Criminal Defense of Immigrants

(A)  Use of Force.  For purposes of 18 U.S.C. § 16(a), the courts draw a distinction between an offense that requires as an element that the actor caused some sort of injury or that injury resulted as a consequence of the act, on the one hand, and an offense in which the actor actively used force in the commission of the offense.  This distinction is well recognized.[416]  In fact, the United States Supreme Court stated in Leocal that:

The critical aspect of § 16(a) is that a crime of violence is one involving the “use ... of physical force against the person or property of another.”  (Emphasis added.)  As we said in a similar context in Bailey, “use” requires active employment.  [Bailey v. United States, 516 U.S. 137, 144 (Dec. 6, 1995)]  While one may, in theory, actively employ something in an accidental manner, it is much less natural to say that a person actively employs physical force against another person by accident.  Thus, a person would “use ... physical force against” another when pushing him; however, we would not ordinarily say a person “use[s] ... physical force against” another by stumbling and falling into him.[417]

In Bailey, the Court found that “[t]he word ‘use’ in the statute must be given its ‘ordinary or natural’ meaning, a meaning variously defined as ‘[t]o convert to one’s service,’ ‘to employ,’ ‘to avail oneself of,’ and ‘to carry out a purpose or action by means of.’ [citing Webster’s New International Dictionary of English Language 2806 (2d ed.1949) and Black’s Law Dictionary 1541 (6th ed.1990)]. These various definitions of ‘use’ imply action and implementation.”[418]

                Therefore, an offense cannot be considered a crime of violence where it may be committed through an act or omission.  If an injury or even death may have resulted from a failure to act, then courts cannot show that the defendant used force in committing the offense.[419]

This same analysis has been applied in a somewhat analogous federal sentencing context.[420]  See also § 19.22, supra.  One definition of crime of violence used in the sentencing context, however, requires only that physical injury resulted, and does not require that force be used in the commission of the offense.[421]  Therefore, offenses falling within this definition of crime of violence do not necessarily fall within the aggravated felony definition of crime of violence.

[416] United States v. Perez-Vargas, 414 F.3d 1282 (10th Cir. July 15, 2005) (Colorado conviction for third-degree assault, which did not require use of force, did not constitute a “crime of violence,” for purposes of enhancement of a sentence for illegal re-entry, since the criminal statute has as an element causation of injury, rather than use of force: “In other words, Colorado’s statute looks to the consequences of the conduct, however applied, whereas the Guidelines look to the type of conduct that causes the injury.”); Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir. 2003) (Connecticut conviction of third-degree assault in violation of section 53a-61(a)(1) of the Connecticut General Statutes, which involves the intentional infliction of physical injury upon another, is not a crime of violence under 18 U.S.C. § 16(a), because use of force is not an element of the offense), overruling Matter of Martin, 23 I.& N. Dec. 491 (BIA 2002); Milbin v. Ashcroft, 293 F.Supp.2d 158 (D.Conn. Dec. 2, 2003) (Connecticut conviction under any subdivision of Conn. Gen. Stat. § 53a-61, which prohibits various ways of causing injury to a person, did not constitute a crime of violence under 18 U.S.C. § 16(a), because it does not have use of force as an element, and could be violated by guile, deception, or even deliberate omission).

[417] Leocal v. Ashcroft, 543 U.S. 1, 9, 125 S.Ct. 377, 382 (Nov. 9, 2004).

[418] Bailey v. United States, 516 U.S. 137, 145 (Dec. 6, 1995).

[419] Cf. Jobson v. Ashcroft, 326 F.3d 367 (2d Cir. Apr. 22, 2003) (New York conviction of manslaughter in the second degree, under N.Y.P.L. § 125.15(1), is a not crime of violence under 18 U.S.C. § 16(b), since the minimum criminal conduct required to violate the statute does not necessarily present a substantial risk that the defendant will intentionally use physical force against the person or property of another, because the scope of the law is broad; passive conduct or omissions alone are sufficient for conviction).

[420] United States v. Rodriquez-Rodriguez, 388 F.3d 466 (5th Cir. Oct. 15, 2004) (Texas conviction of violating Penal Code § 31.07(a), unauthorized use of a motor vehicle, is not a crime of violence for illegal re-entry sentencing purposes, since the statute does not require, as an element, the use of 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 a “crime of violence” supporting Sentencing Guidelines’ 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”).

[421] See United States v. Insaulgarat, 378 F.3d 456 (5th Cir. July 19, 2004) (Florida conviction of aggravated stalking [after being subject to a domestic violence protective order, “knowingly, willfully, maliciously, and repeatedly follows or harasses another person”], in violation of Florida Statute § 784.048(4) (1993), did not constitute a crime of violence within the meaning of U.S.S.G. § 4B1.1, for federal sentencing purposes, where harassment is defined as “engag[ing] in a course of conduct directed at a specific person that causes substantial emotional distress in such person . . . ,” under Fla. Stat. Ann. § 784.048(1)(a), because the aggravated stalking statute can be violated without the use or threatened use of physical force, and the additional information provided in the aggravated stalking indictment about the underlying injunction does not allege conduct which, by its nature, poses a serious potential risk of physical injury).