Criminal Defense of Immigrants

The force necessary to constitute a crime of violence must be present in the essential elements of the statute of conviction, rather than as a fact present in the underlying circumstances of the case.[409]  In Leocal v. Ashcroft,[410] the United States Supreme Court reaffirmed the necessity to analyze the elements of the offense of conviction, rather than to look to the facts of the conduct involved.[411]  The federal courts agree.[412] See Chapter 16, supra.

                If the elements of the statute of conviction do not require the use of force, then a conviction of violating the statute cannot be an aggravated felony.[413]   This is true even if the state classifies the offense as an “aggravated assault.”[414]

[409] See, e.g., United States v. Gonzalez-Chavez, 432 F.3d 334 (5th Cir. Nov. 30, 2005) (aggravated battery under § 784.045 of the Florida Statutes is a divisible statute, as the offense may be committed by any assault on a pregnant woman, including spitting, which does not involve the use, attempted use, or threatened use of force, and therefore may not be an aggravated felony crime of violence for sentencing purposes).

[410] Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377 (Nov. 9, 2004).

[411] Id. at 381.

[412] See, e.g., Valencia v. Gonzales, 439 F.3d 1046 (9th Cir. Mar. 6, 2006) (California conviction of engaging in unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator under Penal Code § 261.5(c) is not a crime of violence under 18 U.S.C. § 16(a), since it does not have force as an element); United States v. Jaimes-Jaimes, 406 F.3d 845 (7th Cir. May 4, 2005) (Wisconsin conviction for discharging a firearm into a vehicle or building, in violation of W.S.A. § 941.20(2)(a), was not a conviction for a “crime of violence” for illegal re-entry sentencing purposes, since the elements of the offense of conviction did not require that the trier of fact conclude that defendant used or threatened use of physical force against the person of another).

[413] See, e.g., United States v. Meraz-Enriquez, 442 F.3d 331 (5th Cir. Mar. 3, 2006) (Kansas conviction of attempted sexual battery, in violation of Kan. Stat. Ann. § 21- 3518, which punishes a sexual touching of a person who is too intoxicated to be able to give consent to the touching, is not a crime of violence for illegal re-entry sentencing purposes because the offense does not require the use of force); United States v. Hernandez-Hernandez, 431 F.3d 1212 (9th Cir. Dec. 16, 2005) (California conviction of felony false imprisonment, in violation of Penal Code § 236, constitutes a divisible statute, encompassing some offenses that constitute crimes of violence within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii), and some that do not; if defendant was or might have been convicted of committing false imprisonment by fraud or deceit, the conviction would not fall within the crime of violence portion of the divisible statute, for purposes of assessing a 16-level increase in base offense level for illegal re-entry); Szucz-Toldy v. Gonzalez, 400 F.3d 978 (7th Cir. Mar. 11, 2005) (Illinois conviction for “harassment by telephone” under 720 ILCS § 135/1-1(2), prohibiting “making a telephone call, whether or not conversation ensues, with intent to abuse, threaten or harass any person at the called number,” is not an aggravated felony crime of violence for immigration purposes because it is not necessary to prove the use or threatened use of physical force to sustain a conviction under the statute).

[414] See, e.g., United States v. Fierro-Reyna, 466 F.3d 324 (5th Cir. Sept. 28, 2006) (Texas conviction from 1979 for aggravated assault on a police officer, in violation of Penal Code § 22.02(a)(2) (1974) [punishing simple assault on a police officer] is not a “crime of violence” for illegal re-entry sentencing purposes, since simple assault does not necessarily require use of force; state classification of assault as ‘aggravated’ because it is committed against a police officer is irrelevant).