Section 16(b) of Title 18 requires that the elements of the offense of conviction establish a “substantial risk” that the defendant will intentionally use physical force against the person or property of another.  Courts have often taken great liberties with this requirement, failing to insist upon proof that this factor is in fact present.

 

The courts often find a “substantial risk” to exist based merely upon speculation about what might happen during the course of the offense.  The United States Supreme Court,[463] for example, has reasoned that a burglary of an inhabited (though temporarily unoccupied) dwelling presents a substantial risk that the defendant will assault the homeowner if s/he arrives home in flagrante delicto.[464]  The actual chances that the homeowner will in fact arrive home during the burglary are not considered.  Even if the homeowner arrives home, what are the chances the burglar will in fact use force in the commission of the offense?  Certainly many burglars will simply flee.  No statistics are offered by the courts.  If the chances of the former occurring are, say, less than 10%, and the chances of the latter are also less than 10%, then the chances that both will occur in any given burglary would be less than one percent.  It is hard for any balanced observer to describe something with a less than one per cent chance of occurrence as a “substantial risk.”  Counsel can attempt to offer actual statistics to substantiate this type of fact-based analysis in an effort to persuade a court that a given conviction does not in fact present such a substantial risk, and is therefore not an aggravated felony under this prong of the crime of violence definition.

 

                In Larin-Ulloa v. Gonzales,[465] the Fifth Circuit found that aggravated battery[466] defined as intentional physical contact with a deadly weapon in a “rude, insulting or angry manner” constituted a categorical crime of violence, as defined by 18 U.S.C. § 16(b):

 

We have little difficulty concluding, as did the BIA, that intentional physical contact made with a deadly weapon in a rude, insulting or angry manner is a crime of violence under section 16(b). Although the mere act of intentionally causing physical contact with a deadly weapon under these circumstances might not always involve a use of physical force (an issue we do not decide), the prohibited conduct is by its very nature provocative, and it invites a response from the victim of the offense. One who violates this part of section 21-3414(a)(1)(C) therefore necessarily creates a substantial risk that the confrontation will escalate to physical violence, thus requiring the perpetrator to use physical force against the victim.[467]

 

The Fifth Circuit has likewise held that unauthorized use of a motor vehicle is a crime of violence under 18 U.S.C. § 16(b), because it involves a substantial risk of damage to the motor vehicle in the course of the unauthorized use.[468]  This decision, however, does not appear to square with the Supreme Court’s requirement of intentional, as opposed to negligent, use of force in Leocal.  See § 19.40, supra.

 

In the context of statutory rape, the courts often illogically conclude that any offense in which the victim is not legally able to consent must necessarily involve a substantial risk that force will be used in the commission of the offense.  See § 19.92, infra.

 

[463] Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 383 (Nov. 9, 2004).  See also United States v. Reina-Rodriguez, 468 F.3d 1147 (9th Cir. Nov. 15, 2006) (Utah conviction of second-degree attempted aggravated burglary, under Utah Code Ann. § 76-6-203, is a crime of violence for illegal reentry sentencing purposes where the charging document and judgment of conviction show the conviction was for burglary of a dwelling); United States v. Valdez-Maltos, 443 F.3d 910 (5th Cir. Mar. 27, 2006) (Texas conviction of burglary of a habitation is a crime of violence for illegal re-entry sentencing purposes).  Discharge of a firearm into a building receives similar treatment. United States v. Martinez-Martinez, 468 F.3d 604 (9th Cir. Nov. 14, 2006) (Arizona conviction of discharging firearm at a residence, in violation of A.R.S. § 13-1211, did not categorically constitute a crime of violence for purposes imposing a 16-level sentence enhancement for illegal reentry, under USSG § 2L1.2(b)(1)(A)(ii), because the statute of conviction encompassed any structure capable of being occupied as a residence, even though it was not presently so occupied), distinguishing United States v. Cortez-Arizs, 403 F.3d 1111 (9th Cir. 2005) (California conviction of discharging a firearm at an “inhabited dwelling house,” one “currently being used for dwelling purposes, whether occupied or not,” in violation of Penal Code § 246, constituted a crime of violence for purposes imposing a 16-level sentence enhancement for illegal reentry, under USSG § 2L1.2(b)(1)(A)(ii)); Quezada-Luna v. Gonzalez, 439 F.3d 403 (7th Cir. Mar. 3, 2006) (Illinois conviction of aggravated discharge of a firearm, in violation of 720 ILCS § 5/24-1.2(a)(1), is an aggravated felony crime of violence for immigration purposes, because the offense required discharge of firearm into a building with reasonable knowledge that building was occupied, and therefore involved substantial risk of physical force against the person or property of another). 

[464] “In the act of committing a misdeed.”

[465] Larin-Ulloa v. Gonzales, 462 F.3d 456 (5th Cir. Aug. 24, 2006).

[466] Kan. Stat. Ann. 21-3414(a)(1)(C).

[467] Id. at 465-466.

[468] De La Paz Sanchez v. Gonzales, 473 F.3d 133 (5th Cir. Dec. 12, 2006) (per curiam) (Texas conviction of unauthorized use of a motor vehicle offense constitutes a crime of violence under 18 U.S.C. § 16(b) for removal purposes), following United States v. Galvan-Rodriguez, 169 F.3d 217, 219 (5th Cir. 1999); see Matter of Brieva-Perez, 23 I. & N. Dec. 766, 767-70 (BIA 2005) (Texas UUMV conviction was a crime of violence under § 16(b) and therefore an aggravated felony); cf. United States v. Charles, 301 F.3d 309, 314 (5th Cir. 2002) (en banc) (limiting Galvan-Rodriguez to its property aspects and to § 16(b) cases).

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(b) -- POSSESSION OF BURGLARY TOOLS
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts conviction for possession of burglarious tools, under M.G.L. ch. 266, 49, does not categorically constitute a crime of violence as defined at 18 U.S.C. 16, because it included neither an element of force under (a) nor the substantial risk that violent force would be used under (b)).

AGGRAVATED FELONY " CRIME OF VIOLENCE " HIGH SPEED FLIGHT
Sykes v. United States, ___ U.S. ___, 131 S.Ct. 2267 (Jun. 9, 2011) (Indiana conviction of felony vehicle flight falls within the definition of crime of violence for purposes of the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e), that closely resembles the crime of violence aggravated felony definition; high speed flight does not have, as an element, the use of force, but does create a serious potential risk of physical injury to another).

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 U.S.C. 16(b) - EMPIRICAL EVIDENCE ON QUESTION OF WHETHER SPECIFIC OFFENSE BY ITS NATURE INVOLVES A SUBSTANTIAL RISK OF INTENTION USE OF VIOLENT FORCE IN ITS COMMISSION
In considering whether an Illinois conviction of failure to report to jail constituted a "violent felony" under the Armed Career Criminal Act for sentence enhancement purposes, the Supreme Court relied in part on a Sentencing Commission Report. United States Sentencing Commission, Report on Federal Escape Offenses in Fiscal Years 2006 and 2007 (Nov. 2008), reprinted as Appendix A, Chambers v. United States, ___ U.S. ___, 129 S.Ct. 687, 2009 WL 63882 (Jan. 13, 2009). The Court reasoned:

The question is whether such an offender is significantly more likely than others to attack, or physically to resist, an apprehender, thereby producing a "serious potential risk of physical injury." 924(e)(2)(B)(ii). And here a United States Sentencing Commission report helps provide a conclusive, negative answer. See Report on Federal Escape Offenses in Fiscal Years 2006 and 2007, p. 6 (Nov.2008) (hereinafter Commission's Report), reprinted in part in Appendix B, infra. See also 473 F.3d, at 727 (Posner, J.) (urging that such research be done).

The Commission's Report identifies every federal case in 2006 or 2007 in which a federal sentencing court applied the Sentencing Guideline, "Escape, Instigating or Assisting Escape," 1 United States Sentencing Commission, Guidelines Manual 2P1.1 (Nov.2008), and in which sufficient detail was provided, say, in the presentence report, about the circumstances of the crime to permit analysis. The analysis included calculation of the likelihood that violence would accompany commission of the escape or the offender's later apprehension.

Of 414 such cases, 160 involved a failure to report either for incarceration (42) or for custody after having been temporarily released (118). Commission's Report 7; see also Appendix B, infra. Of these 160 cases, none at all involved violence-not during commission of the offense itself, not during the offender's later apprehension-although in 5 instances (3.1%) the offenders were armed. Ibid. The upshot is that the study strongly supports the intuitive belief that failure to report does not involve a serious potential risk of physical injury.

The three reported cases to which the Government points do not show the contrary. The Sentencing Commission culled its 160 instances from a set of federal sentences imposed over a period of 2 years. The Government apparently culled its three examples from a set of state and federal sentences imposed over a period of 30 years. Compare Eaglin, supra (CA9 1977) with Johnson, supra (Mo.Ct.App.2008). Given the larger set, the presence of three instances of violence is consistent with the Commission's data. Simple multiplication (2 years versus 30 years; federal alone versus federal-plus-state) suggests that they show only a small risk of physical violence (less than one in several thousand). And the Government provides no other empirical information.

Chambers v. United States, ___ U.S. ___, ___, 129 S.Ct. 687, 2009 WL 63882 (Jan. 13, 2009). This analysis, and approach, apply with equal force to the question whether a given conviction triggers aggravated felony immigration consequences as a crime of violence, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), on the theory that it qualifies under 18 U.S.C. 16(b) as an offense that, by its nature, involves a substantial risk that violent force will be used in its commission.

AGGRAVATED FELONY - CRIME OF VIOLENCE - AUTO THEFT
Nguyen v. Holder, 571 F.3d 524 (6th Cir. Jul. 2, 2009) (California conviction of auto theft, in violation of what is now codified at Penal Code 487(d)(i) (any person who (1) takes possession; (2) of an automobile; (3) owned or possessed by another; (4) by means of trespass and (5) with intent to permanently deprive the owner of such property; and (6) carries the automobile away), does not constitute a "crime of violence" under 18 U.S.C. 16(b), and is therefore not an aggravated felony under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for purposes of rendering the defendant deportable, because the theft offense does not by its nature, involve a "substantial risk" that physical force against the person or property of another may be used in the course of committing the offense).

BIA

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(b) -- ASSAULT WITH A DANGEROUS WEAPON
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts conviction for assault and battery with a dangerous weapon, under M.G.L. ch. 265, 15A, did not categorically constitute a crime of violence, under 18 U.S.C. 16(b), because the minimum conduct punishable under this statute did not create a substantial risk that the defendant would intentionally use physical force against person or property, since the minimum conduct included reckless conduct), applying Leocal v. Ashcroft, 543 U.S. 1 (2004).

AGGRAVATED FELONY " CRIME OF VIOLENCE " STALKING
Matter of Singh, 25 I. & N. Dec. 670 (BIA 2012) (California conviction for stalking, in violation of Penal Code 646.9(b), is an aggravated felony crime of violence, under 18 U.S.C. 16(b), for immigration purposes because when a course of conduct that is both serious and continuing in nature is coupled with a credible threat to another persons safety, there is a substantial risk that physical force may be used.), following Matter of Malta, 23 I&N Dec. 656 (BIA 2004), rev'd Malta-Espinoza v. Gonzales, 478 F.3d 1080, 1083-84 (9th Cir. 2007).

AGGRAVATED FELONY " CRIME OF VIOLENCE " SOLICITATION OF ASSAULT WITH A DEADLY WEAPON
Matter of Guerrero, 25 I&N Dec. 631 (BIA 2011) (Rhode Island conviction for violation of G.L.R.I. 11-1-9, solicitation to commit a felony, is a crime of violence under 18 U.S.C. 16(b), and triggers removal as an aggravated felony crime of violence with a sentence of one year imposed, where the charging document indicated that the noncitizen pleaded guilty to solicitation to commit assault with a deadly weapon), agreeing with United States v. Cornelio-Pena, 435 F.3d 1279, 1288 (10th Cir. 2006); Prakash v. Holder, 579 F.3d 1033, 1036-37 (9th Cir. 2009) (because there is a substantial risk that solicitation of rape and of assault will lead to violence, it is a crime of violence under 18 U.S.C. 16(b)).

AGGRAVATED FELONY " CRIME OF VIOLENCE " SOLICITATION
Matter of Guerrero, 25 I&N Dec. 631, 635 (BIA 2011) (Rhode Island conviction for criminal solicitation, in violation of R.I. Gen. L. 11-1-9, was a crime of violence where the crime solicited was assault: the State must show that the accused intended that the solicited crime, in this case assault with a dangerous weapon, would be committed. . . . [A]lthough the respondents solicitation offense can be committed without the use of force and before any actual force is used, this does not diminish the substantial risk of violence that solicitation of . . . assault inherently presents.); see Lopes v. Keisler, 505 F.3d 58, 63 (1st Cir. 2007) (Rhode Island conviction of assault is an aggravated felony crime of violence because it has as an element the attempted use, or threatened use of physical force against the person or property of another.); quoting 18 U.S.C. 16(a)).

AGGRAVATED FELONY " SOLICITATION " CRIME OF VIOLENCE
Matter of Guerrero, 25 I&N Dec. 631, 635 (BIA 2011) (Rhode Island conviction for criminal solicitation, in violation of R.I. Gen. L. 11-1-9, was a crime of violence where the crime solicited was assault: the State must show that the accused intended that the solicited crime, in this case assault with a dangerous weapon, would be committed. . . . [A]lthough the respondents solicitation offense can be committed without the use of force and before any actual force is used, this does not diminish the substantial risk of violence that solicitation of . . . assault inherently presents.); see Lopes v. Keisler, 505 F.3d 58, 63 (1st Cir. 2007) (Rhode Island conviction of assault is an aggravated felony crime of violence because it has as an element the attempted use, or threatened use of physical force against the person or property of another.); quoting 18 U.S.C. 16(a)).

AGGRAVATED FELONY - CRIME OF VIOLENCE - STALKING
United States v. Mohr, 554 F.3d 604 (5th Cir. Jan. 6, 2009) (South Carolina conviction for stalking, in violation of S.C.Code 1976 16-3-1700(B) is a crime of violence for purposes of the Armed Career Criminal Act; even though the judgment indicated that the defendant was convicted under the "non-violent" portion of the statute; the elements of the statute itself indicate that the offense involved a substantial potential risk of physical injury to another).

AGGRAVATED FELONY - CRIME OF VIOLENCE - CARJACKING
United States v. Velasquez-Bosqe, 601 F.3d 955 (9th Cir. April 15, 2010) (California conviction for violation of Penal Code 215, carjacking, is categorically a crime of violence for illegal re-entry sentencing purposes).

First Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(b) -- BREAKING AND ENTERING
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts conviction for breaking and entering with intent to commit a felony, M.G.L. ch. 266, 16, 18, did not categorically constitute a crime of violence, under 18 U.S.C. 16(b), because the minimum conduct punishable did not create a substantial risk that the defendant would use physical force against person or property, since the minimum conduct included nonviolent entries of rarely-occupied structures through unlocked doors or windows,; rejecting the governments argument that the court should look only to the typical case charged under the statute). NOTE: A conviction for breaking and entering a building with a sentence of imprisonment of one year or more, suspended or imposed, remains an aggravated felony under a different provision of the aggravated felony statute. 8 U.S.C. 1101(a)(43)(G) (theft offense or burglary offense with sentence of one year or more is aggravated felony); see Taylor v. United States, 495 U.S. 575, 599 (1990) (burglary defined as unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime).

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(a) -- POSSESSION OF BURGLARY TOOLS
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts conviction for possession of burglarious tools, under M.G.L. ch. 266, 49, does not categorically constitute a crime of violence as defined at 18 U.S.C. 16, because it included neither an element of force under (a) nor the substantial risk that violent force would be used under (b)).

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(b) -- POSSESSION OF BURGLARY TOOLS
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts conviction for possession of burglarious tools, under M.G.L. ch. 266, 49, does not categorically constitute a crime of violence as defined at 18 U.S.C. 16, because it included neither an element of force under (a) nor the substantial risk that violent force would be used under (b)).

AGGRAVATED FELONY - CRIME OF VIOLENCE - INDECENT ASSAULT AND BATTERY ON MINOR AGED 14
Ramirez v. Mukasey, 520 F.3d 47 (1st Cir. Mar. 14, 2008) (Massachusetts conviction of indecent assault on person aged 14, in violation of M.G.L.A. c. 265, 13H, is an aggravated felony crime of violence; although the statute may be violated by a merely offensive touching, the statute requires a showing of lack of consent, and therefore commission of the crime involves a substantial risk that violence will be used).

Second Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " SECOND-DEGREE ASSAULT
Morris v. Holder, 676 F.3d 309 (2d Cir. Apr. 23, 2012) (New York conviction for second-degree assault under New York Penal Law 120.05(2) categorically constitutes a crime of violence for the purposes of 18 U.S.C. 16(b), and is therefore an aggravated felony under INA 101(a)(43)(F), 8 U.S.C. 1101 (a)(43)(F), finding argument that the offense is not a crime of violence under 18 U.S.C. 16(a) because the crime does not require "physical force" to be inopposite because 16(b) does not require use of physical force).

AGGRAVATED FELONY " CRIME OF VIOLENCE " POSSESSION OF A WEAPON
Brooks v. Holder, 621 F.3d 88 (2d Cir. Sept. 17, 2010) (New York conviction of second degree possession of a weapon, in violation of N.Y. Penal Law 265.03(1)(b), punishing possession of a loaded firearm with intent to use against another, is an aggravated felony crime of violence for removal purposes, under INA 101 (a)(43)(F), 8 U.S.C 1101 (a)(43)(F), since offense involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.); accord, Henry v. Bureau of Immigration & Customs Enforcement, 493 F.3d 303 (3d Cir. 2007).

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 U.S.C. 16(b) -- MASSACHUSETTS CONVICTION OF ASSAULT ON OFFICER UNDER WANTON OR RECKLESS THEORY CONSTITUTED CRIME OF VIOLENCE UNDER 16(b) SINCE IT HAS A SUBSTANTIAL RISK THE DEFENDANT WILL USE FORCE TO COMMIT THE OFFENSE
Blake v. Gonzales, ___ F.3d ___, ___, 2007 WL 914865 (2d Cir. March 28, 2007) (Massachusetts statute defining offense of assault on police officer and other categories of public official, Massachusetts General Laws chapter 265, section 13D, under the wanton or reckless theory of assault, constitutes a crime of violence under 18 U.S.C. 16(b), since it offers a substantial risk the defendant will use force to commit the offense; the court found that Massachusetts law required physical or bodily injury to convict).

Fifth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 U.S.C. 16(b) "ATTEMPTED SEXUAL ASSAULT
Rodriguez v. Holder, 705 F.3d 207, (5th Cir. Jan. 16, 2013) (Texas conviction of attempted sexual assault, in violation of Texas Penal Code 22.011(a)(1(C) [(1) intentionally or knowingly: . . . (C) causes the sexual organ of another person, without that person's consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;], did not categorically constitute an aggravated felony crime of violence for immigration purposes, because in a sexual encounter with a physician or a clergyman [both contained within the statutory definition of without consent], a victim could factually assent to the sexual relation, despite consent being deemed a legal nullity. In such situations, there is not a substantial risk that physical force may be used because there is not the same risk that the victim may figure out what's really going on and decide to resist as there would be if, as in Zaidi, a victim could wake up and resist an ongoing assault.); quoting Zaidi v. Ashcroft, 374 F.3d 357, 358 (5th Cir.2004) (per curiam).

AGGRAVATED FELONY " CRIME OF VIOLENCE " HIGH SPEED FLIGHT
United States v. Vargas-Soto, 700 F.3d 180 (5th Cir. Oct. 24, 2012) (Texas conviction for evading arrest using a motor vehicle, in violation of Tex. Penal Code Ann. 38.04(b)(1), qualified as an aggravated felony crime of violence); following United States v. Sanchez"Ledezma, 630 F.3d 447, 451 (5th Cir. 2011) (same), cert. denied, ___ U.S. ___, 131 S.Ct. 3024, 180 L.Ed.2d 851 (2011).

AGGRAVATED FELONY " CRIME OF VIOLENCE " POSSESSION OF WEAPON
United States v. Marquez, 626 F.3d 214 (5th Cir. Nov. 10, 2010) (New Mexico violation of NMSA 30-22-16, possession of a deadly weapon by a prisoner, is a crime of violence for purposes of the armed career criminal act, since the offense involves a serious potential risk of injury to another).

AGGRAVATED FELONY " CRIME OF VIOLENCE " BURGLARY
United States v. Martinez-Garcia, 625 F.3d 196 (5th Cir. Oct. 27, 2010) (Georgia conviction of burglary, in violation of Ga.Code Ann. 16-7-1(a), constituted the Guidelines' enumerated crime of violence of burglary of a dwelling, for purposes of illegal reentry sentencing, because the term dwelling within the Georgia burglary statute comports with the ordinary, common meaning of that term, and does not now -- though it once did -- include structures within the cartilage); distinguishing United States v. Gomez-Guerra, 485 F.3d 301, 303-304 (5th Cir. 2007) (The ordinary, contemporary, common meaning of burglary of a dwelling does not extend to the grounds around the dwelling, and demands an entry into or remaining in the dwelling. . . . If a state burglary statute may be violated by entry only into the curtilage, a conviction under that statute is not a crime of violence. [internal quotes omitted]).

AGGRAVATED FELONY " CRIME OF VIOLENCE " POSSESSION OF PIPE BOMB
United States v. Schmidt, 623 F.3d 257 (5th Cir. Oct. 7, 2010) (federal violation of 18 U.S.C. 922(u), possession of a pipe bomb, is a violent felony for purposes of the Armed Career Criminal Act).

AGGRAVATED FELONY " CRIME OF VIOLENCE " POSSESSION OF SAWED OFF SHOTGUN
United States v. Lipscomb, 619 F.3d 474 (5th Cir. Sept. 13, 2010) (federal conviction for possession of a sawed-off shotgun, in violation of 18 USC 922(g) is a crime of violence for purposes of Armed Career Offender Act sentencing, since possession of a sawed-off shotgun creates a serious potential risk of physical injury).

AGGRAVATED FELONY - CRIME OF VIOLENCE - EVADING ARREST
United States v. Harrimon, 568 F.3d 531 (5th Cir. May 14, 2009) (Texas conviction for evading arrest or detention by use of a vehicle, in violation of Tex. Penal Code section 38.04(b)(1), is a "violent felony" under the Armed Career Criminal Act, since the offense presents a serious potential risk of physical injury to another).

AGGRAVATED FELONY - CRIME OF VIOLENCE - BURGLARY
United States v. Cardenas-Cardenas, 543 F.3d 731 (5th Cir. Sept. 25, 2008) (Texas conviction for burglary of a habitation, in violation of Texas Penal Code 30.02(a)(1), is a crime of violence for illegal re-entry purposes, since the offense is equivalent to "residential burglary."

AGGRAVATED FELONY - CRIME OF VIOLENCE - GRAND THEFT
United States v. Hawley, __ F.3d __, 2008 WL 239442 (5th Cir. Jan. 30, 2008) (California conviction for grand theft from a person, in violation of California Penal Code 487(2) is a "violent felony" for purposes of the Armed Career Criminal Act, as an offense that presents a serious potential risk of physical injury to another.)

AGGRAVATED FELONY - CRIME OF VIOLENCE - BANK ROBBERY
United States v. Dentler, 492 F.3d 306 (5th Cir. No. Jul. 3, 2007) (federal conviction in violation of 18 U.S.C. 2113(a), of attempted entry of a bank with intent to commit robbery, is not a crime of violence for Armed Career Criminal Act sentencing provisions).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT WITH DEADLY WEAPON
United States v. Dominguez, __ F.3d __, 2007 WL 441885 (5th Cir. Feb. 12, 2007) (Florida conviction for assault with a deadly weapon, in violation of Florida Statutes 784.045(1)(a), is a crime of violence for illegal re-entry sentencing purposes; although under that statute, an aggravated battery could be committed by merely touching someone with a deadly weapon without the use of force, such touching created a sufficient threat of force to qualify as a crime of violence).

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).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ROBBERY
Thap v. Mukasey, 544 F.3d 674 (6th Cir. Oct. 15, 2008) (California conviction of second-degree robbery, in violation of Penal Code 211, constitutes an aggravated felony crime of violence, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F) and 18 U.S.C. 16(b), since by its nature there is a substantial risk that physical force will be used in its commission, even though the elements require only force rather than physical force).

Seventh Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - KIDNAPPING BY PARENT
United States v. Franco-Fernandez, 511 F.3d 768 (7th Cir. Jan. 2, 2008) (Illinois offense of "putative father" child abduction, in violation of 720 ILL. COMP. STAT. 5/10-5(b)(3), is neither a crime of violence nor an aggravated felony for purposes of the increased offense levels specified in U.S.S.G. 2L1.2(b)(1)(A)(ii) and (b)(1)(C) for illegal reentry after deportation).

Eighth Circuit

AGGRAVATED FELONYMANSLAUGHTER - 18 U.S.C. 16(b) - MINNESOTA CONVICTION FOR SECOND-DEGREE MANSLAUGHTER NOT A COV SINCE NO SUBSTANTIAL RISK THAT THE ACTOR WILL INTENTIONALLY USE FORCE IN THE COMMISSION OF THE OFFENSE
United States v. Torres-Villalobos, 487 F.3d 607, ___, (8th Cir. May 9, 2007) (Minnesota conviction for second-degree manslaughter, in violation of Minn.Stat. 609.205, did not qualify as crime of violence, under 18 U.S.C. 16(b), and is therefore not an "aggravated felony," under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), since it does not "involve a risk that the perpetrator will intentionally use physical force in the course of committing the offense. A perpetrator's knowing disregard of a serious risk of injury, as required by the Minnesota manslaughter statute, is different from a robber or burglar ignoring the risk that he may resort to the intentional use of force in committing the offense."), overruling United States v. Moore, 38 F.3d 977, 981 (8th Cir. 1994) (decided under 18 U.S.C. 924(c)(3)); see also Omar v. INS, 298 F.3d 710, 715-17 (8th Cir. 2002) (holding that criminal vehicular homicide is a crime of violence under 16 for immigration purposes).

Ninth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " ROBBERY
United States v. Prince, __ F.3d __ (9th Cir. Nov. 24, 2014) (California conviction for violation of Penal Code 211, robbery, is a violent felony under the residual clause for purposes of the Armed Career Criminals Act, as an offense that poses a serious risk of physical injury to another).

AGGRAVATED FELONY " CRIMES OF VIOLENCE " EVADING AN OFFICER
United States v. Martinez, 771 F.3d 672 (9th Cir. Nov. 14, 2014) (California conviction under Vehicle Code 2800.2 for vehicle flight from a pursuing peace officer, was a "violent felony" under the ACCA's residual clause, 18 U.S.C. 924(e)(2)(B)(ii)).

AGGRAVATED FELONY " CRIME OF VIOLENCE " LEWD ACT WITH 15-YEAR-OLD
Rodriguez-Castellon v. Holder, 733 F.3d 847 (9th Cir. Oct. 22, 2013) (California conviction for lewd and lascivious acts upon a 15-year-old girl when the actor is at least ten years older, under Penal Code 288(c)(1), is a categorical crime of violence and therefore an aggravated felony, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), because this offense, in the ordinary case, poses a substantial risk of the use of physical force under 18 U.S.C. 16(b)). Note: Although not a positive case, the discussion does carefully address prior Ninth Circuit case law and has some very useful analysis distinguishing 18 U.S.C. 16(b), substantial risk analysis from the minimum-conduct analysis required for other portions of the Act, including Sexual Abuse of a Minor, Child Abuse, Domestic Violence, and 18 U.S.C. 16(a). Thanks to Joseph Justin Rollin.

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 US.C. 16(b) " POSSESSION OF SHORT-BARRELED SHOTGUN
United States v. Reyes, ___ F.Supp.2d ___, ___, 2012 WL 5389697 (N.D.Cal., 2012) (conviction of possession of a short-barreled shotgun is not a crime of violence within the meaning of 18 U.S.C. 16(b), because [T]he risk of physical force central to the definition of a crime of violence under 16(b) is the risk of its use in the course of committing the offense"its use in completing the crime.); noting that United States v. Dunn, 946 F.2d 615, 620"21 (9th Cir.1991), has been effectively overruled by Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004); see Covarrubias"Teposte v. Holder, 632 F.3d 1049, 1053 (9th Cir. 2011) (embracing the reasoning of Leocal in defining a crime of violence under 18 U.S.C. 16(b), the court held that a California conviction for shooting at an inhabited dwelling or vehicle under California Penal Code 246 was not categorically a crime of violence: In order to be a predicate offense under either 16 approach, the underlying offense must require proof of an intentional use of force or a substantial risk that force will be intentionally used during its commission.), citing United States v. Gomez"Leon, 545 F.3d 777 (9th Cir. 2008) (emphasis added).

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 U.S.C. 16(b) " FALSE IMPRISONMENT
Barragan-Lopez v. Holder, 705 F.3d 1112 (9th Cir. Jan. 29, 2013) (California conviction of false imprisonment, in violation of California Penal Code 210.5 [false imprisonment under 236, for purposes of protection from arrest, which substantially increases the risk of harm to the victim], is categorically a crime of violence under 18 U.S.C. 16(b), because it involves a substantial risk that force may be used, and petitioner was thus removable as an aggravated felon) under INA 101(a)(43)(F), 8 U.S.C. 1101(A)(43)(f)). Note: This case did not address California Penal Code 236 by itself, but rather as enhanced under Penal Code 210.5, which includes the additional element of specific intent of avoid arrest, substantially increasing the risk of harm to the victim.

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 US.C. 16(b) " POSSESSION OF SHORT-BARRELED SHOTGUN
United States v. Reyes, 907 F.Supp.2d 1068 (N.D.Cal., 2012) (conviction of possession of a short-barreled shotgun is not a crime of violence within the meaning of 18 U.S.C. 16(b), because [T]he risk of physical force central to the definition of a crime of violence under 16(b) is the risk of its use in the course of committing the offense"its use in completing the crime.); noting that United States v. Dunn, 946 F.2d 615, 620"21 (9th Cir.1991), has been effectively overruled by Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004); see Covarrubias"Teposte v. Holder, 632 F.3d 1049, 1053 (9th Cir. 2011) (embracing the reasoning of Leocal in defining a crime of violence under 18 U.S.C. 16(b), the court held that a California conviction for shooting at an inhabited dwelling or vehicle under California Penal Code 246 was not categorically a crime of violence: In order to be a predicate offense under either 16 approach, the underlying offense must require proof of an intentional use of force or a substantial risk that force will be intentionally used during its commission.), citing United States v. Gomez"Leon, 545 F.3d 777 (9th Cir. 2008) (emphasis added).

AGGRAVATED FELONY " CRIME OF VIOLENCE " KIDNAPPING
Delgado-Hernandez v. Holder, 697 F.3d 1125 (9th Cir. Oct. 9, 2012) (California conviction for attempted kidnapping under Penal Code 207(a) is categorically an aggravated felony crime of violence, because an ordinary case of kidnapping punished under the statute presents a substantial risk of force).

AGGRAVATED FELONY " CRIME OF VIOLENCE " RESIDENTIAL BURGLARY
Kwong v. Holder, ___ F.3d ___, 2011 WL 6061513 (9th Cir. Dec. 7, 2011) (California conviction of first-degree burglary, in violation of Penal Code 459, 460(a), constituted an aggravated felony crime of violence, since the abstract of judgment established the conviction was of first-degree burglary, as defined in Penal Code 460(a) -- burglary of an inhabited dwelling house, vessel ... which is inhabited and designed for habitation, floating home ..., or trailer coach ..., or the inhabited portion of any other building.); following United States v. Becker, 919 F.2d 568, 573 (9th Cir. 1990) (California conviction of first-degree burglary under Penal Code 459 is a crime of violence because it involves a substantial risk that physical force may be used in the course of committing the offense); Lopez"Cardona v. Holder, ___ F.3d ___, 2011 WL 5607634 (9th Cir. Nov. 18, 2011) (California conviction of first-degree burglary, in violation of California Penal Code 459, was a crime of violence within the meaning of 18 U.S.C. 16(b)), distinguishing United States v. Aguila"Montes de Oca, 655 F.3d 915 (9th Cir.2011) (en banc) (California conviction of first-degree burglary, under Penal Code 459, did not categorically constitute burglary).

AGGRAVATED FELONY " CRIME OF VIOLENCE " RESIDENTIAL BURGLARY
Lopez-Cardona v. Holder, ___ F.3d ___, 2011 WL 5607634 (9th Cir. Nov. 10, 2011) (California conviction for residential burglary, in violation of Penal Code 459, constitutes a crime of violence under 18 U.S.C. 16(b), and is therefore a particularly serious crime); see United States v. Becker, 919 F.2d 568 (9th Cir. 1990) (California conviction of first-degree burglary under California Penal Code 459 is categorically a crime of violence under 18 U.S.C. 16(b) because the crime inherently involves a substantial risk of physical force); Leocal v. Ashcroft, 543 U.S. 1, 10, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) (The reckless disregard in[18 U.S.C.] 16 relates not to the general conduct or to the possibility that harm will result from a person's conduct, but to the risk that the use of physical force against another might be required in committing a crime. The classic example is burglary. A burglary would be covered under 16(b) not because the offense can be committed in a generally reckless way or because someone may be injured, but because burglary, by its nature, involves a substantial risk that the burglar will use force against a victim in completing the crime.) (footnote omitted).

AGGRAVATED FELONY " BURGLARY " BURGLARY OF A DWELLING
United States v. Reina-Rodriguez, 655 F.3d 1182 (9th Cir. Sept. 13, 2011) (Utah conviction of second-degree burglary of a dwelling, under Utah Code Ann. 76"6"202(2), did not categorically constitute a burglary of a dwelling crime of violence under U.S.S.G. 2L1.2(b)(1)(A)(ii) & n.1(B)(iii), because Utah law defined dwelling more broadly than it is defined in the federal Guidelines definition of burglary of a dwelling); following United States v. Grisel, 488 F.3d 844, 851 n.5 (9th Cir.2007) (en banc) (state statutes do not categorically constitute burglary when they define it to include non-buildings adapted for overnight accommodation; courts must utilize the modified categorical approach to determine whether a dwelling in Utah meets the Guidelines' definition of dwelling.; A non-building adapted for accommodation"e.g., a vehicle or boat"may still qualify as a dwelling under the Guidelines, but it does not do so categorically.).

AGGRAVATED FELONY " CRIME OF VIOLENCE " HIGH SPEED FLIGHT
United States v. Snyder, 643 F.3d 694 (9th Cir. Jun. 30, 2011) (Oregon conviction for high speed flight, in violation of ORS 811.540(1), is a violent felony for purposes of the Armed Career Criminal Act), following Sykes v. United States, ___ U.S. ___, 131 S.Ct. 2267 (Jun. 9, 2011).

AGGRAVATED FELONY " CRIME OF VIOLENCE " BURGLARY
United States v. Park, ___ F.3d ___, 2011 WL 2418906 (9th Cir. Jun. 17, 2011) (California conviction of first-degree burglary, in violation of Penal Code 459, categorically constituted a crime of violence under U.S.S.G. 2K2.1(a) [in that it involves conduct that presents a serious potential risk of physical injury to another . U.S.S.G. 4B1.2(a)] for purposes of the Armed Career Criminal Act).

AGGRAVATED FELONY - CRIME OF VIOLENCE - THEFT
United States v. Alderman, 601 F.3d 949 (9th Cir. Apr. 15, 2010) (Washington conviction for violation of RCW 9A.56.030, theft from the body of a person, was a crime of violence for purposes of the ACCA, because of the risk of use of force in commission of the offense).

AGGRAVATED FELONY - CRIME OF VIOLENCE - CARJACKING
United States v. Velasquez-Bosqe, 601 F.3d 955 (9th Cir. April 15, 2010) (California conviction for violation of Penal Code 215, carjacking, is categorically a crime of violence for illegal re-entry sentencing purposes).

AGGRAVATED FELONY - CRIME OF VIOLENCE - CARJACKING
Nieves-Medrano v. Holder, ___ F.3d ___, 2010 WL 27339 (9th Cir. Jan. 7, 2010) (California conviction of carjacking, in violation of Penal Code 215, with sentence to three years imprisonment, constituted a categorical aggravated felony "crime of violence" under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F): "Although the definition in U.S.S.G. 2L1.2 differs slightly from that used for immigration cases, 8 U.S.C. 1101(a)(43)(F) ("crime of violence" defined by 18 U.S.C. 16), there is no meaningful distinction for purposes of this petition."); following United States v. Becerril-Lopez, 541 F.3d 881, 893 (9th Cir. 2008) ("[W]e hold that a conviction under Cal.Penal Code 211 could only result from conduct that constitutes a 'crime of violence' for purposes of U.S.S .G. 2L1.2.").

AGGRAVATED FELONY - CRIME OF VIOLENCE - KIDNAPPING
Delgado-Hernandez v. Holder, 581 F.3d 1059 (9th Cir. Sept. 9, 2009) (California conviction of kidnapping, in violation of California Penal Code 207(a), constitutes a crime of violence under 18 U.S.C. 16(b), and is thus an aggravated felony under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F); kidnapping inherently involves a direct confrontation with a victim who is forced or frightened into being moved involuntarily, which creates a substantial risk of the use of force). NOTE: This decision seems to ignore a form of kidnapping, explicit in the statute, that would not involve a risk of force: "For purposes of those types of kidnapping requiring force, the amount of force required to kidnap a resisting infant or child is the amount of physical force required to take and carry the child away a substantial distance for an illegal purpose or intent." California Penal Code 207(e).

AGGRAVATED FELONY -CRIME OF VIOLENCE- RISK FORCE WILL BE USED IN COMMISSION OF OFFENSE
Prakash v. Holder, 579 F.3d 1033 (9th Cir. Aug. 26, 2009) (California conviction for violation of Penal Code 653f(c), solicitation to commit rape by force, and Penal Code 653f(a), solicitation to commit assault by force likely to produce great bodily injury, are aggravated felony crimes of violence for immigration purposes, since solicitation of rape by force creates a substantial risk of the use of force). NOTE: Although acknowledging that the solicitation may be committed without use of force, the court dismissed the argument that there was no risk of the use of in the commission of the solicitation, stating,

The words in the statute "in the course of committing the offense" require a causal link between the crime and the physical force-a substantial risk, in this case, that the solicitation of rape and of assault will lead to violence. Those words do not impose a chronological limitation. It is the risk of violence flowing from a given crime that this statute is concerned with, not necessarily when in a chronological sequence the violence occurs. Prakash has not identified any logical reason why violence that might take place a few minutes, hours, or even days after the solicitation to commit rape or assault has been committed should be disregarded, or why the statute should be interpreted in that fashion. We see no reason to do so. . . . Similarly, for the purpose of determining whether the offense of solicitation is a crime of violence, whether there is a substantial risk that physical force will be used in the course of committing the offense properly extends to the intended result of the solicitation.

Id. at 1037. But see United States v. Medina-Anicacio, 325 F.3d 638 (5th Cir. 2003); United States v. Fish, 368 F.3d 1200 (9th Cir. 2004) (Oregon conviction for possession of a destructive device not a crime of violence).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ROBBERY
United States v. Becerril-Lopez, 528 F.3d 1133 (9th Cir. Jun.12, 2008) (California conviction of robbery, in violation of Penal Code 211, constituted crime of violence, for purposes of 16-level enhancement of illegal reentry sentence under USSG 2L1.2(b), which contains no reference to 18 U.S.C. 16(b)), distinguishing United States v. McDougherty, 920 F.2d 569, 574 (9th Cir. 1990) (holding California robbery, under Penal Code 211, constituted a crime of violence under USSG 4B1.2 commentary language as well as 18 U.S.C. 16(b), covering any felony that involved a "substantial risk" that physical force may be used "against the person or property of another", a definition broader than the definition contained in 4B1.2 alone, which identified only those crimes presenting a substantial risk of physical injury to another person (not to property).).

AGGRAVATED FELONY - CRIME OF VIOLENCE - FIREARMS POSSESSION
United States v. Crampton, 519 F.3d 893 (9th Cir. Mar. 10, 2008) (Oregon conviction for possession of a short-barreled shotgun, in violation of ORS 166.272(a), is a crime of violence for purposes of the Armed Career Criminal Act, because of the substantial risk of force).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ESCAPE FROM PRISON DOES NOT CATEGORICALLY CONSTITUTE A CRIME OF VIOLENCE WHERE STATUTE DOES NOT DISTINGUISH BETWEEN VIOLENT AND NON-VIOLENT ESCAPES
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."), constitutes a crime of violence under U.S.S.G. 4B1.2(a) (including as "crimes of violence" offenses with an element of force, or a listed offense, "or otherwise involves conduct that presents a serious potential risk of physical injury to another.") for purposes of enhancing a sentence for a federal firearms offense, where plea colloquy revealed defendant's admission he escaped from a jail, as opposed to a facility from which he was permitted to enter and leave: "The potential risk of injury to others during an escape from a guarded facility is as great whether or not the escapee is observed and there is an attempt to stop him. Thus even were the facts of Savage's "clean getaway" noticeable under the modified categorical analysis, they would not bear on the potential for risk of injury to others.").

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT IN THIRD DEGREE
United States v. Rendon-Duarte, 482 F.3d 1080, 1085 (9th Cir. March 21, 2007) (Alaska conviction of Assault in the Third Degree, in violation of Alaska Statute 11.41.220(a)(1) ("recklessly (A) places another person in fear of imminent serious physical injury by means of a dangerous instrument."), constituted a crime of violence under U.S.S.G. 4B1.2(a)(2)(2005) ("any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that . . . (2) ... involves conduct that presents a serious potential risk of physical injury to another."), for purposes of enhancing sentence for a federal conviction for being a felon in possession of firearms, in violation of in violation of 18 U.S.C. 922(g)(1) & 924(a)(2): "Whether the conduct was reckless or not has no bearing on the applicability of subsection (2) of the Guidelines.").

AGGRAVATED FELONY - STALKING - CRIME OF VIOLENCE
Malta-Espinoza v. Gonzales, __ F.3d __ , 2007 WL 624532 (9th Cir. Mar. 2, 2007) (California stalking conviction, in violation of Penal Code 649.9, is not an aggravated felony crime of violence for immigration purposes, since even the more serious portion of the statute does not necessarily create a risk that force may be used; the California stalking statue requires an intent to create fear, but not require intent to carry out the threat - the statute may be violated even if the defendant was incarcerated or thousands of miles away and completely unable to carry out the threat.) http://caselaw.lp.findlaw.com/data2/circs/9th/0471140p.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 USC 16(b) - STALKING NOT AGGRAVATED FELONY SINCE IT MIGHT HAVE BEEN COMMITTED BY HARASSMENT FROM A DISTANCE, WHICH DOES NOT PRESENT A SUBSTANTIAL RISK THAT VIOLENT FORCE WILL INTENTIONALLY BE USED IN THE COMMISSION OF THE OFFENSE
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 the offense might have been committed by harassment from a distance, which does not present a substantial risk that violent force will be used in the commission of the offense).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ROBBERY
United States v. David H., 29 F.3d 489, 494 (9th Cir. 1994) (California conviction of robbery, in violation of Penal Code 211, constitutes a crime of violence under 18 U.S.C. 5032, which dictates when juvenile offenders may be transferred to adult status, relying on "crime of violence" definition contained in 18 U.S.C. 16(b), although 5032 contained no definition of "crime of violence" of its own), citing United States v. Baker, 10 F.3d 1374, 1393-94 (9th Cir. 1993).

Tenth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - BURGLARY
United States v. Rivera-Oros, 590 F.3d 1123 (10th Cir. Dec. 29, 2009) (Arizona conviction of second degree burglary, in violation of Ariz.Rev.Stat. Ann. 13-1507(A), is a "crime of violence" for illegal re-entry sentencing purposes, since the "crime of violence" definition at U.S.S.G. 2L1.2(b)(1), includes "burglary of a dwelling," which may include mobile dwellings), distinguishing Taylor v. United States, 495 U.S. 575, 598 (1990).

AGGRAVATED FELONY - CRIME OF VIOLENCE - BURGLARY - "DWELLING"
United States v. Rivera-Oros, 590 F.3d 1123 (10th Cir. Dec. 29, 2009) (burglary of a "dwelling" includes any "enclosed space that is used or intended for use as a human habitation," including mobile homes, house boats, camp structures, and hotel rooms).

AGGRAVATED FELONY - CRIME OF VIOLENCE - BURGLARY - TAYLOR DOES NOT CONTROL SENTENCING CASES USING PHRASE "BURGLARY OF A DWELLING"
United States v. Rivera-Oros, 590 F.3d 1123 (10th Cir. Dec. 29, 2009) (Taylor definition of "burglary" does not control decision of meaning of "burglary of a dwelling," which is enumerated in the list of crimes considered to be crimes of violence for illegal re-entry sentencing purposes), following United States v. Murillo-Lopez, 444 F.3d 337 (5th Cir. 2006), disagreeing with United States v. Wenner, 351 F.3d 969 (9th Cir. 2003) (applying Taylor definition of burglary to illegal re-entry sentencing case).

Eleventh Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " AGGRAVATED FLEEING
Dixon v. U.S. Atty. Gen., 768 F.3d 1339 (11th Cir. Oct. 1, 2014) (Florida conviction for aggravated fleeing, Fla. Stat. 316.1935(4)(a), is categorically a crime of violence under 18 U.S.C. 16(b), for purposes of triggering deportation under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), because it involves a substantial risk that intentional violent force will be used in the commission of the offense).

Other

AGGRAVATED FELONY " CRIME OF VIOLENCE " RESISTING EXECUTIVE OFFICER
People v. Nishi, 207 Cal.App.4th 954, 143 Cal.Rptr.3d 882 (1st Dist. Jul. 13, 2012) (California Penal Code 69, attempting to deter or resist an executive officer in the performance of duty, is affirmed where the prosecution established the elements of the offense by substantial evidence; the central requirement of an offense under 69 is an attempt to deter an executive officer from performing his or her duties imposed by law; unlawful violence, or a threat of unlawful violence, is merely the means by which the attempt is made; such threat is limited to a threat of unlawful violence used in an attempt to deter the officer).