The United States Supreme Court has held that violent physical force must have been used intentionally in the commission of the offense in order to qualify as a crime of violence under 18 U.S.C. § 16(a).[449]  However, the same standard is not necessarily applied under 18 U.S.C. § 16(b).  For more discussion, see § 19.49, infra.

 

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

BIA

AGGRAVATED FELONY " CRIME OF VIOLENCE " DISCHARGE OF A FIREARM
Matter of Chairez, 26 I&N Dec. 349 (BIA 2014) (Utah conviction for violation of 76-10-508.1(1)(a), discharge of a firearm, is not categorically an aggravated felony crime of violence, since the offense may be committed recklessly).

AGGRAVATED FELONY " CRIME OF VIOLENCE " DISCHARGE OF A FIREARM
Matter of Chairez, 26 I&N Dec. 349 (BIA 2014) (Utah conviction for violation of 76-10-508.1(1)(b) and (c), discharge of a firearm in the direction of a building, person, or vehicle, is categorically an aggravated felony crime of violence).

First Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT " INTENT
Villanueva v. Holder, 784 F.3d 51 (1st Cir. Apr. 24, 2015) (Connecticut conviction for assault in the third degree, under Conn. Gen.Stat. 53a"61, did not constitute a crime of violence aggravated felony, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), where the record of conviction did not indicate the subdivision under which the noncitizen was convicted, since two of the three sections involved only recklessness or negligence which are insufficient intent to constitute a crime of violence under 18 U.S.C. 16).

Second Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " POSSESSION OF A FIREARM
United States v. Folkes, 622 F.3d 152 (2d Cir. Sept. 29, 2010) (per curiam) (New York conviction of third-degree criminal possession of a loaded firearm, in violation of N.Y. Penal Law 265.02(4), did not categorically constitute crime of violence for illegal re-entry sentencing purposes, since the crime of violence definition requires some affirmative conduct beyond mere possession of a gun); following United States v. Gamez, 577 F.3d 394, 398 (2d Cir. 2009).

Fourth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - RECKLESS ENDANGERMENT
Massis v. Mukasey, 549 F.3d 631 (4th Cir. Dec. 9, 2008) (Maryland misdemeanor conviction of reckless endangerment, in violation of Md. Code Ann. art. 27, 120 (1995) ("recklessly engages in conduct that creates a substantial risk of death or serious physical injury to another" with a five-year maximum), does not constitute an aggravated felony crime of violence, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), because recklessness is an insufficient mental state where "a crime of violence requires a substantial likelihood that the perpetrator will intentionally employ physical force. See, e.g., Dalton v. Ashcroft, 257 F.3d 200, 207-08 (2d Cir.2001); United States v. Hernandez-Castellanos, 287 F.3d 876, 881 (9th Cir.2002).").

Fifth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " MANSLAUGHTER
United States v. Garcia-Perez, ___ F.3d ___, 2015 WL 753759 (5th Cir. Feb. 23, 2015) (Florida conviction of manslaughter, in violation of Florida Statute 782.07, did not qualify as a crime of violence under United States Sentencing Guideline 2L1.2(b)(1)(A), because Florida manslaughter conviction does not require proof of force, and my be committed with negligent intent).

Sixth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " AGGRAVATED ASSAULT
United States v. McMurray, 653 F.3d 367 (6th Cir. Aug 4, 2011) (Tennessee conviction of aggravated assault, in violation of Tenn.Code Ann. 39"13"102 (1991), was not a violent felony under the ACCAs use of physical force clause, or under its residual clause, for purposes of the Armed Career Criminal Act, where the offense could be committed recklessly).

Seventh Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " INTENT
Brown v. Rios, 696 F.3d 638, *641 (No. 11-1695) (7th Cir. Aug. 20, 2012) (Supreme Court's decision in Sykes cannot be read to mean that any intentional crime is a violent felony); citing Sykes v. United States, 131 S. Ct. 2267, 2276 (2011); see Chambers v. United States, 555 U.S. 122 (2009) (failing to report to prison when ordered, though it is an intentional felony, is not a violent one, because the risk of violence in efforts to apprehend such no-shows has not been shown to be significant).

AGGRAVATED FELONY - CRIME OF VIOLENCE - DISCHARGE OF FIREARM
Jimenez-Gonzalez v. Mukasey, 548 F.3d 557 (7th Cir. Nov. 21, 2008) (Indiana conviction for criminal recklessness, in violation of Indiana Code 35-42-2-2(c)(3) [shooting a firearm into an inhabited dwelling], is not an aggravated felony crime of violence since recklessness is insufficient to find conviction of a crime of violence).

Eighth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " THIRD DEGREE ASSAULT ON AN OFFICER AGGRAVATED FELONY " CRIME OF VIOLENCE " RECKLESS INTENT CATEGORICAL ANALYSIS " RECORD OF CONVICTION " PRESENTENCE REPORT
United States. v. Garcia-Longoria, ___ F.3d ___, 2016 WL 1658120 (8th Cir. Apr. 27, 2016) (Nebraska conviction for third-degree assaulting a police officer, in violation of Neb.Rev.St. 28"931(1) (intentionally, knowingly, or recklessly cause bodily injury to a police officer), was a crime of violence for purposes of the ACCA, because the presentence report, to which the defendant did not object, reflected a mens rea of intent); see United States v. Ossana, 638 F.3d 895, 900"03 & n. 6 (8th Cir. 2011) (at least in some circumstances, a crime involving a mens rea of mere recklessness does not qualify as a crime of violence); compare United States v. Boose, 739 F.3d 1185, 1187 (8th Cir.2014), and United States v. Dawn, 685 F.3d 790, 795 (8th Cir. 2012) (following Ossana), with United States v. Kosmes, 792 F.3d 973, 977 (8th Cir. 2015) (distinguishing Ossana ), cert. denied, __ S.Ct. __ (2016).

AGGRAVATED FELONY " CRIME OF VIOLENCE " MANSLAUGHTER
United States v. Roblero-Ramirez, ___ F.3d ___, 2013 WL 2927916 (8th Cir. Jun. 17, 2013) (Nebraska conviction for violation of Neb.Rev.St. 28-305, sudden quarrel manslaughter, is not an aggravated felony crime of violence for illegal re-entry sentencing purposes where the statute does not require intent to kill).

AGGRAVATED FELONY " CRIMES OF VIOLENCE " SECOND-DEGREE BATTERY
United States v. Dawn, 685 F.3d 790 (8th Cir. Jun. 28, 2012) (Arkansas conviction of second-degree battery, in violation of Ark. Code Ann. 5"13"202(a) (2006), is not categorically a crime of violence for purposes of the Armed Career Criminals Act, because it includes recklessly causing serious physical injury, including reckless driving).

AGGRAVATED FELONY - CRIME OF VIOLENCE - TERRORISTIC THREATS
Olmsted v. Holder, 588 F.3d 556 (8th Cir. Dec. 4, 2009) (Minnesota conviction of making terroristic threats, in violation of Minn. Stat. 609.713(1) is a divisible statute, since it may be committed recklessly).

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 U.S.C. 16(b) - SUBSTANTIAL RISK OF CAUSING PHYSICAL INJURY INSUFFICIENT
United States v. Torres-Villalobos, 487 F.3d 607, ___ n.4, (8th Cir. May 9, 2007) ("substantial risk" test for crime of violence, under 18 U.S.C. 16(b), is not met by substantial risk of causing physical injury; it requires ignoring "the [substantial] risk that the use of physical force against another might be required in committing a crime."), quoting Leocal v. Ashcroft, 543 U.S. 1, 10 (2004) (emphasis added); see also United States v. Hudson, 414 F.3d 931, 935 (8th Cir.2005), cert. denied, 126 S.Ct. 1769 (2006); compare United States v. McCall, 439 F.3d 967, 973 (8th Cir.2006) (en banc) (Minnesota conviction of felony drunk driving can constitute a "violent felony" 18 U .S.C. 924(e)(2)(B)(ii), which requires only that the offense involve "conduct that presents a serious potential risk of physical injury to another").

AGGRAVATED FELONY - MANSLAUGHTER - CRIME OF VIOLENCE
United States v. Torres-Villalobos, __ F.3d __, 2007 WL 528195 (8th Cir. Feb. 22, 2007) (Minnesota conviction for second-degree manslaughter, in violation of Minn. Stat. 609.205, was not a "crime of violence" under 18 U.S.C. 16 because the offense can be committed with mere reckless intent). http://caselaw.lp.findlaw.com/data2/circs/8th/061876p.pdf

Ninth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " VOLUNTARY MANSLAUGHTER
Quijada-Aguilar v. Lynch, ___ F.3d ___, 2015 WL 5103038 (9th Cir. Sept. 1, 2015) (California conviction for voluntary manslaughter, under Penal Code 192(a), did not qualify as a particularly serious crime that would render noncitizen ineligible for withholding of removal, since it did not constitute an aggravated felony crime of violence, because it encompassed reckless conduct).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT WITH A DEADLY WEAPON
United States v. Jimenez-Arzate, ___ F.3d ___ (9th Cir. Mar. 30, 2015) (amending and superseding opinion denying rehearing en banc) (California conviction for violation of Penal Code 245(a)(1) is categorically a crime of violence for federal sentencing purposes, since United States v. Grajeda, which held that a conviction under section 245(a)(1) is categorically a crime of violence, is still good law even in light of People v. Aznavoleh, 210 Cal.App.4th 1181 (2012), and People v. Wyatt, 48 Cal.4th 776 (2010), which do not hold that assault with a deadly weapon may be committed with reckless intent; a defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known. Wyatt, at 159 (quoting People v. Williams, 26 Cal.4th 779 (2001)).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT WITH A DEADLY WEAPON
United States v. Jimenez-Arzate, ___ F.3d ___, 2015 WL 149802 (9th Cir. Jan. 12, 2015) (per curiam) (California conviction for assault with deadly weapon, in violation of Penal Code 245(a)(1), was categorically a crime of violence, for federal sentencing purposes, rejecting the argument that the California courts have weakened the intent requirement to recklessness, which involves insufficient intent to qualify, so United States v. Grajeda, 581 F.3d 1186 (9th Cir. 2009), is no longer good law in light of People v. Aznavoleh, 210 Cal.App.4th 1181, 148 Cal.Rptr.3d 901, 904 (2012), and People v. Wyatt, 48 Cal.4th 776, 108 Cal.Rptr.3d 259, 229 P.3d 156, 157 (2010)). The court reasoned: We disagree. Aznavoleh involved a defendant who intentionally ran a red light while racing another car down the street even though he saw a car entering the intersection on the green. The defendant made no effort to stop despite a passenger warning him that he needed to stop. The California Court of Appeal upheld the trial court's finding that the defendant met the willfulness element of assault under California Penal Code 245(a)(1), which the California Court of Appeal defined as intentionality. Wyatt involved a father who, while play wrestling with his infant son, struck the boy with such force that he killed him. [Citation omitted.] The Wyatt court upheld the father's conviction for involuntary manslaughter and assault on a child causing death because substantial evidence established that defendant knew he was striking his young son with his fist, forearm, knee, and elbow, and that he used an amount of force a reasonable person would realize was likely to result in great bodily injury. Id. As did the California Court of Appeal in Aznavoleh, the California Supreme Court in Wyatt explained that a defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known. Id. at 159 (quoting People v. Williams, 26 Cal.4th 779, 111 Cal.Rptr.2d 114, 29 P.3d 197, 203 (2001)). Contrary to Jimenez"Arzate's argument, Aznavoleh did not hold that an automobile accident stemming from merely reckless driving may result in a conviction under 245(a)(1). The defendant in Aznavoleh engaged in street racing, heedlessly disregarding a perceived likelihood of death or grave injury to others. Likewise, in Wyatt, a reasonable person would have recognized the dangers of striking a child with the deadly force used, even if the defendant was not subjectively aware of the risks of his play wrestling with the child in that manner. (Id. at ___.)

AGGRAVATED FELONY " CRIME OF VIOLENCE " FIRST DEGREE ASSAULT
United States v. Castillo-Marin, 684 F.3d 914 (9th Cir. Jul. 3, 2012) (New York conviction of assault in the first degree, under New York Penal Law 120.10, was not categorically a crime of violence, for illegal re-entry purposes, because it includes reckless endangerment and causing injury during flight, which do not prohibit only conduct that involves an intent to injure, and may be committed with mere recklessness).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ATTEMPTED AGGRAVATED ASSAULT
United States v. Gomez-Hernandez, 680 F.3d 1171 (9th Cir. May 31, 2012) (Arizona attempted aggravated assault conviction, for attempting to "intentionally, knowingly or recklessly" cause a physical injury with a deadly weapon is categorically a crime of violence for illegal re-entry sentencing purposes because one cannot "attempt" to commit a reckless act, and therefore the conviction must have involved intent, rather than recklessness).

AGGRAVATED FELONY - CRIME OF VIOLENCE - MENS REA REQUIREMENT - STRICT LIABILITY, NEGLIGENCE, GROSS NEGLIGENCE, AND RECKLESSNESS ARE NOT ENOUGH
United States v. Grajeda, 581 F.3d 1186 (9th Cir. Sept. 21, 2009) ("In Leocal v. Ashcroft, the Supreme Court held that the phrase "use ... of physical force against the person or property of another," contained in the crime of violence definition provided in 18 U.S.C. 16(a), [footnote omitted] required proof of active employment of force, and could not be satisfied by negligent or accidental conduct. 543 U.S. 1, 9-11, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). In Fernandez-Ruiz v. Gonzales, this court, sitting en banc, followed several other circuits in extending Leocal, holding that "neither recklessness nor gross negligence is a sufficient mens rea to establish that a conviction is for a crime of violence." 466 F.3d 1121, 1130 (9th Cir.2006) (en banc).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT WITH A DEADLY WEAPON - INTENT REQUIREMENT
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 illegal re-entry sentencing purposes, since "generic intent" to commit an act likely to result in the use of force is sufficient to meet the "crime of violence" intent requirement).

NOTE: Counsel might attempt to dispute the accuracy of the Ninth Circuits analysis of California case law on "generic" intent in the assault context.

AGGRAVATED FELONY - CRIME OF VIOLENCE - AGGRAVATED ASSAULT
United States v. Esparza-Herrera, ___ F.3d ___, 2009 WL 455512 (9th Cir. Feb. 25, 2009) (per curiam) (Arizona conviction for aggravated assault under Arizona Revised Statutes 13-1204(A)(11) ("[i]ntentionally, knowingly or recklessly causing any physical injury to another person") was not a conviction for a "crime of violence" under USSG 2L1.2(b)(1)(A)(ii), as an "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," under U.S.S.G. 2L1.2 n. 1(b)(iii), because "Under the categorical approach, aggravated assault requires a mens rea of at least recklessness "under circumstances manifesting extreme indifference to the value of human life." Esparza-Herrera's statute of conviction, A.R.S. 13-1204(A)(11), encompassed ordinary recklessness, and therefore his conviction was not a conviction for generic aggravated assault or a crime of violence.").

AGGRAVATED FELONY - CRIME OF VIOLENCE - NEGLIGENT VEHICULAR MANSLAUGHTER DOES NOT CONSTITUTE "MANSLAUGHTER" WITHIN GUIDELINES
United States v. Gomez-Leon, 545 F.3d 777 (9th Cir. Sept. 24, 2008) (California conviction for vehicular manslaughter while intoxicated without gross negligence, in violation of Penal Code 192(c)(3) (1998), was not "crime of violence" for purposes of sentence enhancement under U.S.S.G. 2L1.2(b)(1)(A) for illegal reentry following conviction for qualifying felony, because the elements require only proof of ordinary negligence, so cannot fall within the contemporary meaning of manslaughter as enumerated in U.S.S.G. 2L1.2 cmt. 1(B)(iii)).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT WITH INTENT TO COMMIT RAPE
United States v. Bolanos-Hernandez, 492 F.3d 1140 (9th Cir. Aug. 6, 2007) (California conviction of assault with intent to commit rape, in violation of Penal Code 220, 261(a)(2), is crime of violence under the federal sentencing guidelines).

AGGRAVATED FELONY - CRIME OF VIOLENCE - SHOOTING AT INHABITED DWELLING
United States v. Narvaez-Gomez, 489 F.3d 970 (9th Cir. Jun. 6, 2007) (California conviction of under Penal Code 246 (maliciously and willfully discharge firearm at inhabited building or vehicle) did not categorically constitute a crime of violence under U.S.S.G. 2L1.2, application note 1(B)(iii) ("crime of violence" is a "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."), since the elements of this offense allow conviction for reckless or grossly negligent conduct, rather than requiring intentional use of force), holding that Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132 (9th Cir.2006) (en banc) (limiting categorical crimes of violence to offenses committed through intentional use of force against the person of another rather than reckless or grossly negligent conduct), abrogates United States v. Lopez-Torres, 443 F.3d 1182 (9th Cir. April 25, 2006).

AGGRAVATED FELONY - CRIME OF VIOLENCE - INTENT REQUIREMENT - GENERAL INTENT - INCLUDES RECKLESSNESS WHICH IS INSUFFICIENT TO CONSTITUTE A CRIME OF VIOLENCE
United States v. Narvaez-Gomez, 489 F.3d 970 (9th Cir. Jun. 6, 2007) (California general intent offenses, such as willfully and maliciously discharging a firearm at an inhabited dwelling, under Penal Code 246, permit conviction for conduct showing a conscious indifference to the probable consequence that one or more projectiles will strike the target; the "conscious indifference" intent element is equivalent to recklessness.), citing Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132 (9th Cir.2006) (en banc) (limiting categorical crimes of violence to offenses committed through intentional use of force against the person of another rather than reckless or grossly negligent conduct)

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 USC 16(b) - STALKING NOT AGGRAVATED FELONY SINCE IT PRESENTED A RISK THAT FORCE WILL RECKLESSLY BE USED IN THE COMMISSION OF THE OFFENSE, AND RECKLESS USE OF FORCE IS INSUFFICIENT TO QUALIFY AS CRIME OF VIOLENCE
Malta-Espinoza v. Gonzales, ___ F.3d ___, 2007 WL 624532 (9th Cir. March 2, 2007) (California conviction of stalking [harassing or following with threats], in violation of Penal Code 646.9, did not constitute an aggravated felony crime of violence, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), as defined by 18 U.S.C. 16(b), because it presented a substantial risk that that violent force will recklessly be used in the commission of the offense, and reckless use of force does not qualify as a crime of violence).

Lower Courts of Ninth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT
United States v. Sahagun-Gallegos, ___ F.3d ___, 2015 WL 1591446 (9th Cir. Apr. 10, 2015) (Arizona conviction of assault, under A.R.S. 13"1204(A), is overbroad with respect to 18 U.S.C. 16, because the definition of assault in subsection (1) of the Arizona statute includes simple recklessness, whereas a crime of violence requires a mens rea of at least heightened recklessness, see United States v. Gomez"Hernandez, 680 F.3d 1171, 1175 (9th Cir. 2012), and is divisible); see United States v. Cabrera"Perez, 751 F.3d 1000, 1004"05 (9th Cir. 2014).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT
United States v. Sahagun-Gallegos, ___ F.3d ___, 2015 WL 1591446 (9th Cir. Apr. 10, 2015) (Arizona conviction of assault, under A.R.S. 13"1203(A)(2) is categorically a crime of violence, under 18 U.S.C. 16, and INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), because it is an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another.); following United States v. Cabrera"Perez, 751 F.3d 1000, 1004"05 (9th Cir.2014).

AGGRAVATED FELONY - CRIME OF VIOLENCE - VEHICULAR HOMICIDE
United States v. Garcia-Espana, ___ F.Supp.2d ___, 2007 U.S. Dist. LEXIS 15696 (E.D. Wash. March 6, 2007) (defendant may not be convicted of illegal reentry after deportation, where INS erred in concluding that he was deportable because of his vehicular homicide conviction, which in turn, invalidated his deportation order, which violated his due process rights and therefore cannot serve as a predicate element of his 1326 conviction).

Tenth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT
United States v. Zuniga-Soto, 527 F.3d 1110 (10th Cir. Jun. 2, 2008) (Texas conviction for assault, in violation of Texas Penal Code 22.01(a)(1), is not categorically a crime of violence for illegal re-entry sentencing purposes because the statute includes reckless conduct).

Eleventh Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " THROWING A DEADLY MISSLE AT AN OCCUPIED VEHICLE
United States v. Estrada, ___ F.3d ___, 2015 WL 479969 (11th Cir. Feb. 6, 2015) (per curiam) (Florida conviction for throwing a deadly missile, a violation of Florida Statute 790.19, was not categorically a conviction for a crime of violence, for illegal reentry sentencing purposes, because We concluded that Estrella could be deemed to have been convicted of a crime of violence if his conviction was for wanton conduct, because Florida law defines wanton to mean that one has acted intentionally or with reckless indifference to the consequences and with knowledge that damage is likely to be done to some person. Id. at 1253. But if instead Estrella had been convicted of only malicious conduct, the latter was satisfied by knowledge that injury or damage would be done to a person or to property and, in that case, Estrella would not be deemed to have been convicted of a crime of violence.), following United States v. Estrella, 758 F.3d 1239 (11th Cir. 2014).

Other

AGGRAVATED FELONY " CRIME OF VIOLENCE " RECKLESSNESS " ATTEMPTED RECKLESSNESS
New York permits defendants to plead guilty to legally impossible crimes, including attempted reckless first-degree assault. See People v. Guishard, 15 A.D.3d 731, 789 N.Y.S.2d 332, 333 (2005) (affirming plea conviction to attempted assault in the first degree although the crime was a legal impossibility); Dale v. Holder, 610 F.3d 294, 302 (5th Cir. 2010). Compare, United States v. Gomez"Hernandez, 680 F.3d 1171, 1175"78 & n. 4 (9th Cir. 2012) (defendant's conviction for attempted aggravated assault qualified as a crime of violence because, under Arizona law, it is not possible to be convicted of attempt without specific intent).