").

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT - SIMPLE BATTERY ON POLICE OFFICER CONSTITUTES CRIME OF VIOLENCE UNDER GUIDELINES
United States v. Glover, 431 F.3d 744, 747, 749 (11th Cir. 2005) (Florida conviction of simple battery on a law enforcement officer, in violation of Fla. Stat. 784.03 and 784.07, is a crime of violence under U.S.S.G. 4B1.2(a)(1) [inter alia, any offense that "has as an element the use, attempted use, or threatened use of physical force against the person of another."]).

DC Circuit

AGGRAVATED FELONY - SENTENCING GUIDELINES - CRIME OF VIOLENCE
United States v. Ventura, 565 F.3d 870 (D.C. Cir. May 15, 2009) (Virginia conviction of felonious abduction in violation of Virginia Code 18.2-47, which prohibits unlawfully seizing or detaining another person, did not constitute a "crime of violence," triggering a 16-level sentence enhancement under USSG 2L1.2(b)(1)(A)(ii), but only a "aggravated felony," justifying an eight-level increase, under USSG 2L1.2(b)(1)(C), because using the categorical approach, it did not fall within the generic definition of kidnapping, one of the offenses specifically listed as a "crime of violence" under the Guidelines; "a substantial majority of jurisdictions-forty-four out of fifty-two-require some additional element of intent or severity. Virginia's abduction statute encompasses both generic kidnapping and less serious offenses, leaving it to other statutes and the discretion of sentencing judges to tailor punishment based on the severity of the offense."); accord, United States v. Gonzalez-Perez, 472 F.3d 1158, 1161 (9th Cir. 2007) (generic kidnapping requires a nefarious purpose); contra, United States v. Iniguez-Barba, 485 F.3d 790, 791 (5th Cir. 2007) (rejecting requirement that kidnapping have a nefarious purpose in addition to an act of restraining, removing, or confining another; and (2) an unlawful means of accomplishing that act); United States v. Gonzalez-Ramirez, 477 F.3d 310, 318 (5th Cir. 2007) (same).

Other

AGGRAVATED FELONY - SENTENCING V. IMMIGRATION
Attorney General Opinion, Opinions from Office of Legal Counsel, Vol. 31, May 17, 2007 ("A "misdemeanor crime of domestic violence" under 18 U.S.C. 922(g)(9) is limited to those offenses of which the use or attempted use of physical force or the threatened use of a deadly weapon is an element that is, a factual predicate specified by law and required to support a conviction. Where the legal definition of the crime at issue contains a disjunctive element (which requires proof of only one of multiple specified factual predicates), only one subpart of which requires the use or attempted use of physical force or the threatened use of a deadly weapon, application of the prohibition in section 922(g)(9) will turn on whether the fact finder found that the subpart meeting the "misdemeanor crime of domestic violence" definition had been proved (or whether the defendant pleaded guilty to that subpart). The answer to that question may be gleaned from the record of conviction or the supporting record of proceedings in the court of conviction. Police reports cannot answer that question. The above interpretations also govern background checks by the Federal Bureau of Investigation for firearms transfers under the National Instant Background Check System, but additional materials, including police reports, may be relied upon by the NICS for certain limited purposes.")

CRIM DEF - UNITED STATES SENTENCE GUIDELINES MANUAL ONLINE
http://www.ussc.gov/2007guid/TABCON07.html