The aggravated felony crime of violence definition requires that the offense must have as an element the use, or attempted or threatened use, of “physical force.”[424]  Under 18 U.S.C. § 16, the force used to constitute an aggravated felony crime of violence for immigration purposes must be “destructive or violent force.”[425]  In Ye v. INS, the Ninth Circuit agreed with the Seventh Circuit that “the force necessary to constitute a crime of violence [under 18 U.S.C. § 16] … must actually be violent in nature.”[426]   In Flores v. Ashcroft, the Seventh Circuit explained:

 

Section 16(a) refers to the “use of physical force.” Every battery entails a touch, and it is impossible to touch someone without applying some force, if only a smidgeon. Does it follow that every battery comes within § 16(a)? No, it does not. Every battery involves “force” in the sense of physics or engineering, where “force” means the acceleration of mass. A dyne is the amount of force needed to accelerate one gram of mass by one centimeter per second per second. That’s a tiny amount; a paper airplane conveys more. (A newton, the amount of force needed to accelerate a kilogram by one meter per second per second, is 100,000 dynes, and a good punch packs a passel of newtons.) Perhaps one could read the word “force” in § 16(a) to mean one dyne or more, but that would make hash of the effort to distinguish ordinary crimes from violent ones. How is it possible to commit any offense without applying a dyne of force? Section 16(a) speaks of “physical force against the person or property of another” (emphasis added). Cashing a check obtained by embezzlement requires lots of dynes to move the check into an envelope for mailing. Suppose someone finds a set of keys that the owner dropped next to his car and, instead of taking them to a lost and found, turns the key in the lock and drives away. One would suppose that to be a paradigm non-violent offense, yet turning the key in the lock requires “physical force” (oodles of dynes) directed against the property (the auto) of another.

 

            To avoid collapsing the distinction between violent and non-violent offenses, we must treat the word “force” as having a meaning in the legal community that differs from its meaning in the physics community. The way to do this is to insist that the force be violent in nature--the sort that is intended to cause bodily injury, or at a minimum likely to do so. We have already drawn just that line. See Solorzano-Patlan v. INS, 207 F.3d 869, 875 n. 10 (7th Cir. 2000); Xiong v. INS, 173 F.3d 601, 604-05 (7th Cir. 1999). Otherwise “physical force against” and “physical contact with” would end up meaning the same thing, even though these senses are distinct in law. This is not a quantitative line (“how many newtons makes a touching violent?”) but a qualitative one. An offensive touching is on the “contact” side of this line, a punch on the “force” side; and even though we know that Flores’s acts were on the “force” side of this legal line, the elements of his offense are on the “contact” side.[427]

 

A number of other circuits are in agreement, so much so that this is now the majority view.[428]  However, some circuits disagree.[429]

                In United States v. Belless,[430] the Ninth Circuit illustrated the distinction between “force” as that term is used in state statutes defining minor assault and battery offenses, and “physical force” as that term is used under federal law.[431]  The court examined whether defendant’s prior Wyoming conviction for domestic violence was one that had as an element the use or attempted use of “physical force,” as that term is construed under federal law.  Specifically, the Court examined 18 U.S.C. § 921(a)(33)(A)(ii), which defines “crime of violence” for purposes of 18 U.S.C. § 922(g)(9), a federal criminal offense which prohibits those who have been convicted of a misdemeanor crime of domestic violence from possessing a firearm.  The Wyoming battery statute provided that one could be convicted if “he unlawfully touches another in a rude, insolent or angry manner.”[432]  The court held that the kind of force contemplated by this statute did not rise to the level required by Congress to constitute an offense that had “the use of physical force” as an element.[433]  The court explained, “[a]ny touching constitutes ‘physical force’ in the sense of Newtonian mechanics.  Mass is accelerated, and atoms are displaced.”[434]  However, to qualify as a crime of violence under 18 U.S.C. § 921(a)(33)(A)(ii), force must not be “de minimis.”  The statute requires instead the “violent use of force against the body of another individual.”[435]  The court pointed out that under the Wyoming statute, merely jabbing a finger into another’s chest in an “ungentlemanly manner” (as Nixon did to Khruschev in a 1959 meeting) would be sufficient to sustain a conviction.[436]  It held that this minimal level of force was insufficient, however, to constitute a crime of domestic violence under the federal firearm statute, which is equivalent to the 18 U.S.C. § 16(a) definition of crime of violence used as a requirement for aggravated felony crimes of violence for immigration purposes.  

 

                The court distinguished the Wyoming statute from the Maine assault and battery statute, which criminalized “offensive physical contact,” because the latter statute had been limited by case law to “require [ ] more than a mere touching of another.”[437]  The elements of each statute of conviction must be individually analyzed.[438]

 

                Applying the holding in Belless to the immigration context, a state assault and battery statute under which a conviction may be sustained by proof that the defendant merely touched another person (however rudely or offensively) cannot, by itself, sustain a finding that a noncitizen has committed a crime of violence under 18 U.S.C. § 16(a), and therefore cannot sustain a finding that the noncitizen is removable as an aggravated felon for a crime of violence,[439] or as a noncitizen convicted of a domestic violence offense.[440]  The Ninth Circuit has in fact adopted this principle in immigration cases.[441]

                In Ortega-Mendez v. Gonzales,[442] the Ninth Circuit implicitly overruled prior caselaw[443] to find, based upon Leocal,[444] that a conviction for simple battery, under California Penal Code § 242 was not categorically a crime of violence within the meaning of 18 U.S.C. § 16(a), because the “force or violence” element requires neither force capable of hurting or causing injury nor violence in the usual sense of the term since the least touching is sufficient to convict under California law.

 

This analysis is applicable to the domestic violence ground for removal, which also directly refers to 18 U.S.C. § 16.[445]  See Chapter 22, infra.  This ruling may also have favorable implications for Sentencing Guidelines determinations regarding “crimes of violence” under various definitions.[446]

 

[424] 18 U.S.C. § 16.

[425] Matter of Small, 23 I. & N. Dec. 448, 449, n.1 (BIA 2002); see also Ye v. INS, 214 F.3d 1128 (9th Cir. 2000) (quoting Solorzano-Patlan v. INS, 207 F.3d 869, 875 n.10 (7th Cir. 2000) (“[T]he force necessary to constitute a crime of violence [ ] must actually be violent in nature.”)); United States v. Lucio-Lucio, 347 F.3d 1202 (10th Cir. 2003) (reversing district court to hold Colorado DUI conviction is not a crime of violence); Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir. 2002) (holding that conviction under Connecticut assault statute is not a crime of violence); Flores v. Ashcroft, 350 F.3d 666 (7th Cir. Nov. 26, 2003) (reversing BIA to find that noncitizen convicted under Indiana battery statute was not deportable for having a crime of domestic violence; state statute that prohibits unlawful intentional touching, but does not require intent to injure, is not necessarily crime of violence under 18 U.S.C. § 16(a)).  But cf. Matter of Martin, 23 I. & N. Dec. 491 (BIA 2002) (treating Connecticut assault statute as a crime of violence).

[426] Ye v. INS, 214 F.3d 1128, 1133 (9th Cir. 2000), quoting Solorzano-Patlan v. INS, 207 F.3d 869, 874-875 (7th Cir. 2000).

[427] Flores v. Ashcroft, 350 F.3d 666 (7th Cir. Nov. 26, 2003) (Indiana conviction of misdemeanor battery, in violation of Ind.Code § 35-42-2-1, which may be based on any touching, however slight, done in a rude, insolent, or angry manner, in which any bodily injury, however minor, results, does not constitute a crime of violence within the meaning of 18 U.S.C. 16(a), since the elements do not include a sufficiently violent act where there is no intent to injure, merely an intent to touch, required).

[428] United States v. Gonzalez-Chavez, 432 F.3d 334 (5th Cir. Nov. 30, 2005) (Florida conviction of aggravated battery under § 784.045 of the Florida Statutes is divisible, as the statute may be vioalted 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); United States v. Venegas-Onelas, 348 F.3d 1273 (10th Cir. Nov. 14, 2003) (“Force,” as used in the definition of a “crime of violence,” is “synonymous with destructive or violent force.” United States v. Landeros-Gonzales, 262 F.3d 424, 426 (5th Cir. 2001) (quoting United States v. Rodriguez-Guzman, 56 F.3d 18, 20 n.8 (5th Cir. 1995); see also Lucio-Lucio, 347 F.3d 1202, at 1204 (explaining that 18 U.S.C. § 16(b) calls to mind “active violence”) (quotation omitted); Bazan-Reyes v. INS, 256 F.3d 600, 611 (7th Cir. 2001) (“[W]e found the term ‘physical force’ in 18 U.S.C. § 16(b) refers to actual violent force.”; court recognized United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001) distinction between offenses involving substantial risk that injury will result (not a crime of violence) and offenses in which the defendant will intentionally employ force against the person or property of another in order to effectuate the commission of the offense (crime of violence), and the requirement that the risk of force involve intentional, rather than accidental, physical force).

[429] See Vargas-Sarmiento v. U.S. Dep’t Of Justice, 448 F.3d 159 (2d Cir. May 8, 2006) (“the physical force referenced in § 16(b) includes any ‘power, violence, or pressure directed against a person or thing’ [W]hen a perpetrator lures a person to voluntarily enter a room, only then to lock the door behind the person, the perpetrator has intentionally used physical force to commit the crime of imprisonment.”), citing Dickson v. Ashcroft, 372 F.3d 44, 50 (2d Cir. 2003); United States v. Treto-Martinez, 421 F.3d 1156 (10th Cir. Sept. 7, 2005) (Kansas conviction of aggravated battery against a law enforcement officer, in violation of K.S.A. § 21-3414(a)(1)(C), is a crime of violence for sentencing purposes; “[a]lthough not all physical contact performed in a rude, insulting or angry manner would rise to the level of physical force, we conclude that all intentional physical contact with a deadly weapon done in a rude, insulting or angry manner does constitute physical force under § 2L1.2(b)(1)(A)”); United States v. Smith, 171 F.3d 617, 621 n.2 (8th Cir. 1999).  See also United States v. Nason, 269 F.3d 10, 20 (1st Cir. Oct. 19, 2001) (Maine conviction for assault, under 17-A M.R.S.A. § 207 qualifies as a “crime of violence” for purposes of 18 U.S.C. § 922(g) (felon with a firearm), since the minimum conduct of “offensive physical contact,” “invariably emanate[s] from the application of some quantum of physical force” which is sufficient to constitute the use of physical force for purposes of defining the offense as a crime of violence).

[430] United States v. Belless, 338 F.3d 1063 (9th Cir. 2003) (Wyoming battery statute encompasses less violent behavior than that required to sustain a finding of use or attempted use of physical force, to serve as a predicate offense under the 18 U.S.C. § 922(g)(9) illegal possession of a firearm statute’s definition of a crime of domestic violence).

[431]  United States v. Belless, 338 F.3d 1063 (9th Cir. 2003). 

[432] Id. at p. 1067. 

[433] Ibid. 

[434] Id. at 1067-1068. 

[435] Id. at 1068. 

[436] Ibid. 

[437] Id. at 1068 (quoting United States v. Nason, 269 F.3d 10, 16 (1st Cir. 2001).

[438] The California battery statute, for example, is like that of Wyoming, since even the slightest touching can constitute the offense of simple battery under California Penal Code § 242.  People v. Rocha, 3 Cal.3d 893 (1971).  Washington state’s Fourth Degree assault, under RCW § 9A.36.041, is similar.  See State v. Davis, 60 Wash. App. 813, 821 (1991).

[439] INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F).

[440] INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i).

[441] See, e.g., United States v. Nobriga, 474 F.3d 561 (9th Cir. Dec. 29, 2006) (Hawaii conviction for Abuse of a Family or Household Member, in violation of Hawaii Revised Statutes § 709-906(1), did not categorically involve the “violent use of force,” as required under Armed Career Criminal Act, 18 U.S.C. § 921(a)(33)(A)(ii), since the offense of conviction does not necessarily require a “violent use of force”); Singh v. Ashcroft, 386 F.3d 1228 (9th Cir. Oct. 21, 2004) (Oregon conviction under Oregon Revised Statute § 166.065(1)(a)(A), punishing intentionally harassing or annoying another person by subjecting that person to offensive physical contact, is not a crime of violence, and therefore not a crime of domestic violence for immigration purposes, since the force required to commit the offense, including spitting, is not necessarily “violent” force).

[442] Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. Jun. 15, 2006).

[443] E.g., United States v. Robinson, 967 F.2d 287 (9th Cir. 1992) (simple battery is crime of violence under U.S.S.G. § 4B1.1).

[444] Leocal v. Ashcroft, 543 U.S. 1 (2004).

[445] INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i). Matter of Sanudo, 23 I. & N. Dec. 968 (BIA Aug. 1, 2006) (California conviction for domestic battery in violation of Penal Code § § 242 and 243(e)(1) does not qualify categorically as a conviction for a “crime of violence” within the meaning of 18 U.S.C. § 16(a) or (b), and is thus not a “crime of domestic violence” under INA § 237(a)(2)(E)(i)), following Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006).

[446] United States v. Sandoval, 390 F.3d 1077 (9th Cir. Aug. 19, 2004) (Washington conviction of assault in the third degree is not a crime of violence for sentencing purposes since the statute may be violated through an unlawful touching that does not involve substantial physical force or seriously risk physical injury).

AGGRAVATED FELONY " DOMESTIC VIOLENCE " CORPORAL INJURY TO SPOUSE
Banuelos-Ayon v. Holder, 611 F.3d 1080, 1083 (9th Cir. 2010) (California conviction of corporal injury of a spouse constitutes a crime of violence, and thus is a crime of domestic violence, INA 237(a)(2)(E)(i), 8 U.S.C. 237(a)(2)(E)(i), for immigration purposes).

First Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT AND BATTERY
United States v. Martinez, ___ F.3d ___, 2014 U.S. App. LEXIS 15173 (1st Cir. Aug. 6, 2014) (Massachusetts convictions for assault and battery and simple assault, under Mass. Gen. L. ch. 265, 13A, did not categorically constitute crimes of violence under the Federal Sentencing Guidelines, U.S.S.G. 4B1.2(a), even though the defendant admitted having struck his girlfriend, because the term struck covers conduct that is neither intentional nor involves violent force). Note: The defendant did not raise a claim that the assault and battery statute was not divisible, so no resort to the record of conviction was proper; therefore, the court did not reach that issue. Immigration attorneys should argue that under Martinez, Massachusetts simple assault can never be an aggravated felony as a crime of violence or a crime of domestic violence under INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i). Similarly, immigration counsel should argue that Massachusetts assault and battery is not a crime of violence " both because the record of conviction does not clearly and necessarily establish a conviction for harmful battery and because (most importantly) assault and battery is not a divisible offense and therefore should never be considered a crime of violence.

Fourth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " SECOND-DEGREE ASSAULT
United States v. Royal, 731 F.3d 333 (4th Cir. Oct. 1, 2013) (Maryland conviction for second-degree assault, in violation of Md. Code, Crim. Law 3"203(a), did not constitute a predicate violent felony under the Armed Career Criminal Act, because the Maryland offense was a facially indivisible statute, i.e., one that does not set out elements of the offense in the alternative, but which may nevertheless broadly criminalize qualitatively different categories of conduct; Maryland courts do not require unanimity on whether the offense was committed by offensive physical contact or infliction of physical harm.).

AGGRAVATED FELONY - CRIME OF VIOLENCE - NORMAL PREGNANCY FALLS WITHIN MEANING OF GREAT BODILY INJURY
People v. Cross, 45 Cal.4th 58, 190 P.3d 706 (Aug. 28, 2008) (great bodily injury enhancement of sentence for committing a lewd act on a child under the age of 14, affirmed where pregnancy without medical complications is sufficient to find great bodily injury).

Fifth Circuit

AGGRAVATED FELONY " CRIMES OF VIOLENCE " ASSAULT WITH DEADLY WEAPON
United States v. Carrasco-Tercero, ___ F.3d ___, 2014 WL 983180 (5th Cir. Mar. 13, 2014) (New Mexico conviction of aggravated assault with a deadly weapon, under N.M. Stat. 30"3"2, was a crime of violence for illegal reentry sentencing purposes, notwithstanding that assault N.M. Stat. 30-3-1 includes the use of insulting language toward another impugning his honor, delicacy or reputation.; that New Mexico did not have approved jury instructions for an aggravated assault crime predicated on insulting language, combined with the fact that Carrasco"Tercero has presented no instance where a defendant has been charged with such an offense or where a New Mexico court has mentioned it as a possibility, leads this court to conclude that New Mexico does not in fact recognize this theory of aggravated assault.); disagreeing with United States v. Rede"Mendez, 680 F.3d 552, 557-560 (6th Cir.2012) (New Mexico conviction of aggravated assault, under N.M. Stat. 30"3"2, was not a crime of violence, because assault under N.M. Stat. 30-3-1 included the use of insulting language toward another impugning his honor, delicacy or reputation.).

AGGRAVATED FELONY - CRIME OF VIOLENCE - INJURY OF CHILD
United States v. Andino-Ortega, 608 F.3d 305 (5th Cir. Jun. 8, 2010) (Texas conviction for injury to child, in violation of Texas Penal Code 22.04(a), did not constitute a crime of violence, for illegal re-entry sentencing purposes, since it does not require use of force; Texas Penal Code 22.04(a) can be committed, for example, "by intentional act without the use of physical force by putting poison or another harmful substance in a child's food or drink.").

AGGRAVATED FELONY - CRIME OF VIOLENCE - KIDNAPPING - ELEMENTS DID NOT NECESSARILY REQUIRE USE OF FORCE
United States v. Moreno-Florean, 542 F.3d 445 (5th Cir. Sept. 8, 2008) (California conviction for kidnapping, in violation of California Penal Code 207(a) is not necessarily a crime of violence for illegal re-entry sentencing purposes, since the statute can be violated without the use of physical force).

Sixth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - SEXUAL BATTERY
United States v. Wynn, 579 F.3d 567 (6th Cir. Sept. 2, 2009) (Ohio conviction for violation of Ohio R.C. 2907.03, sexual battery, is not categorically a "crime of violence" for career offender sentencing purposes, since some subsections of the statute do not necessarily require the use of violent force, but only lack of consent, which may only require lack of lawful ability to consent).

Seventh Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " AGGRAVATED BATTERY
United States v. Aviles-Solarzano, 623 F.3d 470, 472-473 (7th Cir. Oct. 13, 2010) (Illinois conviction of aggravated battery, under 720 ILCS 5/12-4(b), is not categorically a crime of violence, within the meaning of U.S.S.G. 2L1.2(b)(1)(A)(ii), since Illinois aggravated battery may include non-violent offenses, such as spitting on another person while standing on a sidewalk).

Eighth Circuit

AGGRAVATED FELONY " OBSTRUCTION OF JUSTICE " OBSTRUCTION OF LEGAL PROCESS
Ortiz v. Lynch, __ F.3d __ (8th Cir. Aug. 6, 2015) (Minnesota conviction for violation of Minn.Stat. 609.50, subd. 2(2), obstruction of legal process, is not an aggravated felony crime of violence under 8 U.S.C. 1101(a)(43)(F), INA 101(a)(43)(F), since the minimum amount of force required to sustain a conviction under the obstruction of legal process is not violent force as required by 18 U.S.C. 16).

Ninth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " ROBBERY
United States v. Jones, 877 F.3d 884 (9th Cir. Dec. 15, 2017) (Arizona conviction for armed robbery, under A.R.S. 13-1904, is not a violent felony for purposes of the ACCA, because Arizona's armed robbery does not require the use of force), following United States v. Molinar, 876 F.3d 953 (9th Cir. 2017).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ROBBERY United States v. Jones, 877 F.3d 884 (9th Cir. Dec. 15, 2017) (Arizona conviction for armed robbery, under A.R.S. 13-1904, is not a violent felony for purposes of the ACCA, because Arizona's armed robbery does not require the use of force), following United States v. Molinar, 876 F.3d 953 (9th Cir. 2017).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ROBBERY
United States vs. Sanchez Molinar, 876 F.3d 953 (9th Cir. Nov. 29, 2017) (Arizona conviction for robbery, in violation of Ariz. Rev. Stat. 13-1904(A), which includes merely possessing a fake gun during the commission of a robbery without mentioning or brandishing it, is not a crime of violence for purposes of the ACCA because the minimum conduct necessary to commit the offense is not sufficiently violent for to qualify as a crime of violence under Johnson v. United States, 559 U.S. 133 (2010)).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ROBBERY
United States vs. Sanchez Molinar, 876 F.3d 953 (9th Cir. Nov. 29, 2017) (Arizona conviction for robbery, in violation of Ariz. Rev. Stat. 13-1904(A), which includes merely possessing a fake gun during the commission of a robbery without mentioning or brandishing it, is not a crime of violence for purposes of the ACCA because the minimum conduct necessary to commit the offense is not sufficiently violent for to qualify as a crime of violence under Johnson v. United States, 559 U.S. 133 (2010)).

AGGRAVATED FELONY " CRIME OF VIOLENCE " RESISTING OFFICER
Flores-Lopez v. Holder, 685 F.3d 857 (9th Cir. Jul. 9, 2012) (California conviction of resisting an executive officer in violation of Penal Code 69 is not a categorical crime of violence aggravated felony, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), because it requires only use of de minimis force; the idea that resisting executive officer would inevitably lead to use of violent, physical force was speculative).

AGGRAVATED FELONY " CRIME OF VIOLENCE " COERCION
Cortez-Guillen v. Holder, 623 F.3d 933 (9th Cir. Oct. 5, 2010) (Alaska conviction of coercion, in violation of Alaska Statute 11.41.530(a)(1), compelling another to do an act by instilling fear of injury or commission of any other crime, did not categorically constitute a crime of violence aggravated felony, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), because it could be committed by a threat of a nonviolent crime such as blackmail).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT WITH A DEADLY WEAPON - REQUIREMENT OF SUFFICIENT FORCE
United States v. Grajeda, 581 F.3d 1186 (9th Cir. Sept. 21, 2009) (California conviction of assault with a deadly weapon or by means likely to produce great bodily injury, under Penal Code 245(a)(1), categorically constituted a "crime of violence" for purposes of application of a sixteen-level enhancement to the base offense level under the "element" prong of U.S.S.G. 2L1.2(b)(1)(A)(ii), to a sentence for illegal reentry after deportation, since the offense requires sufficient violence because "even the least touching with a deadly weapon or instrument is violent in nature"); accord, United States v. Treto-Martinez, 421 F.3d 1156, 1160 (10th Cir. 2005) (holding that a person who touches another with a deadly weapon in a rude, insulting, or angry manner has threatened use of physical force for purposes of the sentencing enhancement); United States v. Dominguez, 479 F.3d 345, 348-49 (5th Cir. 2007) (holding that the touching of an individual with a deadly weapon creates a sufficient threat of force to qualify as a COV).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ESCAPE
United States v. Savage, 488 F.3d 1232, (9th Cir. Jun. 12, 2007) (Montana conviction of escape, in violation of Montana Code Annotated 45-7-306(2) (escape includes purposeful "fail[ure] to return to official detention following temporary leave granted for a specific purpose or limited time" as well as "knowingly or purposely elud[ing] official detention."), does not categorically constitute a crime of violence because it does "not differentiate between violent and non-violent escapes" and includes escapes from facilities that "run [ ] the gamut from maximum-security facilities to non-secure halfway houses."), quoting United States v. Piccolo, 441 F.3d 1084, 1088 (9th Cir. 2006).

Lower Courts of Ninth Circuit

CAL SAFE HAVENS - ASSAULT - ELEMENTS
People v. Chance, 44 Cal.4th 1164, 189 P.3d 971 (Aug. 18, 2008) (California assault is defined as, "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another;" the term "present ability" includes situations where the "defendant is several steps away from actually inflicting injury, or if the victim is in a protected position so that injury would not be immediate, in the strictest sense of that term;" the term "injury" includes "any attempt to apply physical force to the victim, and includes even injury to the victim's feelings.").

AGGRAVATED FELONY - CRIME OF VIOLENCE - KIDNAP NOT CRIME OF VIOLENCE SINCE MAY BE COMMITTED BY DECEIT, NOT FORCE
People v. Dalerio, 144 Cal.App.4th 775 (Nov. 7, 2006) (California Penal Code 207(e), kidnapping, deceit plus constant physical presence was sufficient to find that defendant had used "force" to kidnap victim, since victim was a minor and was therefore unable to give consent to being taken.).

Tenth Circuit

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 - ASSAULT - PREGNANT WOMAN
United States v. Barraza-Ramos, 550 F.3d 1246 (10th Cir. Dec. 30, 2008) (Florida conviction for aggravated battery, under Fla. Stat. 784.045(1)(b) (intentionally touching a pregnant woman against her will, striking her against her will, or causing her bodily harm), is not categorically a crime of violence, under USSG 2L1.2(b)(1)(A)(ii) ("crime of violence" includes listed offenses plus "any other 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."), supporting a 16-level enhancement of sentence for illegal reentry after deportation, because the intentional touching offense does not have sufficient violence as an element), following United States v. Hays, 526 F.3d 674, 679 (10th Cir. 2008) (Wyoming conviction of battery [unlawfully touching another in a rude, insolent, or angry manner] does not contain an element of the use or attempted use of physical force, and is therefore not categorically a crime of violence to support a conviction for possession of a firearm after having been convicted of a misdemeanor crime of domestic violence under 18 U.S.C. 922(g)(9) and 924(a)(2), since physical force in a crime of violence must entail more than mere contact).").

AGGRAVATED FELONY - CRIME OF VIOLENCE
United States v. Rodriguez-Enriquez, 518 F.3d 1191 (10th Cir. Mar. 10, 2008) (Colorado conviction for assault two (drugging a victim), in violation of Colo.Rev.Stat. Ann. 18-3-203(1)(e) (2001), is not a crime of violence for illegal re-entry sentencing purposes, since drugging by surreptitious means does not involve the use of physical force).

AGGRAVATED FELONY - CRIME OF VIOLENCE - SEXUAL ASSAULT
United States v. Romero-Hernandez, 505 F.3d 1082 (10th Cir. Oct. 16, 2007) (Colorado conviction for unlawful sexual contact, in violation of C.R.S. 18-3-404(1), is a crime of violence, as a "forcible sex offense" for illegal re-entry purposes; a sex offense is necessarily "forcible" when the victim does not consent).

Eleventh Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT ON AN OFFICER
United States v. Palomino-Garcia, 606 F.3d 1317 (11th Cir. May 21, 2010) (Arizona conviction for violation of Ariz. Stat. 13-1204(A)(7), aggravated assault against a police officer, defined as any simple assault against a law enforcement agent, is not necessarily a crime of violence for illegal re-entry sentencing purposes since the identity of the victim as a police officer does not affect the level of force required to constitute a crime of violence).