(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).

AGGRAVATED FELONY - CRIME OF VIOLENCE
United States v. Mosley, 575 F.3d 603 (6th Cir. Jul. 23, 2009) (Michigan conviction of resisting and obstructing a police officer, under Mich. Comp. Laws 750.81d(1) ("assaults, batters, wounds, resists, obstructs, opposes, or endangers a person whom the individual knows or has reason to know is performing his or her duties."), is not a crime of violence for purposes of the Armed Career Criminal Act, since obstructing does not contain an element of force or create a substantial risk that force will be used in committing the offense).

BIA

AGGRAVATED FELONY " CRIME OF VIOLENCE " SODOMY BY FORCE
Matter of Chavez-Alvarez, 26 I. & N. Dec. 274 (BIA Mar. 14, 2014) (military crime of sodomy by force in violation of Uniform Code of Military Justice, article 125, 10 U.S.C. 925, and the Punitive Articles of the MCM relating to sodomy, is a crime of violence under 18 U.S.C. 16).

First Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT - VEHICULAR
United States v. Earle, 488 F.3d 537 (1st Cir. Jun. 6, 2007) (Massachusetts conviction of assault and battery with a dangerous weapon, a motor vehicle, in violation of Mass. Gen. Laws ch. 265, 15A(b), constituted a crime of violence, for illegal re-entry sentencing purposes, since the elements of the statute require the use of force against the person of another).

Second Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - POSSESSION OF A WEAPON
United States v. Gamez, 577 F.3d 394 (2d Cir. Aug. 20, 2009) (New York conviction for violation of Penal Law 265.03, second degree possession of a weapon, is not a crime of violence for illegal re-entry sentencing purposes).

Third Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - SIMPLE ASSAULT
United States v. Otero, __ F.3d __ 2007 WL 2610412 (3d Cir. Sept. 12, 2007) (Pennsylvania conviction of simple assault, in violation of 18 Pa. Cons.Stat. Ann. 2701(a) (2003), is not necessarily a crime of violence for illegal re-entry sentencing purposes since the offense does not necessarily require proof of the use of force when causing "bodily injury."), applying reasoning of Popal v. Gonzales, 416 F.3d 249, 254 (3d Cir. 2005) (same statute is not necessarily an aggravated felony crime of violence) to the sentencing context.

Fifth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE
United States v. Williams, 610 F.3d 271 (5th Cir. Jun. 24, 2010) (leaving aliens locked in truck trailer without air conditioning did not establish intent required for "act of violence" sufficient to warrant imposition of life sentence for death of immigrants, since act did not involve use of force).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - SEXUAL ASSAULT OF A CHILD
United States v. Castro-Guevarra, 575 F.3d 550 (5th Cir. Jul. 13, 2009) (Texas conviction for sexual assault of a child younger than 17 years of age, in violation of Penal Code 22.011(a)(2)(A), (c)(1), constituted a conviction for sexual abuse of a minor, and thus a crime of violence for illegal re-entry sentencing purposes); accord, United States v. Martinez-Vega, 471 F.3d 559, 562 (5th Cir. 2006) (Tex. Penal Code 22.011(a)(2) falls within the U.S.S.G. 2L1.2(b)(1)(A)(ii) enhancement as the enumerated offense of sexual abuse of a minor); United States v. Ayala, 542 F.3d 494 (5th Cir. 2008) (Texas conviction of indecency with a "child" in which a "child" is under 17 years old constitutes sexual abuse of a minor under U.S.S.G 2L1.2 cmt. n.1(B)(iii)); United States v. Zavala-Sustaita, 214 F.3d 601, 604 (5th Cir. 2000); United States v. Najera-Najera, 519 F.3d 509, 511 (5th Cir. 2008).

Seventh Circuit

AGGRAVATED FELONY " CRIMES OF VIOLENCE " COMMITTING FELONY WHILE ARMED
Brown v. Rios, 696 F.3d 638, *644 (No. 11-1695) (7th Cir. Aug. 20, 2012) (armed violence, defined as "committing any felony defined by Illinois Law while armed," did not qualify as a Violent Felony when the underlying felony consisted of simple possession of drugs; while there is evidence of a connection between Congresss attempt to keep firearms away from habitual drug users and its goal of reducing violent crime, United States v. Yancey, 621 F.3d 681, 686 (7th Cir. 2010), it has not been shown that the mere possession of a gun by a drug user . . . can be described as purposeful, violent, or aggressive conduct within the meaning of Begay.).

AGGRAVATED FELONY - CRIME OF VIOLENCE - BATTERY
LaGuerre v. Mukasey, 526 F.3d 1037 (7th Cir. May 20, 2008) (Illinois conviction of domestic battery, in violation of 720 ILCS 5/12-3.2(a)(1) ["intentionally or knowingly without legal justification by any means: (1) Causes bodily harm to any family or household member."], qualifies as a crime of violence under 18 U.S.C. 16(a), and therefore under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), because, as 16(a) requires, it has as an element the use of physical force), following United States v. Upton, 512 F.3d 394, 405 (7th Cir. 2008) ("This provision of the statute unambiguously requires proving physical force: to sustain his conviction for domestic battery, the state had to prove that he [c]ause[d] bodily harm, which means that it had as an element the use ... of physical force against the person of another.").

The reasoning of Upton, however, is incorrect. There is a great difference between the element of causing bodily harm and the requirement of the use of physical force, in particular violent physical force. See Leocal v. Ashcroft, 543 U.S. 1, 9 (2004); see N. TOOBY & J. ROLLIN, AGGRAVATED FELONIES 5.19 (2006).

Eighth Circuit

DOMESTIC VIOLENCE " ASSAULT " CRIME OF VIOLENCE
Ramirez-Barajas v. Sessions, 877 F.3d 808 (8th Cir. Dec. 15, 2017), cert. denied sub nom. Ramirez-Barajas v. Whitaker, 139 S. Ct. 584, 202 L. Ed. 2d 402 (2018) (Minnesota conviction for domestic assault, in violation of Minn. Stat. 609.2242(1)(1), is a crime of domestic violence for immigration purposes, even though the statute would include harm by poisoning).

DOMESTIC VIOLENCE " ASSAULT " CRIME OF VIOLENCE
Ramirez-Barajas v. Sessions, 877 F.3d 808 (8th Cir. Dec. 15, 2017), cert. denied sub nom. Ramirez-Barajas v. Whitaker, 139 S. Ct. 584, 202 L. Ed. 2d 402 (2018) (Minnesota conviction for domestic assault, in violation of Minn. Stat. 609.2242(1)(1), is a crime of domestic violence for immigration purposes, even though the statute would include harm by poisoning).

AGGRAVATED FELONY " CRIME OF VIOLENCE " THIRD-DEGREE ASSAULT
Roberts v. Holder, 745 F.3d 928 (8th Cir. Mar. 20, 2014) (Minnesota conviction for third-degree assault, under Minn.Stat. 609.223 subd. 1, 609.02 subd. 10. [assault of another, (2) that inflicts substantial bodily harm. Minn.Stat. 609.223 subd. 1. Assault is defined as (1) an act done with intent to cause fear in another of immediate bodily harm or death; or (2) the intentional infliction of or attempt to inflict bodily harm upon another.], constituted a crime of violence aggravated felony, because the ordinary case of third-degree assault involve[s] the intentional use of physical force against another, so it has as an element the use, attempted use, or threatened use of physical force); quoting United States v. Salean, 583 F.3d 1059, 1060 (8th Cir.2009) (Minnesota conviction of fourth-degree assault constituted violent felony within the ACCA based on a virtually identical definition).

Ninth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " HARASSMENT
United States v. Werle, 877 F.3d 879 (9th Cir. Dec. 13, 2017) (Washington conviction of felony harassment, in violation of R.C.W. 9A.46.020(2)(b)(ii) [knowingly threaten to kill], is a crime of violence for illegal reentry sentencing purposes, even if the threat could be for an indeterminate time in the future and even if it may include a threat to use poison).

AGGRAVATED FELONY " CRIME OF VIOLENCE " HARASSMENT
United States v. Werle, 877 F.3d 879 (9th Cir. Dec. 13, 2017) (Washington conviction of felony harassment, in violation of R.C.W. 9A.46.020(2)(b)(ii) [knowingly threaten to kill], is a crime of violence for illegal reentry sentencing purposes, even if the threat could be for an indeterminate time in the future and even if it may include a threat to use poison).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT WITH A DEADLY WEAPON
United States v. Jimenez-Arzate, 553 Fed.Appx. 700 (9th Cir. Jan. 24, 2014), panel rehearing granted, Jul. ___, 2014, ___ F.3d ___ (9th Cir. 2014) (California conviction for assault with a deadly weapon, in violation of Penal Code 245(a), is an aggravated felony crime of violence), rehearing granted since this conviction may no longer be a categorical match for the aggravated felony crime of violence definition, in light of the recent Ninth Circuit en banc decision in Ceron v. Holder, 747 F.3d 773 (9th Cir. Mar. 31, 2014). Thanks to Kara Hartzler.

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT ON OFFICER
United States v. Dominguez-Maroyoqui, 748 F.3d 918 (9th Cir. Apr. 7, 2014) (federal conviction for assaulting a federal officer, in violation of 18 U.S.C. 111(a), is not categorically a crime of violence for illegal re-entry sentencing purposes, since the offense does not require, as an element, proof that defendant used, attempted to use, or threatened to use physical force).

AGGRAVATED FELONY " CRIME OF VIOLENCE " FORCIBLE RAPE
United States v. Ruiz-Apolonio, 657 F.3d 907 (9th Cir. Sept. 14, 2011) (California conviction of forcible rape, under Penal Code 261(a)(2), is categorically a "crime of violence" as defined by the Sentencing Guidelines).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT WITH A DEADLY WEAPON
Camacho-Cruz v. Holder, 621 F.3d 941 (9th Cir. Sept. 2, 2010) (Nevada conviction of assault with a deadly weapon, under N.R.S. 200.471, which may be violated by putting another in reasonable apprehension of immediate bodily harm, is categorically an aggravated felony crime of violence for immigration purposes).

AGGRAVATED FELONY " CRIME OF VIOLENCE " MENACING
United States v. Melchor-Meceno, 620 F.3d 1180 (9th Cir. Sept. 1, 2010) (Colorado felony conviction of menacing, under C.R.S. 18-3-206, categorically constituted a crime of violence for illegal re-entry sentencing purposes, since it involves a threat of imminent serious bodily injury).

AGGRAVATED FELONY - CRIME OF VIOLENCE - THREATS
United States v. Villavicencio-Burruel, 608 F.3d 556 (9th Cir. Jun. 14, 2010) (California conviction for violation of Penal Code 422, criminal threats, is categorically a "crime of violence" for illegal re-entry sentencing purposes).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT WITH A FIREARM
United States v. Heron-Salinas, 566 F.3d 898 (9th Cir. May 20, 2009) (per curiam) (California conviction of assault with a firearm, under Penal Code 245(a)(2), constituted a crime of violence as defined in 18 U.S.C. 16, for immigration purposes: "The use of a firearm in the commission of the crime is enough to demonstrate that actual force was attempted or threatened under section 16(a). Similarly, one who assaults another by means of a firearm necessarily disregards the substantial risk that in the course of committing the offense he might intentionally use actual physical force against the victim under section 16(b)."); following Ortiz-Magana v. Mukasey, 542 F.3d 653, 654 (9th Cir.2008) (California conviction of aiding and abetting assault with a deadly weapon in violation of Penal Code 245(a)(1) is categorically a crime of violence under 18 U.S.C. 16); Ocampo-Duran v. Ashcroft, 254 F.3d 1133, 1134-35 (9th Cir.2001) (California conviction of aiding and abetting assault with a deadly weapon in violation of Penal Code 245(a)(1), is an aggravated felon under 8 U.S.C. 1101(a)(43)(F)).

Lower Courts of Ninth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " ESCAPE FROM CUSTODY
United States v. Simmons, 782 F.3d 510 (9th Cir. Apr. 3, 2015) (Hawaii conviction of second-degree escape from custody, in violation of Hawaii Revised Statutes 710"1021, did not categorically constitute a crime of violence, under U.S. Sentencing Guidelines (Sentencing Guidelines or U.S.S.G.) 4B1.1(a), because it includes both active and passive forms of escape); see Chambers v. United States, 555 U.S. 122, 126"27, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009).

Tenth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " MENACING
Damaso-Mendoza v. Holder, 653 F.3d 1245 (10th Cir. Aug. 9, 2011) (Colorado conviction for menacing, under Colo.Rev.Stat. 18"3"206 [by any threat or physical action, he or she knowingly places or attempts to place another person in fear of imminent serious bodily injury], is categorically an aggravated felony crime of violence since it involves a threat of physical force).

Other

AGGRAVATED FELONY - CRIME OF VIOLENCE
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.")