(C)  Recklessness.  By finding that the phrase “use of force” requires active employment of force, Leocal called into serious doubt a number of earlier decisions that have found recklessness sufficient.[489]  The court in Leocal stated that it did not need to resolve the question of whether an offense that could be committed recklessly could qualify as a crime of violence under 18 U.S.C. § 16.  In dictum, however, the Court noted that “[t]he reckless disregard in § 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.”[490] 

 

                Leocal thus analytically broke down the vague concept of “recklessness” into three different parts:

 

                (1)  Simple or “Pure Recklessness.”  This is a mere reckless mens rea with respect to the commission of the offense in question, and is insufficient to establish a crime of violence under either 18 U.S.C. § 16(a) or 16(b).

 

                (2)  Reckless Disregard of the Risk that Harm or Injury Will Result from the Commission of the Offense.  The court also stated that this form of recklessness is insufficient to establish a crime of violence under either 18 U.S.C. § 16(a) or 16(b).

 

                (3)  Reckless Disregard of the Risk that the Defendant Will be Required Intentionally to Use Violent Force to Commit the Offense.  The court implied — without holding — that the only form of recklessness as a mens rea element of a criminal statute that might be sufficient to qualify as a crime of violence would be mental elements that establish a reckless disregard of a substantial risk that the defendant would be required intentionally to use violent force in the commission of the offense.  Thus, the recklessness involved must relate to a substantial risk that the defendant would be required intentionally to use violent force to commit the offense.  This form of recklessness is not sufficient to qualify as a conviction under 18 U.S.C. § 16(a), because there is no element requiring the attempt, threat, or use of intentional force.  This form of recklessness — conscious disregard of a substantial risk — can qualify – if at all – only under 18 U.S.C. § 16(b).[491]

                (4)  Judicial Decisions.  Decisions of the courts of appeal following Leocal have generally followed the analysis given above.  Decisions handed down prior to Leocal should be critically evaluated to determine whether Leocal has implicitly overruled them or their analysis is inconsistent with Leocal.

 

The Third Circuit has held, in light of Leocal, that a mens rea of “pure” recklessness is not sufficient to qualify as a crime of violence under 18 U.S.C. § 16(a):[492]

 

The active employment of force, generally to achieve some end, corresponds closely to the concept of intent, not recklessness. Intent means a “[a] state of mind in which a person seeks to accomplish a given result through a course of action.” Black’s Law Dictionary 810 (6th ed.1990). The idea of purposeful action, of actively employing a means to achieve an end, is an essential component of both “use” and “intent,” and is absent from the concept of “recklessness.” We therefore hold that the “use of force” in § 16(a) requires specific intent to use force.[493]

 

The court went further to say that recklessness, or at least “pure” recklessness, is not sufficient under 18 U.S.C. § 16(b):

 

As to [§ 16(b)], a defendant’s commission of a crime that, by its nature, is likely to require force similarly suggests a willingness to risk having to commit a crime of specific intent. For example, a burglar of a dwelling risks having to use force if the occupants are home and hear the burglar. In such a case, the burglar has a mens rea legally nearly as bad as a specific intent to use force, for he or she recklessly risks having to commit a specific intent crime.  In [United States v. Parson, 955 F.3d 858, 866 (3d Cir. 1992)], we went on to contrast the requirement of § 16(b), in which the actor runs a risk of intentionally using force, with the lower mens rea that we characterized as “pure” recklessness.  We noted that crimes like reckless endangering and drunk driving, though they involve a serious risk of injuring others, do not involve any risk of intentional harm or use of force.[494]

 

In finding that a conviction for reckless burning was not a crime of violence, the court found that the “statute does not contemplate a risk that the reckless burning offender will step in and commit an intentional act of violence; instead, the only risk is that his initial reckless act will cause further damage.”[495]  Thus, for the purposes of 18 U.S.C. § 16(b), the court draws a line between a reckless disregard of the possible effects of a person’s conduct, and a reckless disregard of the possibility that the actor may be required to use force in the commission of the offense.[496]  The court noted that other circuit courts have drawn the same distinction,[497] and suggested that those cases that have held that “pure” recklessness is sufficient for purposes of 18 U.S.C. § 16(b)[498] have likely been abrogated by Leocal.  At least two other circuits have agreed with this analysis.[499]

 

                The Ninth Circuit has now explicitly withdrawn from its prior decisions[500] holding that recklessness is sufficient to meet the crime of violence definition under 8 U.S.C. § 16.  In Fernandez-Ruiz v. Gonzales,[501] the court found that a misdemeanor Arizona conviction of domestic violence assault[502] could not constitute a crime of violence under 18 U.S.C. § 16(a), because the Arizona statute permitted conviction when a defendant recklessly but unintentionally caused physical injury to another.  Although not reaching the issue of whether recklessness (or which type of recklessness) would be sufficient under 18 U.S.C. § 16(b), the court cited and relied heavily upon the analysis of the Third Circuit.

[489] See, e.g., United States v. Ceron-Sanchez, 222 F.3d 1169 (9th Cir. Dec. 10, 2004); Park v. INS, 252 F.3d 1018 (9th Cir. 2001); United States v. Campos-Fuerte, 357 F.3d 956 (9th Cir. Feb. 4, 2004); United States v. Grajeda-Ramirez, 348 F.3d 1123 (9th Cir. Nov. 12, 2003).

[490] Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 383 (Nov. 9, 2004).

[491] See United States v. Chapa-Garza, 243 F.3d 921, 926-927 (5th Cir. 2001) (finding pure recklessness insufficient, but this form of reckless disregard of the risk that force may be necessary in commission of an offense to be sufficient to qualify as a crime of violence).

[492] Tran v. Gonzales, 414 F.3d 464 (3d Cir. July 12, 2005) (Pennsylvania conviction of “reckless burning or exploding,” in violation of 18 Pa.C.S.A. § 3301(d)(2), did not constitute a crime of violence under 18 U.S.C. § 16(b), and was therefore not an aggravated felony crime of violence, since the crime required only a reckless mens rea, and involved no risk that the defendant would intentionally use force in the commission of the crime).  See also Singh v. Gonzales, 432 F.3d 533 (3d Cir. Jan. 3, 2006); Oyebanji v. Gonzales, 418 F.3d 260 (3d Cir. Aug. 11, 2005); Popal v. Gonzalez, 416 F.3d 249 (3d Cir. July 29, 2005).

[493] Tran v. Gonzales, 414 F.3d at 470-471 (3d Cir. July 12, 2005).

[494] Id. at 471 (internal block quotation and citations omitted).

[495] Id. at 472-273.

[496] Id. at 472, citing Leocal v. Ashcroft, 125 S.Ct. at 383 n.7 (“[t]he ‘substantial risk’ in § 16(b) relates to the use of force, not to the possible effect of a person’s conduct.”). 

[497] See Jobson v. Ashcroft, 326 F.3d 367, 372-73 (2d Cir. 2003); United States v. Chapa-Garza, 243 F.3d 921, 925-27 (5th Cir. 2001); Bazan-Reyes v. INS, 256 F.3d 600, 610-11 (7th Cir. 2001).

[498] Omar v. INS, 298 F.3d 710, 715-16 (8th Cir. 2002); Tapia Garcia v. INS, 237 F.3d 1216, 1222 (10th Cir. 2001); Le v. United States Att’y Gen., 196 F.3d 1352, 1354 (11th Cir. 1999).

[499] Garcia v. Gonzales, 455 F.3d 465 (4th Cir. Jul. 26, 2006) (BIA interpretation of the “substantial risk” requirement in 18 U.S.C. § 16(b), looking to whether “by its nature, the offense involves that in the course of committing it the offender will intrinsically employ power, violence, or pressure against a person or thing” is foreclosed by Leocal v. Ashcroft, 543 U.S. 1, 10 (2004) (footnote omitted) (italics in original), which held in order for there to be a crime of violence sufficient to trigger deportation, “[t]he reckless disregard [requirement] in § 16 [must], relate 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.”); Urrutia v. Gonzales, 413 F.3d 444 (4th Cir. July 5, 2005) (Virginia conviction for simple involuntary manslaughter, in violation of Va. Code Ann. § 18.2-36, which requires the killing of a person as a proximate result of the defendant’s reckless disregard for human life, did not constitute a crime of violence aggravated felony); United States v. Perez-Vargas, 414 F.3d 1282 (10th Cir. 2005).

[500] See United States v. Hermoso-Garcia, 413 F.3d 1085 (9th Cir. 2005); United States v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir. 2001); Park v. INS, 252 F.3d 1018 (9th Cir. 2001); United States v. Ceron-Sanchez, 222 F.3d 1169 (9th Cir. 2000).

[501] Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. Oct. 26, 2006).  See also 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 involve the “violent use of force,” as required under Armed Career Criminal Act, 18 U.S.C. § 921(a)(33)(A)(ii), under a modified categorical analysis, since nothing in the record of conviction establishes that the defendant acted with a mental state greater than recklessness).

[502] Ariz. Rev. Stats. § 13-1203(A)(1) (“[i]ntentionally, knowingly, or recklessly causing any physical injury to another”).

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).