Criminal Defense of Immigrants


§ 19.47 f. In Commission of the Offense

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An offense falls within this definition only if there is a substantial risk that violent force may be used “in the commission of the offense.” [469]  This gives rise to the argument that where the risk that violent force may be used arises after the offense has already been committed, the offense cannot be a crime of violence under 18 U.S.C. § 16(b).


                The Fifth Circuit held that a California conviction of possession of a dangerous weapon, a dagger,[470] does not constitute a crime of violence under 18 U.S.C. 16(b) because there is no substantial risk the offender might use violence in commission of the possession offense.[471]  Rather, the risk of force would only rise in the later and separate act of using the deadly weapon in the commission of another crime.  However, at least one court has held that possession of a sawed-off shotgun is a crime of violence based on the unexamined assumption that there is no other use for such an item.[472]  This conclusion appears to be at odds with the plain meaning of the statute, since the possession offense has already been committed before any use can occur. 

[469] 18 U.S.C. § 16(b).

[470] California Penal Code § 12020(a).

[471] United States v. Medina-Anicacio, 325 F.3d 638 (5th Cir. Mar. 24, 2003).  See also United States v. Fish, 368 F.3d 1200 (9th Cir. May 28, 2004) (Oregon conviction of possession of a destructive device, under Or. Rev. Stat. § 166.382, did not constitute “a crime of violence” under the United States Sentencing Guidelines to allow an increased offense level in determining sentencing).

[472] United States v. Delaney, 427 F.3d 1224 (9th Cir. Nov. 7, 2005) (California conviction of possession of a short-barreled shotgun, in violation of California Penal Code § 12020(a)(1), is a crime of violence for sentencing purposes, since short-barreled shotguns are “inherently dangerous,” their only use is violence, and thus their possession involves a substantial risk of the use of physical force); United States v. Hayes, 7 F.3d 144, 145 (9th Cir. 1993) (“sawed-off shotguns are inherently dangerous, lack usefulness except for violent and criminal purposes and their possession involves the substantial risk of improper physical force.”).