Criminal Defense of Immigrants

 

(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).