(A)  Negligence and Strict Liability.   In line with some earlier lower court decisions,[478] the United States Supreme Court unanimously found in Leocal v. Ashcroft,[479] that a Florida conviction for driving under the influence causing serious bodily injury[480] did not constitute an aggravated felony as a crime of violence, for purposes of triggering deportation, since the offense did not have a mens rea requirement in excess of strict liability or negligence, sufficient to meet the statutory requirement of use of force in the commission of the offense under either 18 U.S.C. § 16(a) or (b).  The court employed a common-sense interpretation of the words of the statute:

 

The critical aspect of § 16(a) is that a crime of violence is one involving the “use . . . of physical force against the person or property of another.” (Emphasis added.) As we said in a similar context in Bailey, “use” requires active employment.  While one may, in theory, actively employ something in an accidental manner, it is much less natural to say that a person actively employs physical force against another person by accident. Thus, a person would “use . . . physical force against” another when pushing him; however, we would not ordinarily say a person “use[s] . . . physical force against” another by stumbling and falling into him. When interpreting a statute, we must give words their “ordinary or natural” meaning.  The key phrase in § 16(a)--the “use . . . of physical force against the person or property of another”--most naturally suggests a higher degree of intent than negligent or merely accidental conduct.  Petitioner’s DUI offense therefore is not a crime of violence under § 16(a).[481] 

 

The rationale of this decision — that an offense must involve a mens rea greater than strict liability or negligence to qualify as an aggravated felony crime of violence — applies to any criminal offense.  The courts of appeal are applying this reasoning to hold that other offenses that allow conviction for merely negligent conduct cannot be considered crimes of violence under the aggravated felony definition.[482]

[478] See, e.g., United States v. Contreras-Salas, 387 F.3d 1095 (9th Cir. Nov. 3, 2004) (Nevada conviction of child abuse under Nev. Rev. Statutes § 200.508, does not qualify as a crime of violence for purposes of enhancement of sentence for unlawful re-entry after deportation, since statute may be violated by negligence alone, and the record of conviction was unclear as to the level of intent of which the defendant was convicted); United States v. Pimental-Flores, 339 F.3d 959 (9th Cir. Aug. 11, 2003) (Washington conviction of third-degree assault in violation of court order, under Rev. Code of Washington § 26.50.110(4) may fail to trigger a 16-level illegal re-entry sentence enhancement, as a crime of violence under U.S.S.G. § 2L1.2 (2001), because the statute proscribes merely negligent assault).

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

[480] Florida Stats. Ann. § 316.193(3)(c).

[481] Leocal v. Ashcroft, 543 U.S. 1, 9, 125 S.Ct. 377, 382 (Nov. 9, 2004).

[482] Lara-Cazares v. Gonzales, 408 F.3d 1217 (9th Cir. May 23, 2005) (California conviction of gross vehicular manslaughter while intoxicated, in violation of Penal Code § 191.5(a), which can be committed by gross negligence, does not qualify as a crime of violence within the meaning of 18 U.S.C. § 16); Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. Jan. 12, 2005) (California conviction of evading an officer, in violation of Vehicle Code § 2800.2(a), was not a crime of violence, because the statute and charge were both overbroad with respect to the definition of a crime of violence by encompassing merely negligent conduct), overruled on other grounds by Gonzales v. Duenas-Alvarez, 549 U.S. __, 127 S.Ct. 815 (Jan. 17, 2007).

BIA

AGGRAVATED FELONY " CRIME OF VIOLENCE " INTENT
Matter of Singh, 25 I. & N. Dec. 670 (BIA 2012) (an offense that may be committed recklessly may still be considered an aggravated felony crime of violence under 18 U.S.C. 16(b)).

Second Circuit

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).

Third Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 U.S.C. 16(b) " RECKLESS MENS REA DOES NOT NECESSARILY BAR CRIME OF VIOLENCE UNDER 18 U.S.C. 16(b)
Aguilar v. Attorney General of the U.S., ___ F.3d ___, 2011 WL 5925141 (3d Cir. Nov. 29, 2011) (Pennsylvania conviction of sexual assault, under 18 Pa. Cons.Stat. 3124.1, constituted a crime of violence under 18 U.S.C. 16(b), and was therefore an aggravated felony under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), even though the offense has a minimum mens rea of recklessness; because sexual assault raises a substantial risk that the perpetrator will intentionally use force in furtherance of the offense, we agree with the BIA that it constitutes a crime of violence under 16(b).).

Fifth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - BURGLARY
United States v. Constante, 544 F.3d 584 (5th Cir. Oct. 6, 2008) (Texas conviction for burglary, in violation of Texas Penal Code 30.02(a)(3) [enters a building or habitation and commits or attempts to commit a felony, theft, or an assault] did not constitute a crime of violence for ACCA purposes where statute of conviction does not require specific intent).